The Existence Of Lacunas Law General Essay

Published Date: 02 Nov 2017

5.1 Introduction

The barriers in access to non-ADR justice explored in chapter four are reviewed and analyzed, carefully to check their health either their existence qualifies the evaluation methods or not.

In a fast developing age, the instruments and approaches to measure and analyze ‘paths to justice’ cannot remain valid for a long time. It is hoped that what the researcher will assess today, as positive or negative, when they will be re-evaluated, it will have a significant impact on reforms in legislation, political infrastructure and dispute resolution processes as "Itself the term "path" suggests less uniformity and abundance of variation within certain intervals." [1] 

Empirical research demonstrates that people employ different strategies to select the best ways to resolve the mutual disputes, quickly without spending any money. Each jurisdiction in the world either it is from developing country or from developed country provide the opportunity and reliable paths to approach and identify the issues in any conflict. The existence of lacunas where people do not trust on non-ADR systems and prefer the satisfaction, force them to follow ADR paths to justice. The following analysis will support the findings, the researcher has explored as described in previous chapters.

5.2 Analysis of Study

While analysing the paths to ‘access to justice’, we assume "a path begins when the user first addresses the process. This first active and deliberative involvement of the user into the process could be explicated through different acts, searching for information, acceptance of advice, filing documents, etc. The path ends when the user receives an outcome from the process. An outcome could be a final decision by a mediator, a joint agreement of the parties, or an end to the process because one of the parties quits." [2] 

To authenticate this study, use of different tools, criteria’s and models considered getting fair and true results, have been used. "Having an ideal model, would make the assessment process far easier and lend itself to the creation of a single assessment template. However, there is no consensus, in the global justice community or among justice scholars, on what this model should look like. Even in an organization such as the World Bank, the views of those engaged in the justice sector work differ markedly." [3] 

In this study, "access to justice has been measured in varying ways, often dependant on the discipline carrying out the research. Psychologists focus on the procedural and distributive justice needs of users" [4] while economists are more interested in the costs associated with a given procedure. The tools described in brief are as following:

5.2.1 Indexes and Scales

The terms are used imprecisely and interchangeably in social research. Typically, both scales and indices employ multiple observations or items of measurement. [5] 

"An index is a set of items (questions) that structures or focuses multiple yet distinctly related aspects of a dimension or domain of behavior, attitudes, or feelings into a single indicator or score. They are sometimes called composites, inventories, tests, or questionnaires. Like scales, they can measure aptitude, attitude, interest, performance, and personality, but the only kind of validity they have is convergent (hanging together), content, and face validity. " [6] 

"Indexes are usually at the ordinal, but mostly interval level. Indexes can be predictive of outcomes (using statistical techniques like regression), but they are designed mainly for exploring the relevant causes or underlying symptoms of traits (like criminality, psychopathy, or alcoholism). Indexes are usually administered in the form of surveys or questionnaires. It's only at the time of report writing that you claim to have developed an index. You'll need an ideal response rate of 35% on your questionnaire, and at least a 5-point Likert scale for the response categories." [7] 

A scale is a type of composite measure that is composed of several items that have a logical or empirical structure among them. That is, scales take advantage of differences in intensity among the indicators of a variable. The most commonly used scale is the Likert scale, which contains response categories such as "strongly agree," "agree," "disagree," and "strongly disagree." Other scales used in social science research include the Thurstone scale, Guttman scale, Bogardus social distance scale, and the semantic differential scale. [8] 

The Likert scale is one of the most commonly used scales in the research community. The scale consists of assigning a numerical value to intensity (or neutrality) of emotion about a specific topic, and then attempts to standardize these response categories to provide an interpretation of the relative intensity of items on the scale. Responses such as "strongly agree," "moderately agree," "moderately disagree," and "strongly disagree" are responses that would likely be found in a Likert scale, or a survey based upon the scale. [9] 

Thurstone scaling is quite unlike Bogardus or Likert scaling. Developed by Louis Thurstone, this scale is a format that seeks to use respondents both to answer survey questions, and to determine the importance of the questions. One group of respondents, a group of "judges," assign various weights to different variables, while another group actually answers the questions on the survey. [10] 

Guttman scaling, developed by Louis Guttman, is the type of scaling used most today. Guttman scaling, like the Thurstone scale, recognizes that different questions provide different intensities of indication of preferences. It is based upon the assumption that the agreement with the strongest indicators also signifies agreement with weaker indicators. It uses a simple "agree" or "disagree" scale, without any variation in the intensities of preference. [11] Guttman scaling was developed in the 1940s and is a technique of mixing questions up in the sequence they are asked so that respondents don't see that several questions are related. Many irrelevant questions surround the important questions. The scoring system is based on how closely they follow a pattern of ever-increasing hardened attitude toward some topic in the important questions. Guttman scaling is very appealing, but it's not all that well received by the scientific community." [12] 

The mostly commonly scale Linkert Scale and Index criteria are used in measurement of dispute resolution, discussed in detail on next pages.

5.2.2 Likert Scale

"Likert (1932) developed the principle of measuring attitudes by asking people to respond to a series of statements about a topic, in terms of the extent to which they agree with them, and so tapping into the cognitive and affective components of attitudes. Likert-type or frequency scales use fixed choice response formats and are designed to measure attitudes or opinions (Bowling 1997, Burns & Grove 1997). These ordinal scales measure levels of agreement/disagreement." [13] 

"A Likert-type scale assumes that the strength/intensity of experience is linear, i.e. on a continuum from strongly agree to strongly disagree, and makes the assumption that attitudes can be measured. Respondents may be offered a choice of five to seven or even nine pre-coded responses with the neutral point being neither agree nor disagree. In it final form, the Likert Scale is a five (or seven) point scale which is used to allow the individual to express how much they agree or disagree with a particular statement." [14] 

"Likert Scales have the advantage that they do not expect a simple yes / no answer from the respondent, but rather allow for degrees of opinion, and even no opinion at all.  Therefore quantitative data is obtained, which means that the data can be analyzed with relative ease." [15] 

"The Likert scale is commonly used in survey research. It is often used to measure respondents' attitudes by asking the extent to which they agree or disagree with a particular question or statement. A typical scale might be "strongly agree, agree, not sure/undecided, disagree, strongly disagree." On the surface, survey data using the Likert scale may seem easy to analyze, but there are important issues for a data analyst to consider." [16] 

"The traditional way to report on a Likert scale is to sum the values of each selected option and create a score for each respondent. This score is then used to represent a particular trait (particularly when used for sociological or psychological research). This is also quite useful for evaluating a respondent’s opinion of important purchasing, product, or satisfaction features. The scores can be used to create a chart of the distribution of opinion across the population. For further analysis, you can cross tabulate the score mean with contributing factors." [17] 

We can use different approaches to analyse our research question before the selection of the procedure to adopt. As mentioned earlier, Linkert scales vary in the number of points and five point scale used in analysis is the most common.

5.2.2 Indexes

An index is a type of composite measure that summarizes and rank-orders several specific observations and represents some more general dimension. An index is an accumulation of scores from a variety of individual items. [18] 

Indexes are a sum of series of individual yes/no questions, that are then combined in a single numeric score. However, an index usually combines observations without concern about their interior relations: [19] 

An important question with regard to the index construction is the weighting of the compounding variables. Simple summation of all standardized variables in an index could reduce the internal validity of the index. Specifically, when the variables are not equally measuring the intended concept, the index will be distorted. Meaningful weights could be derived either from the existing data or with a study designed to reveal the preferences of users of justice towards the measured concepts." [20] 

5.2.3 Benchmark for Paths to Justices

To set a benchmark for measuring performance of legal systems in resolving disputes, a minimum scale is required which can compares legal procedures across different jurisdictions and legal cultures. The writer is setting a set of common measurement criteria for assessment of different procedures. "Because it is the user who evaluates the paths to justice, we claim that the metrics of different procedures could be compared. Therefore, the use of a standard approach provides a valid benchmark for paths to justice." [21] 

Access to justice is a complex phenomenon that can "vary across time, jurisdiction, social class or legal culture. One plausible strategy to measure such a rich and diverse domain is to use a set of standard indicators. Each individual indicator would measure separate parts of the general concept. In order to cast light on the whole, rather than on parts, the indicators should be combined into an index." [22] 

Two of indicators of access to justice (quality of procedure and quality of outcome) in addition of cost do not have normal units of measurement. "People do not normally think and say ‘I’m satisfied with my procedure at points" or "my satisfaction with the outcome is at a level". To make the concept measurable we use a 5 point Likert scale. There is a disagreement whether the individual liker items could be analyzed as continuous (interval level) data or as categorical (ordinal level)." [23] 

"We express the out-of-pocket costs in the respective currency or the spent time in hours, days, weeks etc. Indeed, some non-monetary costs such as stress and emotions need artificial scales. Should we then measure the categories with their meaningful scales instead with some other scales? There are two problems with using Likert scale or a more elaborated scale (i.e. logarithmic scale) to measure costs of justice. Different categories of costs could vary in large intervals." [24] 

The index of justice is computed by "through calculation of their means. At the next level, the means of the three indicators (costs, quality of the procedure and quality of the outcome) are brought together, and the mean score is the composite index of the path to justice." [25] 

By using these steps we measure, "only the perceptions of users who stepped on the particular path to justice. However, their experiences reveal the barriers that other people with similar problems have to overcome. Inevitably the pool of the existing problems is larger than the number of problems directed towards paths to justice. Those who have chosen not to address paths to supposedly take under consideration the subjective believe on the costs and quality of the available solutions." [26] A fundamental question at the data analysis stage is how to treat the multiple components that belong to one of the indicators." [27] If access to justice varies on some interval (let's say from non-existing to total access) than there should be some indicator to tell the actual level. A single index, if valid and reliable, could play the role of a compass on the map of access to justice. However, such an index assumes that the researchers have sufficient knowledge about the compatibility of its ingredients. For instance, if we aggregate costs and quality of outcome, do we suppose that with the increase of cost, also satisfaction with the outcome will increase?" [28] 

The theory of the "access to justice is measured from the perspective of potential users of justice. In most cases, users of justice are conceptualized as all natural persons who potentially could be parties in a dispute and experience the need to resolve it through some recognized process and mean." [29] All conclusions and inferences will be applicable to the measured path to justice. The definition of a path to justice is "a commonly applied process which users of justice address in order to cope with their justice needs" [30] "One way to compute the Access to Justice Index is to aggregate the values of all items, thus measuring a higher-order concept. The outcome means will reflect the score of the unobservable variables. At the next level, the same computation could be performed in order to discover the scores of the three basic indicators (costs, quality of the procedure, and quality of the outcome). In a third round of aggregation, the composite index of the accessibility of the measured path to justice could be estimated through the mean of the three main indicators. Such a routine uses the non-weighted original values of the items. It assumes that the data reliably measures the indicators allowing the studied sample to formulate reliable inferences." [31] 

As a result of the study, we could have three distinct indexes (costs of justice, quality of outcome and quality of procedure) or one general index encompassing all indicators. What would be the pros and cons of the two options? One all-inclusive index is more appealing in terms of its ability to directly address the general interest of the measurement effort – accessibility of justice. If access to justice varies on some interval (let’s say from non-existing to total access) than there should be some indicator to tell the actual level. A single index if valid and reliable could play the role of a compass on the map of access to justice. However, such an index assumes that the researchers have sufficient knowledge on the compatibility of its ingredients." [32] 

5.2.4 Hague Model - MA2J

"Measuring Access to Justice in a Globalizing World – the Hague Model of Measuring Access to Justice" is a research and development project. Its primary goal is to develop, validate and disseminate a standard methodology for measuring the costs and quality that normally users of justice may expect when they travel on Paths to Justice. The methodology aspires to be applicable in both international and national settings." [33] 

The Hague Model of Access to Justice' (referred to as MA2J), which is to develop and test a methodology for measuring costs of paths to justice,

asking "users about the costs, quality of the procedure and quality of the outcome, of a specific path to justice. Diagrams like the one shown below summarize what people think of a specific procedure they followed. Many different paths to justice can be measured with the MA2J – divorce, land disputes, inheritance, domestic violence, consumer disputes and so on.

MA2J looks at ten dimensions (see diagram) which cover the three main indicators, costs, quality of the procedure and quality of the outcome. Second, the measurement tool can be used to assess how different people perceive the same path to justice. Do women experience justice in a similar way as men? Are minorities receiving equal justice as everyone else? Third, MA2J allows you to follow a path to justice over a period of time. It can show, for instance the effects of a specific intervention. The impact of justice innovations on users’ perceptions can be easily visualized applying the MA2J before and after the innovation. Fourth, you can use MA2J to compare how users of justice assess alternative paths. You can compare your process with the process of another organization or institution. Last but not least, MA2J clearly shows the value of your efforts as a provider of paths to justice. It can demonstrate your credibility to clients, partners and donors." [34] 

Fig. 5.1

"The spider web (see below) suggests that the users of the two processes assess them in similar terms. The quality of the process and the quality of the outcome is experienced in strikingly similar terms. There is a slight difference in time and out-of-pocket categories. As expected, the Abunzi committees score better because of their local character and informality." [35] 

The procedure to measure the MA2J methodology is simple and easy to apply:

Define the path to justice which you want to measure;

Identify when the users receive the final outcome;

Ask them about their experience.

The question is what to ask? The three questionnaires as a reference are mentioned at Appendices 3, 4 and 5 which support to access the results.

"Normally, the interests of the supplier of paths to justice pre-determine the question which path to justice is to be measured. For example, Victim-support organization will be inclined to measure how the victims assess their path to justice. An insurance company will be more interested in the experiences of its policy holders with the way in which tort claims are settled or litigated. An international donor might want to know how the users assess a legal procedure which is considered as inefficient or which had been already reformed." [36] 

"MA2J, the TISCO methodology for measuring the costs and quality of access to justice was used to assess the experiences of the users of two paths to justice in Rwanda. The study is part of the Innovating Rule of Law Project. Half of the interviewed respondents used first instance trial courts to solve their civil justice problems. Most of the problems concerned land disputes. The other half of the sample consists of people who sought resolution in unique Rwandan dispute resolution fora – the Abunzi committees. Abunzi can be understood as local wise men/women panels for mediation or conciliation. There are more than 12 000 Abunzi committees across Rwanda. Their role is to solve the emerging civil disputes with the resources of the local communities. Each commission consists of 12 members whereas in each particular dispute 3 of these members are called to mediate. There is a wide variation in the methods used by the different Abunzi committees to bring about a fair solution but most often, what is being used, can be referred as "soft arbitration." [37] 

Indicators and dimension set by MA2J, the TISCO methodology help the dispute resolvers to follow the principals set for resolution. "For each of the three constructs (indicators), a literature review has been undertaken in order to identify the elements of costs, [38] Â procedural quality [39] and outcome quality. [40] Â 

The three indicators in terms of measuring instruments mentioned in a table form are:

Table 5.1: Summary of the indicators/principles, their dimensions, and the criteria that may become part of the measuring instrument [41] 

Costs

Quality of Procedure

Quality of Outcome

Out of pocket expenses

(legal costs, fees, travel

costs, etc.)

Procedural justice (voice,

neutrality, trustworthiness,

consistency, accuracy)

Distributive justice

(proportionality to need,

contribution, effort;

equality; efficiency)

Time spent (time for

travel, waiting, collecting

evidence, instructing

lawyers)

Interpersonal justice

(respect, politeness)

Restorative justice

(acknowledgement of harm

done, acceptance of

responsibility),

Costs of delay (duration)

Informational justice

(explanations of process

and outcomes)

Corrective justice

(reparation of harm)

Stress and emotional

costs

Retributive justice

(proportionality to harm

inflicted)

Transformative justice

(fitting interests,

strengthening

relationships)

Formal justice (equal

treatment to others,

transparency of criteria,

comparability)

Cost and quality of paths to justice are further detailed as following:

Table 5.2: Indicators of the Costs and Quality of Paths to Justice and Costs of the Procedure [42] 

Indicator

Description

Examples

Out-of-pocket

expenses

The monetary amount spent

on transactions during and as

a result of the proceedings

Lawyer fees, expert fees, filing fees, transportation fees, bailiff and witness fees, notary fees, costs for communication.

Time

Time spent dealing with the

procedure

Searching for a legal advisor,

collecting information, contacting professionals, travelling, awaiting/attending hearings, waiting in queues

Other lost

opportunities

The cost of lost opportunities

due to the proceedings and

their possible lengthiness

Lost income, devaluated resources, losing a job opportunity

Intangible

costs

On their paths to justice,

people tend to expend

emotions, suffer stress, become depressed or

experience deterioration in

their relationships with

significant others

Stress, negative emotions such as frustration, fear, disappointment or

anger, loss of relationships

"Each indicator is built by a complex structure of sub-indicators. For instance, the costs of the procedure are defined as the resources, which the user would need to travel from the beginning to the end of a path to justice. Within this indicator, a set of sub-indicators reflect different types of procedural costs: out-of-pocket expenses, time, and other opportunity and intangible costs (stress, emotions, etc.). Similarly, the two quality indicators consist of lower level sub-indicators that measure its specific facets." [43] 

In everyday life, some paths to justice are assessed as better than others where as "we define the ‘beginning of a path’ to justice as the moment when the user takes active steps to address the process. Searching for information, seeking advice from lawyer, filling in forms are examples for actions intended to solve the problem. The ‘end of a path to justice’ is the moment when the user receives an outcome regardless of the content or favorability of the outcome." [44] 

This research "methodological framework expects that the user has made assessments of his experiences with the cost of justice, the quality of the procedure, and the quality of the outcome. In other words, measurement model uses three indicators of access to justice - costs of justice, quality of the procedure and satisfaction with the outcome. After completing a path to justice, people think about the costs incurred, the procedure and the outcome. In its essence, the methodology asks the users of justice to reflect on their experiences and formulate a quantitative account of the particular path to justice." [45] 

Here the researcher define user as a party, may be called with various titles, depending on the type of dispute resolution procedure he adopts, including plaintiff, claimant, petitioner, applicant, pursuer, victim, etc." [46] 

In line with Hazel Genn’s (1999) famous metaphor, "the process of access to justice can be seen as a path that is travelled by a person who experiences a problem in his relation to some other individual. For example, a shop keeper has a problem with a shoplifter. In order to solve the problem the shopkeeper can bargain with the thief, he can call the police, do nothing etc. ‘These different ways to a solution can be seen as different ‘paths to justice." [47] 

Figure 5.2 outlines the components of Access to Justice Index for outlining the sub-indicators of access to justice in more detail.

Figure 5.2

Figure 5.3 on the next page shows the concept of paths to justice graphically: a client with rights (a claimant), enters the system (starting point) to follow a procedural mechanism in order to obtain an (fair) outcome (end point).

Figure 5.3

"Measuring a path to justice through the perceptions and attitudes of actual users, could affect the accessibility of other people with a need for justice. This analysis based on the understanding that the users’ perspective is a valid ground for measuring the above indicators because:

"Only the users of justice could express their perceptions on the costs and qualities of the particular path to justice;

The perceptions and attitudes could be compared across different

procedures;

Research shows that people normally fail to correctly forecast categories such as emotion, stress, and satisfaction in the context of legal procedures, and; therefore, the actual experiences are a valuable informational asset." [48] 

Figure 5.4 on the next page, "visualizes the proposed model for measuring the costs and quality of access to justice. At the beginning is the pyramid of legal problems and needs for justice in the everyday life. Not every problem, however, is perceived as legal, and not every problem which has been seen as legal is acted upon within the formal justice system Research on justifiable events consistently shows that only a tiny portion of the problems that are considered legal and non-trivial, are solved with a mechanism belonging to the formal legal system." [49] 

"In fact, paths to justice are the primary units of analysis in our research design. After experiencing a legal problem, the users could select different strategies and taking on a path to justice is one of the possibilities. From a neutral point of view, the person with a legal problem will normally want to solve her problem although the real life is much more complex." [50] 

The diagram "visualizes the proposed model for measuring the costs and quality of access to justice. At the beginning is the pyramid of legal problems and needs for justice in the everyday life. Not every problem, however, is perceived as legal, and not every problem which has been seen as legal is acted upon within the formal justice system is helpful in measuring the barriers in access to justice" diagram describes a relationship of paths to justice, measurement and barriers we can identify in access to justice, discussed in next pages.

Figure 5.4: Model of access to justice (source: Martin Gramatikov et al. HJRL 3 (2011) http://arno.uvt.nl/show.cgi?fid=122117 page 354

5.3 Measurement of ‘Access to Justice’ in the context of Cost, Quality and Outcome

"A path to justice could be adjudication or arbitration but also a negotiation since it takes place because the parties use it to cope with a legal problem. They may or may not expect that the legal system acknowledges and enforces their individual rights and obligations." [51] The researcher has used the MA2J, the TISCO methodology to evaluate his study in user’s perspective discussing the three main indicators of paths to access justice in the context with non-ADR systems in developing countries.

5.3.1 Cost of Justice

The costs of justice are defined as the sum of the monetary expenses, opportunity costs (time and foregone earnings) and emotional costs. We observe in developing countries, "the cost of conflict and disputes has become a particularly important consideration in many countries and has influenced the approach taken to dispute resolution. Costs are not only measured in terms of the price paid for dispute resolution services but also the time to deal with conflict and disputes, the impact of conflict and disputes on, amongst other things, production, quality and customer relations. The longer it takes to resolve a dispute, generally the more it costs the parties and the economy." [52] However "in our methodology, we include other out-of-pocket expenses, such as money spent for travel, experts, witnesses, search and collection of information, translation and communication." [53] 

The Graph of relationship between cost and time, taking an example of costing of a divorce case, supports the logic that cost increases with the passage of time.

Figure 5.5: Cost and Time Relationship

Source: CEDR

This relationship can be evaluated where "petitioner and the respondent have to consider costs such as legal fees, court fees, travel costs, personal time, missed opportunities because of the pending trial and so forth. However, the resolution of the case normally has more costs – the judge and the court secretary receive a salary, the court building has acquisition and maintenance price, a system of appeal courts safeguards the right to seek review etc. These are all examples of public costs of justice. The difference is, who pays the costs, the private costs are born by a particular user of justice and the public costs covered by the tax payer." [54] 

"Different elements of costs could be effective barriers to access to justice in some locations. Lawyers' fees, other out-of pocket expenses, lost opportunity costs and emotional costs could potentially dissuade a person from taking action to resolve the problem with legal mechanisms. Furthermore, even if a person decides to pursue these legal means, the piling costs associated with utilizing access to justice could effectively decrease the expected gain the user expects to acquire from their justice seeking behaviour. Tangible and intangible costs of justice, however, are not the only categories that could hamper the justice process. Although theoretically all barriers could be seen as costs, our approach to access to justice distinguishes the quality of the procedure and quality of outcome as important properties of the processes that are perceived or designed

to deliver justice." [55] 

"The study revealed that mostly costs are borne both by the claimant and the defendant. An interview with these persons can explore the statistics regarding the legal services and other costs. An example may be, Costs for use of information, Lawyers /paralegals; fees; Experts’ and expert witnesses’ fees; Filing (court / arbitration/ mediation) fees; Translator’s fees; Bailiffs’ fees; Notary’s fees; Services for summons; Travel expenses; Costs for communication (mailing, calling, etc.); Witnesses’ compensation; Copying and other overheads; Bribes and other unofficial payments." [56] 

Description of following sub-indicators of "Cost and Time" will help us to evaluate, what is a user’s perspective view when he deals any non-ADR matter.

Table 5.3: Analysis of cost and time in non-ADR systems

Indicator

Description

Non-ADR systems

Cost

Relate with cost of the procedures and overheads

Costs [57] are higher

Case filing fees req.

Lawyers fees, must

Enforcement agency fees req.

Personal expenditure, additional

Time [58] 

Relate with the time and speed [59] of the process

Lengthy Procedures -Court trials takes a lot of time even years

Procedures need to be followed

Tables 5.4, describes one type of categorization of costs borne by the claimant or defendant which distinguishes out-of-pocket expenses, the costs of time spent, costs of delay and emotional costs for analysis.

Table 5.4: The Types of Costs of a Path to Justice for the Claimant

Type of costs

Most important

categories

Remarks about factors determining costs and measurement

Out-of-pocket

expenses

Fees for authorities (filing fees, document fees)

Depend on:

- the (range of) issue(s) involved

- the value in dispute

- the amount of information needed for a decision on each issue

- the difficulty of reproducing this information

- the structure of the proceedings.

Relatively easy to calculate from official sources, bills, etc.

Fees for legal assistance, lawyers’ fees

Court fees

Fees for experts, witnesses, translation, bailiffs, court reporters, etc.

Travelling expenses

Time spent by the claimant and other persons addressed by him

Costs of searching for an (legal) adviser

Depend on:

Estimates on the amount of time spent can be obtained

through survey research and then be valued at

opportunity costs:

- labor costs

- value of leisure time for non-professionals.

Interaction with the other party

Consultation (family, friends, etc.), seeking legal advice, deciding on strategy

Interaction with authorities

Instructing lawyers

Collecting evidence

Attending hearings

Amount of time spent travelling

Costs of delay

Devaluation of assets in dispute

Depend on:

- the issue involved

- the value in dispute

- the duration of the dispute and its proceedings.

Loss of opportunities because of uncertainty regarding future of relationships

Emotional costs

Stress, fear, sadness, loss/ change of relations etc.

Depend on:

- the issue involved

- the value in dispute

- the duration of the dispute and its proceedings.

Comparing theoretically, the dimensions of the indicators based on the empirical research found in small parts, we can set a table of non ADR and ADR indicators, sub-indicators for analysis to justify the use of ADR methods than non ADR.

Table 5.5: Comparison of Cost factor Non ADR V ADR methods considering Cost and Time factors

Cost and Time

Non ADR Methods

ADR Methods

Monetary Cost

Costs for use of information (i.e. legal databases, public providers) Lawyers’/paralegals; fees;

Experts’ and expert witnesses’ fees;

Filing (court/ arbitration /mediation) fees;

Translator’s fees;

Bailiffs’ fees;

Notary’s fees;

Services for summons;

Discovery related costs;

Travel expenses;

Costs for communication (mailing, calling, etc.);

Witnesses’ compensation;

Copying and other overheads;

Bribes and other unofficial payment

Applicable

Sometimes applicable

Applicable

Rarely

Sometimes

Payable

Payable

Payable

Payable

Often payable

Payable

Hidden expenses, payable

Not Applicable

Sometimes

applicable

Not payable

No

No

Not Payable

Not Payable

Not Payable

Not payable

May be

Not Payable

No corruption

Opportunity Cost

Services for summons;

Discovery related costs;

Travel expenses;

Costs for communication (mailing, calling, etc.);

Witnesses’ compensation;

Copying and other overheads;

Bribes and other unofficial payments

Payable

Payable

Payable

Payable

Payable

Payable

Not Payable

Not Payable

Not Payable

Not Payable

Not Payable

Not Payable

Intangible Costs

Stress

Emotions, and damage to the relationship

Can be claimed

Can be claimed

Cannot be claimed

Cannot be claimed

We see, one system is costing the user with time consuming factors, while on the other hand, another system offering the voluntarily dispute resolution, then we can justify that ADR systems are more advantageous than Non ADR systems where a number of barberries are on the way.

The reasons may be the "Illiteracy, lack of financial resources, and social backwardness are major factors that hinder the common person from accessing justice." [60] As earlier discussed, there is a relationship between cost and time where the cost of access to justice relates with the passage of time. The cost factor described in above table correlate with income of a user. Income per capita and purchasing power of the user encourage him to use non-ADR methods of dispute resolution. If the user is jobless, has no money to pay legal fees and spend, he will certainly think about ADR methods for dispute resolution.

These costs relates in different forms and shapes. The following case studies reveal the samples of cost borne by users in access to justice.

Case Study 1

Transportation presents a formidable obstacle to accessing the formal courts systems, particularly for residents in remote areas (Alterman et al 2002). In developing countries, where people live for away from cities and have no transport to attend the courts or have limited transport, usually are obstructed from accessing the justice. To reach in time in court is another big issue which a user face has no proper transport. Similarly in big cities, where transport issues exist, people have no personal sources to attend the courts in time.

"In Sierra Leone, the limited numbers of functioning magistrates courts are based in district headquarter towns, which are far away (both physically and mentally) from residents of many remote - and even not-so-remote - villages. With minimal access to adequate roads or vehicles, many inhabitants of rural communities find it physically and financially impossible to access the formal courts, especially for cases that can take several visits to provincial capitals to resolve. Though local (customary) courts are more numerous than magistrate courts and are dispersed through every chiefdom, transportation and distance can still be a barrier to access for those living in more remote communities far from the local courts (as few as one or as many as five) present in their chiefdom. Adding to the burden of transportation is the fact that the parties to a case are often expected to pay for the transport of other participants – such as witnesses or chiefdom police delivering summonses – as well as their own." [61] 

Research reveals another reason of use of ADR methods, the poverty level which affects people’s life and living. The per capita income, a useful economic indicator to enable comparisons between different countries or areas which demonstrate, how far it has to go to catch up and identify the index is used also as a measure of wealth (poverty) or standard of living. To evaluate this scale in developing countries, the table of income per capita as given in appendix 6 helps us to determine a common poverty line in terms of minimum level of consumption that is necessary for continued survival. "The major features of global poverty as revealed in the estimates based on purchasing power ratios correspond broadly to other estimates." [62] 

"Almost 40 percent of the population of the developing countries lives in absolute poverty defined in terms of income levels that are insufficient to provide adequate nutrition by South Asian standards. The bulk of the poor are in the poorest countries: in South Asia, Indonesia, and sub-Saharan Africa. These countries account for two-thirds of the total population and well over three-fourths of the population in poverty. The incidence of poverty is 60 percent or more in countries having the lowest levels of real GNP." [63] 

The indicator discussed as above is to measure the people’s income per capita. When people have a extremely low income, living hand to mouth, no purchasing power, jobless and looking towards aid from developed countries, how it can be assessed that they will prefer non-ADR systems in case of any dispute.

5.3.2 Quality of the Procedure

"With respect to the quality of procedures, several different theoretical frameworks can be used, such as philosophical and economic perspectives on procedural goods' and elements of procedural values embedded within legal procedure rules. However, in the field of social psychology there has been an extensive amount of research analyzing how people experience procedures. "The scope of this research is broad and has covered most, if not all, elements of ‘procedural goods' suggested by other theoretical approaches. [64] Measuring cost and quality of access to justice relies on the belief that these indicators are not constants? Rather, they vary by jurisdiction, procedure, type of legal problem, and user." [65] 

The majority of these studies suggest that people care deeply about the procedure in the courts used to obtain an outcome, maybe even more than about the outcome itself. The MA2J methodology defines people’s perceptions in terms of justice for evaluation of the quality of procedures based on four different theories of justice, described in table 5.6:

Table 5.6: Quality of the Procedures

Indicator

Description

Sub-indicators

Procedural

Justice

Fairness perceptions of users

regarding the processes that

are utilized to resolve

disputes and allocate

resources

Process control, decision control, consistency, bias suppression, accuracy, ability to correct, ethicality

Restorative

Justice

Concerned with the harm

that has been caused by the

legal problem and attempts

to offer reparation to the user of justice

Opportunity to ask the other party for an explanation and recognition

Interpersonal

Justice

The extent to which people

are treated with politeness,

respect, and propriety

Politeness, respect, propriety,

respect for rights

Informational

Justice

The validity of information

provided by decision makers

as the foundation of the

decision making process

Honesty, explanation of rights and options, as well as whether the explanation was timely, understandable, and in need of clarification

It is clear from the above tables that the MA2J Methodology constructs the process of access to justice from various angles. Following sub-indicators which a user can perceive while analyzing the procedures, play a vital role in understanding the dispute resolver behaviour and in assessment of the outcome of the dispute.

Table 5.7: Overview of justice indicators and their relevance in

Procedures [66] 

Justice indicators

Procedures with a

neutral person (NP)

Procedures without a

neutral person

Procedural justice

Voice

X

X

Bias suppression

X

Accuracy

X

X

Interpersonal justice

Respect

From NP

From other party

Honesty

From NP

From other party

Trustworthiness

From NP

From other party

Informational justice

Information about process

X

X

Information about rights options

X

X

"Adjusting to different domains is a problem each measuring method has to solve. It requires that measuring methods have sufficient flexibility. They need multiple evaluation criteria, some of which will not be very useful for a certain domain. Restorative justice, one of the items of the MA2J method, is not very likely to be at stake in administrative proceedings. Distributive justice in terms of equity is less relevant in the area of violent crime. It is possible to select applicable criteria for each domain, to leave to the respondents to what extent they think such a criterion is appropriate, or to measure against each criterion (leaving it to the reader of the report whether the information is relevant)." [67] 

In non-ADR systems, quality of dispute resolution procedure is a skeleton on which the proceedings of the case do base, incorporating number of activities and steps of the court. The user’s experience and observations about the procedures help him to understand and evaluate those procedures. Following sub-indicators help the user of justice to understand the quality of procedures in both systems.

Table 5.8: Quality of procedures of non ADR systems

Indicators

Description

Non-ADR Systems

Flexibility

Parties are free to choose the method of dispute resolution system

Court processes are generally less flexible

Accessibility

Assessment and approach to system

No easy assessment

complicated rules of evidence

adversarial process

more intimidating

more stressful

Management

Case Managements and ICT

back log of cases

Only rule has to follow

Win-to-win case, 50 %

Parties presence / absence make no effect

Privacy and confidentiality

Resolution of disputes in confidentiality

Hearings and decisions of courts and tribunals (including the reasons for the decision) are usually public.

Trials are open and do not offer privacy

Self-directed

How people follow the procedure

Judge appointment by court

Court judge / tribunal outcome is honored

Court process, you can only raise issues that are connected with your legal rights.

Court process difficult without a lawyer

Focus

What is focused while resolving disputes

Courts and tribunals focus on legal rights

Courts prefer the laws and rulings

Expertise

Expertise of dispute resolvers

Skill shortage prolong the case

calling of expert evidence can cost a lot of money

Juries are unpredictable and often damage awards

Customer Satisfaction

Public level of satisfaction in using the system

Discussed in detail in previous chapters

Political Interference

Any interference by the politicians

Discussed in detail in previous chapters

Corruption

Affects and bribery in the system

Discussed in detail in previous chapters

Awareness about the system in public

Awareness about the system in public

People know about litigation but not in detail how the system works

Abstracts collected by the author from different sources

One World Bank study estimated "the average length of civil suits in which judgments were reached was 572 days." [68] This study made no distinction among the different kinds of civil actions, so this average does not apply just to the length of enforcement proceedings, but rather to the entire length of the case, including enforcement.

The same study found that "proceedings handled by Justices of the Peace in which monetary awards are sought typically take anywhere from three months (50.74%) to six months (34.02%), while those exceeding one year are much fewer (0.29%). However, these time-spans do not take into account cases that have been appealed, nor the time required for enforcing judgments". [69] 

5.3.2.1 Case Management, delay and backlog of cases

The delay and backlog of cases was identified an obstruction in non-ADR systems in previous chapter. How this obstruction affects the ‘quality of the procedure’ indicator, we will discuss here.

"The problems of delay in disposal and resultant backlog of cases at all tiers of the judiciary, and the prohibitive costs of litigation for the parties, which have been identified as major road-blocks to access to justice, rule of law and smooth socio-economic life continue to plague our society and polity. In fact, delay in the litigation process in our judiciary has reached such a point as to pose a formidable threat to protection and promotion of human rights." [70] 

Following reasons of delay and backlog have been identified in the litigation process:" [71] 

lengthy process of litigation;

procedural laws which contain elements and scope for delay have become by misuse ;

Party-controlled litigation process with predominating procedural rights of the parties;

Slow process of service of the frequent adjournments of the trial caused by the insistence of the parties;

reluctance of the judges to restrict the adjournments, such reluctance partially being explained by their heavy case-load;

Lack of strict adherence to time-frames or time-limits prescribed by laws." [72] 

"Frequent resort to interim injunctive relief, and commonly made interlocutory orders and appeals which fracture the case into many parts and effectively stay the trial, leaving the hearing of the main contentions and issues to uncertain time-frame;

Scope for frequent amendments of the plaints and written statements at any stage of the trial;

Absence of lawyer-client accountability giving the lawyer monopoly to conduct the case" [73] the way she/he considers best suited to her/his own interest, even to linger and delay the process; "

"Little scope for client-to-client interaction which hinders potentiality for alternative dispute resolution and intensifies the confrontational nature of the proceedings; " [74] 

Failure of the parties to present the witnesses sometimes genuine, and sometimes deliberate;

Rotation and transfer of the "judges, often meaning that the same judge who heard testimony may not decide the dispute, taking away thereby much of his incentive to push forward the proceedings to judgement and seriously impeding the process of continuous trial; the new judge may have to repeat some of the procedural requirements already fulfilled;

Absence of a separate and permanent professional body of investigation;

Inadequate facilities and expertise at district levels to submit forensic evidence;

Absence of sufficient legal provisions for victims and witnesses' protection, which seriously impede smooth process of litigation." [75] 

"It is believed a comparative study and research on the characteristics, merits and demerits of the two systems can help shed light on the peculiarities of our problems, and persuade us to take from the civil law tradition as it is well-known for its procedural simplicity, tidiness, expeditiousness and discipline." [76] 

The study explores that backlog is of two types, one party base and the other court base. In party base, sometimes, one party use different tact to delay the case, for example, not to produce the witness in time or absence of the representative in the court. While court base delays include the judges’ behaviour in dealing with the case or bias towards one the party. This bias may be in any form. The court staff behaviour and management of filing and record also causes the delay.

"The following indicators are used by the Minister of Justice to assess the importance given by society to the work of judges, and the good or flawed use by the judicial system of the resources allocated to it:" [77] 

Judiciary system expenditures as a percentage of GDP;

Judiciary system expenditures as a percentage of tax revenues;

Number of judges per capita;

Number of cases concluded per capita."

Some more commonly used quality indicators are:

number of appeals as a percentage of concluded cases;

number of judges as a percentage of total employees;

average personnel costs per employee;

average duration of concluded cases.

"Indicators measuring completion are aimed to measure improvement toward achieving earlier and more proportionate resolution of legal problems and disputes by increasing advice and assistance to help people resolve their disputes earlier and more effectively and increasing the opportunities for people involved in court cases to settle their disputes out of court, as well as reducing delays in resolving those disputes that need to be decided by the courts." [78] 

The following case studies are the examples of the measurement of the indicators mentioned for the quality of the procedures.