Part 2 – Institutional Capacity
Category 1 – User-centred design
Q.69-71 At the core of the access to justice problem is the fact that, historically, justice systems have largely been designed to operate for the convenience of those who work within them (adjudicators, staff and lawyers who appear regularly before administrative bodies). User-centred design offers an opportunity to break with tradition and to improve access to justice.
User-centred design is a technique to be learned and refined over time, largely through trial and error. For this reason, it requires the development of institutional capacity over the medium- and long-term. These questions aim at examining the development of institutional capacity.
Here is a definition of that approach:
[User-centred design] involves immersing yourself in the problem you are trying to solve, working with the people experiencing the problem, experimenting with solutions, and most importantly, lowering your defenses and opening yourself and your design team up to candid and uncensored feedback about what you are doing wrong (and hopefully some things you are doing right. (Nicole Aylwin, Human Centred Design and the Justice System, 6 June, 2016)
Q.69 The starting point is understanding user needs. A systematic and sustained user needs analysis is preferable to sporadic reactions to user demands as they arise.
Q.70 The next logical step is integrating user needs into process and policy changes. Ideally, some form of user testing occurs before changes are finalised. This is an area where it makes sense to initiate and evaluate pilot projects, and to include user feedback as part of the pilot.
Q.71 Finally, training some adjudicators and staff in user-centred design ensures that the administrative body maintains institutional capacity. Many important access to justice changes may arise out of the hearing process. For this reason, it is important not to limit training in user-centred design to staff.
Category 2 – Data-driven improvement and monitoring results
Historically, our justice systems have not made much use of data to guide decision-making. By its nature, law is values- and rules-based. That leads us to favour values and rules when we diagnose and address problems, rather than looking at what the data tells us. In addition, the common law teaches us to focus on individual cases, and to deal with issues incrementally, rather than looking for systemic solutions. This tradition has created a solid bedrock of principles, which is great for adjudicating individual cases. But it actually inhibits innovation when it comes to justice system design and innovation.
Systematic collection of data is necessary to advance any user-centred system improvement. What does the data tell us? Does it validate or contradict our assumptions?
The most robust data consists of measurable objective indicators. Many administrative bodies may deal with large enough case volumes to be able to create robust datasets.
But for some issues, the best information is not found in a string of numbers. It consists of an accumulation of the subjective and anecdotal reactions of users. For example, these can take the form of free flow comments in response to questions on an exit or satisfaction survey. Or a survey at another point in the process before a decision is rendered so that the decision itself does not impact the users’ views. Where that is the case, it is necessary to look for recurring patterns in the anecdotal reactions, so that the reaction of a small minority of users is not mistaken for a systemic issue that needs to be fixed.
Q.72 A data strategy involves deciding what numbers require attention. That in turn depend on what access to justice problem(s) the administrative body is trying to solve. The data may not be limited to the information in the body’s case management system. It could also include survey data that the body collects, as well as relevant data from publicly available sources, such as Statistics Canada.
Q.73 Understanding the demographic profile of the people who use the administrative body’s services is key to understanding where particular access to justice problems lie. For example, if the body has a good sense of the digital literacy levels of its users, then it can make more informed decisions about how to manage virtual proceedings.
Q.74 The rate at which parties start but then withdraw from proceedings may be a powerful indicator of whether the administrative body’s process is too difficult for users to navigate. If a high withdrawal rate is due to parties settling their disputes on their own, then that is a good thing. But if it is because the body’s process is overwhelming, then clearly there is an access to justice issue. Tracking withdrawal rates over time may be a useful indicator of whether a body’s access to justice innovations are having an effect.
Q.75 The same reasoning with respect to Q.72 applies here. If the administrative body is tracking trends in accommodation requests over time, this may be a useful indicator of whether a body’s accommodation practices are effective.
Q.76 Determining which indicators can demonstrate progress in access to justice may vary over time. They can change as an administrative body’s access priorities change. However, a systematic approach to measuring progress is key to embedding an institutional access to justice culture.
Q.77 Publishing the results of access to justice improvement efforts – whether they are wholly successful or not – shows that the administrative body is both committed to improvement and is publicly accountable.
Q.78 Finally, training some staff in data analysis ensures that the administrative body maintains institutional capacity.
Category 3 – Engagement in the justice service continuum and future thinking
Administrative bodies are focused on dispute resolution. However, legal problems do not always manifest themselves as formal disputes. And people who enter justice systems do not come looking for a mediation or a hearing. They come looking for a solution to their legal problem.
There are many ways to find that solution. Some involve private resolution or dispute avoidance. There are also a range of actors that may affect a solution. These include government bureaucracies, community organizations, as well as lawyers and paralegals.
While the principal (and often sole) statutory task of administrative bodies is to resolve formal disputes, many administrative bodies can choose to act in a broader sphere. The body may decide to focus solely on improving what falls within the four corners of its statutory mandate. Or it can take a different route. It can see itself as part of a continuum of justice services and play a role both in dispute avoidance and in helping to improve the justice services that other actors in the field provide.
Q.79 Many administrative bodies adjudicate disputes that arise directly from government decisions. An administrative body that does this may keep its distance from the government department so as to protect its impartiality. Still, the government department and the body are both actors in the same justice continuum. One decides, the other hears appeals.
The administrative body may have useful observations to pass on to the government department, so that access to justice upstream at the government department is improved.
This type of engagement can happen without compromising the impartiality of the administrative body, but it depends on the body being transparent about its engagement, so that stakeholders do not think the body is making secret deals.
Q.80 A similar approach to Q.77 may apply where the administrative body engages with non-governmental actors in the justice continuum. This can include engagement with community organizations whose clients may eventually appear before the body.
Q.81 If the administrative body is transparent and reports on how it works with other actors in the justice continuum, this can pre-empt concerns that the body is sacrificing its impartiality and institutional independence. Reporting does not have to include the substance of discussions. It can simply be limited to explaining how the body engages with other actors, who is involved and the limits of what can be discussed. For example, this would include a firm assurance that the substance of individual cases or case types is never discussed, and that discussions are limited to questions of process.
For an example of an explanation of the relationship between the administrative body and government, see the Social Security Tribunal of Canada’s How we work within government.
Q.82, 83 The administrative justice landscape is constantly evolving. The pace of technological change means that administrative bodies need to develop an institutional capacity to anticipate and prepare for what the future brings. For example, all administrative bodies will have to start to address the many potential uses (and abuses) of artificial intelligence.
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