Imagination needed to provide justice in new ways

So it was heartening that senior officials and others with an interest in Scotland’s justice system had the opportunity recently to meet informally with two experienced officials from the Ohio justice system.

The emphasis, perhaps unsurprisingly, was on alternatives to traditional court structures – and on how to help people to resolve problems wherever possible without using the court system or, if and when they do so, to ensure that their involvement is truly productive, securing the best use of limited public funds.

Developments of justice

Some interesting examples of developments in Ohio include: the concept of a multi-door courthouse and dispute resolution centres (where users are directed to the most appropriate option for addressing their case); the provision of services specifically tailored to local needs; problem-solving courts; the use of early neutral evaluation to help parties face realities; the referral of government disputes to a specific conflict resolution service; training of the judiciary in effective dispute resolution techniques, and mediation of criminal cases through engagement with the offender (except in serious felonies).

The emphasis is preventative rather than reactive. The concept of preventative spend, with which we have become familiar in Scotland, resonated. There is acceptance that you have to invest in order to achieve long-term gain. It was also clear that in Ohio, business principles underpin spending and restructuring in the justice system. A central task has been to identify what is most time-consuming within the system and how that need can be more effectively addressed.

Much of the conversation dwelt on the use of mediation as a preferable option for resolving many social and business problems. Approximately 220 courts in Ohio use mediation services as a case management tool. As elsewhere, the term “alternative dispute resolution” was discouraged. Litigation, mediation, arbitration, early neutral evaluation, and indeed problem-solving, are all forms of “dispute resolution”, representing multiple options in a continuum. The key is to define the real nature of the presenting problem and then allocate it to the appropriate process. EDR, early dispute resolution, in its chosen form, is most likely to bring benefits to society and the justice system.

Mediations and comprehensive agreements

It was recognised in Ohio that education has played a large part in increasing the use of mediation. It has helped overcome initial resistance to the process, encouraging those involved to recognise its value in reducing the scope and longevity of disputes.

As it happens, most mediations result in comprehensive agreements reached by the parties which are, by virtue of their consensual nature, more likely to be implemented than a court order (a finding supported in Scotland by research a few years ago into the mediation pilot projects in two sheriff courts). And, of course, recourse to mediation does not preclude the role of the court where necessary.

It is generally accepted that mediation usually needs to be conducted by someone outside the immediate judicial structures but that, if judges are expected to use mediation-type skills to help parties to reach early and sensible outcomes, they need the training, time and physical environment to do it well. Food for thought regarding small claims and summary causes in Scotland?

There was fascinating discussion in the criminal context of studies to determine re-offending risk, the identification of crimeogenic factors, collaborative inquisitorialism and the potential of re-entry courts. The use in Scotland of drugs and domestic abuse courts and the referral of young people to the children’s panel featured prominently in the exchange.

Small changes can make a big difference

One of the central themes to emerge was the significant gains which can be made even with small, apparently marginal, changes. Little things can make a big difference if resources are well-targeted and there is strategic clarity and purpose.

Another was the appreciation that the volume of activity in disputes and the allocation of funding to the justice system may seem to be inverted, with significant resources being devoted to the “top” end of the system, where there is a relatively low volume of business, and proportionately much less being devoted at the “lower” end where so much might be done to nip conflict, disputes or unsocial behaviour in the bud.

It is encouraging to think that, with the courts’ review and the Making Justice Work programme, Scotland is looking to address these issues imaginatively. As Einstein observed: “The significant problems we have cannot be solved at the same level of thinking with which we created them.”

• John Sturrock is chief executive of Core Solutions Group, www.core-solutions.com

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