Designing Administrative Justice

With so much roiling around us, I am reluctant to confess that the design of administrative tribunals has been top of mind this month, but there it is. I have been revising a paper on the topic, forthcoming in the Windsor Yearbook of Access to Justice. I presented on the topic as part of CLEBC’s Annual Administrative Law Conference a couple of weeks ago, and recently have participated in training and education retreats for two different tribunal reform initiatives. Why are so many people in the administrative justice community turning to design to cure what ails administrative law decision-making? Below, I explore the possibilities and limits of design thinking to reinvent administrative tribunals, discretionary decision-making schemes, and even public inquiries. The discussion below builds on earlier forays in posts from last year exploring the intersection between law and design on “Justice By Design”  and “Legal Education by Design”

Design thinking – or human centred design – approaches services and products from the perspective of the user. This approach has made its way through the design of products, and more recently, services, including an emerging focus on the design of legal services (led by Margaret Hagan’s Open Law Lab at Stanford). This creative and purposive perspective too often has been missing in the design of administrative tribunals, most of which have been developed top-down to serve the needs of a particular policy interest of the Government of the day. The administrative justice system in Canada at all levels of Government (federal, provincial, municipal, Indigenous) is generally fragmented, poorly coordinated, under-resourced in relation to the needs of its users and with multiple barriers of entry.

It has become trite to observe that courts historically have been designed by and for lawyers rather than clients. The rules of evidence, court forms, and jurisprudence all flow from the technical expertise lawyers acquire, use and replicate. The effect is to render users who either represent themselves or seek an active role in the process ineffective and alienated.

Tribunals were supposed to be different. Every tribunal that has been established reflects a core premise that an alternative to courts on the one hand and government on the other is both necessary and beneficial. Often, tribunals are established in order to deploy a specific expertise beyond legal expertise – for example, the Competition Tribunal seeks to harness economic expertise while the Human Rights Tribunal seeks to harness anti-discrimination expertise. Most of these tribunals were also created to provide more flexibility and greater access than Courts. Too often, however, such tribunals quickly become “legalized” or “judicialized” whether because of growing complexity, anxiety about oversight by courts, or simply because lawyers have not been educated to imagine alternatives ways of solving legal problems.

While design thinking could be a significant tool for existing tribunals, it is of particular importance for the establishment of new tribunals (or new mandates for existing tribunals). Such new ventures are being launched across the country in remarkably diverse settings, from a new approach to public inquiries with the Missing and Murdered Indigenous Women and Girls “design phase” hearings and consultations – to the Review of auto insurance dispute resolution in Ontario which has led to the fundamental resdesign of this model this year.

When considering the design of new tribunals or redesign of existing ones, some specific questions are highlighted. Should the tribunal be physical or virtual (such as the Civil Resolution Tribunal of British Columbia, which went live just a few months ago)? If physical, where should the tribunal be located (in one central location or many satellite storefronts?) and how will its services be accessed (on-line, by phone, in person or in combinations of all of these)? How many languages will the tribunal offer services in, and how will it accommodate people living with physical and/or cognitive disabilities or other impairments? How much will it cost people to use and will all pay the same amount? How will its staff and members be trained to meet the needs of users? Should it adopt an adversarial system of dispute resolution, a mediation or arbitration system, a more inquisitorial set of procedures, or combinations of all of the above tailored to the circumstances?

The questions suggested by design thinking are starkly distinct from the questions typically asked about tribunals within a policy context, or within the doctrines of administrative law and statutory drafting – which often relate to its jurisdiction, authority, rules, expertise, powers, method of appointment and independence. Further, under the current model, questions of statutory authority on the one hand, and budget and staffing for a tribunal on the other, are bifurcated.

Design thinking puts a premium on holistic frameworks that link together issues of statutory jurisdiction with issues of user need so that resources, infrastructure, staffing, training and administrative structures. In short, tribunals have historically been structured in a top-down policy-making exercise, while design thinking leads by definition to a bottom-up process of determining the key features and functions of administrative tribunals. The various rights and protections associated with administrative law (fair and impartial decision-making, transparency and accountability) provide important points of departure for the design process as the focus shifts to users as well.

In light of my exploration of these issues, I suggest new criteria by which the successful design of new administrative bodies should be assessed: including how well needs to be met by an administrative body have been identified; how well purposes and principles of an administrative body – and how these incorporate administrative law protections – have been set out; how well the best model to advance the purposes and principles has been determined; and how well pilots for evaluation, and continuous improvement models have been developed for the administrative body.

I hope as we explore more effective models to resolve disputes, well-designed administrative justice leads the way.