Justice reform is a hot topic in Canada these days. In particular, we have the benefit of the CBA’s Envisioning Equal Justice Summit and report and the final report of the National Action Committee on Access to Justice in Civil and Family matters. These follow a long series of reports federally and provincially that include many of the same recommendations for change including BC’s Civil Justice Reform Working group report and the CBA’s 1996 report. In fact, in 1919 Reginald H. Smith identified delay, court costs and fees and the expense of counsel as the three primary defects in the US judicial system and called for fundamental reform.
The NAC has identified the “implementation gap” between great ideas and change on the ground. This is the next major challenge – how do we actually achieve meaningful and lasting change?
The answer might lie in examining the process we have used to effect change. I offer three observations:
1. It can’t end with a report. Since when is leadership about telling other people what to do? How useful are reports that provide detailed recommendations about what other people should do? Effective reform can’t end with a report. The destination has to be the solution to the problematic situation.
2. Not everyone is at the table. Real reform of the justice system cannot be designed or implemented only by lawyers, judges and legal academics. As Jerry McHale Q.C. said about the family justice system: “This is not a legal system with some social elements, it is a social system with some legal elements”. Real change will happen when the table includes people from the broader social context all working together.
3. We have to deal with the barriers head on. The reports often fail to deal with the very prickly underlying barriers to change. The current system is perfectly designed to produce the results it is now producing and it will resist change. Barriers can be deeply buried and will not surface until change begins to create conflict. As an example, the influence of the self-interest of the many players and institutions in the “justice system” is rarely named or explored. As Peter Drucker once said: “Culture eats strategy for breakfast”. Any solution has to work WITH self-interest and cannot expect players to act contrary to their self-interest. There must be attractive incentives to change or it will not happen. Change cannot ignore these very powerful forces. Adam Kahane emphasizes that solutions have to combine both “power” and “love”. He quotes from Martin Luther King Jr.:
Power without love is reckless and abusive, and love without power is sentimental and anemic. Power at its best is love implementing the demands of justice, and justice at its best is power correcting everything that stands against love.
In B.C., we have watched for decades the cycle of bright, committed and well-intentioned lawyers, judges and academics studying the problems and producing reports that gather dust on an increasingly large shelf. We have to do something differently.
Are There Other Process Options?
The good news is that there are options that are working in other contexts. One approach is “transformational scenario planning” and a related option is the “social lab” approach. These are not new; they have been used around the world in a wide variety of contexts. They are, however, new to the Canadian justice system. A leader in this area is Adam Kahane of Reos Partners, a Canadian who has spearheaded this work for over 25 years. His specialty is helping people solve complex and intractable problems that cannot be solved by one group alone. Examples include the transition to democracy in South Africa after Mandela’s release from prison and the future of Columbia with its long history of violence involving the military, guerillas and the drug cartels.
The “social lab” approach is particularly interesting since it gathers a group of people who are a microcosym of the entire system (defined broadly) who work together, not to create a report which tells others people what to do, but to solve the problematic situation. Yes, the group has to include the “users” (the public) AND those working in other silos who are affected by these unresolved problems. Once the problematic situation is understood then the group oversees experiments to “try stuff out”. It uses rapid prototyping rather than highly planned projects and pilots in order to spur innovation and continuous improvement.
Current examples include the “Thrive By 5” initiative, sponsored by the Calgary United Way, focusing on early childhood development.
The challenges faced in the Canadian justice system are indeed complex and seemingly intractable. They need a new approach. It is not enough for a small group to tell others what they need to do to solve the problems.
Many influential voices are calling for action but a key disconnect is that the people who are supposed to act are not the people who were involved in crafting the report and recommendations. What we have seen in the past is that even the most valiant change efforts peter out over time due to a variety of reasons including a lack of ongoing funding and people resources as well as the powerful forces within the system that create “structural friction” to any kind of change.
We need a group representing the entire system (defined much more broadly than what we are used to) working within a platform/framework which supports ongoing creativity until the problematic situation is resolved. These approaches are designed to encompass the entire change process and therefore take significant commitment, time and resources.
I begin to despair when I consider all of the innovative ideas proposed over the last few decades that might have worked if they had been tried within an ongoing incubator where they could be monitored, compared, combined, tweaked, improved, and published. Perhaps it is not too late to pause, step back and plan a much more integrated “social lab” for the Canadian justice system. I hope so.