The Federal Election and Stakeholder Culture

Elections remind us that in a democracy, voters are “stakeholders” who can evaluate the potential of government platforms.

We might not share or even understand other people’s use of their vote in an election, but we all appreciate that it is a legitimate right and a critical part of being Canadian. The right to vote is a value that supersedes how any one individual might use their vote, as non-partisan voter registration organizations have recognized.

We are committed to the idea that we are all stakeholders in governance, whether we might disagree about how an individual vote is used, or how an election plays out.

Outside the “Big Example” of elections, stakeholder culture is at play in most parts of our consuming world these days. Stakeholder culture believes that the best way to identify the most effective, embraced and efficient services (or policies, or system structure, etc) is by collaboration among users and providers. Stakeholder collaboration is a no-brainer for retailers, who must respond to what buyers need and want (including convenience: this is part of the business model for “Wal-Mart Law”, started by law grads with experience in retail). Software companies must do BETA testing, which is also tellingly described as “user acceptance testing”, or UAT. 

Access to Justice and federal election platforms

“Why is debate about A2J absent from the federal election? Why is this the same question we were asking before the 2015 election?” Isn’t an election where everyone gets their say on the issues of the day?

Somehow or other, when it comes to A2J, our stakeholder culture seems to vanish.

We know that an enormous number of Canadians are affected by the unaffordability of legal services, and that the impact on them is wide-ranging – including financial, emotional, and the well-being of their family. But we aren’t talking about this at a political level, either provincially or federally.

Why not?

The answer I have been given most often is that Canadians don’t really care about Access to Justice. I have never believed this – it simply does not conform to my experience. I could spend 24 hours a day listening to people who contact me about their awful experiences of trying to navigate the legal system alone without counsel. Plenty of people care. Plenty of people have their own horror stories, and even more know others who have them.

No. We don’t hear any discussion about A2J in the federal election is because there is no stakeholder culture in the legal system. The only voices that seem to be accepted as stakeholders in the justice system are the insiders. Not the public. Not the voters.

The legal profession and court administration have always asserted that since they know most and best, the public should not bother their pretty little heads about the justice system. This assumes an exceptionalism – a culture that begins the first day of law school – that places lawyers and judges on a pedestal. This is the, “just trust us, it’s really complicated” paternalism that the public accepted for years.

Not any longer.

Stakeholders in the legal system

It is sometimes said that there are four categories of stakeholder: user, provider, influencer, and governance (UPIG). The legal profession is just one of these groups – albeit a critical one, and undeniably the group most knowledgeable about legal procedures but not necessarily or normally about social and personal impact – when it comes to the justice system.

But that doesn’t mean that the other groups, including users, don’t have important knowledge and experience, as well as valuable perspectives. And any amount of dialogue among legal professionals does not substitute for really including and integrating the views of the public.

NSRLP has been lobbying since its inception for user stakeholders to be included in justice reform discussions. At the risk of sounding like a cracked record, NSRLP has a 1,000-plus searchable database (originally our “Speakers Bureau” database) that can respond to requests for:

• User evaluators
• Testers for new resources and programming
• Members of policy committees and justice reform thinktanks

I have worked with some amazing SRLs over the last six years who are extremely intelligent, constructive, and dedicated to making the system they have suffered through better for others coming after them. If you want stakeholder voices in your justice reform project, we will facilitate those match-ups.

Stakeholder culture is coming to the legal system (and is inevitable)

The stakeholder culture is coming to the legal system, just like it has to every other area of service and practice that includes both “experts” and “non-experts”. The people who use the system are demanding that their voices are heard. This is not something the profession can just ignore or ameliorate.

The systemic problem here is an assumption that only the experts can have any useful or valid views about change in the legal system. This reflects the expert/novice model of legal services, which is also under serious and growing pressure. It is protected and secured by the self-regulation monopoly – which is under exactly the same pressure. There is a fear that letting the nose of the camel into the tent in the form of user stakeholders will challenge the monopoly, fee structure, and status of the legal profession and judges (it will – and it should!).

Back in the 1950’s, renowned philosopher C.P. Snow made the argument that it was critical to avoid a chasm of understanding – “The Two Cultures” – between scientists and non-scientists. Policymaking in science and technology clearly requires the combined expertise of both scientists and politicians. Snow wrote then:

“When those two senses have grown apart, then no society is going to be able to think with wisdom.”

In the present moment, the same sentiment is articulated by former Chief Justice Beverley McLachlin:

“Increasingly, we are recognizing that the response to the access to justice crisis in Canada is a shared responsibility, requiring a multifaceted approach. While governments, courts and lawyers have significant roles to play, they are not the only actors.”

Real changes in the legal system to address the A2J crisis will only happen when users and providers grow together, not apart.