Posts by Sean McDonald:
In a recent issue of Innovations Journal, Fiona Darroch explained how Protimos, her organization, approaches providing protection to some of the world’s most vulnerable populations. We were asked by Innovations Journal to provide a case discussion of this model. The following article was publish in August 2012 and is available here [PDF].
While much of the discussion about legal empowerment focuses on adjusting systems to improve individual access to justice, Protimos has a different and unique approach: collective representation. By serving community-level interests through formal litigation, Protimos represents last-mile communities in systems that have historically ignored or marginalized them. When these actions succeed, they protect the homes and livelihoods of the populations who need them most. Within the legal services profession, too few organizations focus on the tremendous potential of emerging markets in low-functioning formal systems. Although one could make plenty of commercial arguments about service models that are accessible to low-resource populations, Protimos focuses on the development and empowerment that result from representing last-mile communities.
As many have observed, formal legal structures have largely failed to make the rule of law accessible to low-resource communities. However, the rising costs of formal legal services, the increasing complexity of administrative processes, and the emergence of new connection technologies, along with many other factors, are driving a period of innovation in dispute resolution systems around the world. Much of this work focuses on improving access to justice for individuals through systemic reforms, such as the adoption of alternative dispute resolution, user-centric design, legal information distribution, and new communication platforms. Of these, alternative dispute resolution (ADR), as a methodology and a catch-all term for informal systems, has achieved the most institutional recognition. That said, ADR processes typically rely on good-faith negotiations, which are less likely in situations involving large legal power disparities. Protimos fills that gap by enabling its client communities to bring actions in formal legal settings, thereby addressing a disparity in the design of ADR and legal services.
By working at the community level, Protimos focuses on cultural and legal conceptions of collective rights to meet the basic needs of marginalized populations. This approach offers two major innovations: it prioritizes locally appropriate conceptions of rights and ownership, and it facilitates interaction between formal and community-driven mechanisms for distributing resources. Recognizing the difficulty of systemic reform, Protimos harnesses the benefits of collective action to deliver communal value and, gradually, progress.
Perhaps the most exciting aspect of this progress is the interaction between formal legal systems and customary mechanisms for resource management. The approach works equally well with communities that understand property rights as emanating from the individual or the collective. When a Protimos lawsuit succeeds, it protects interests that are typically managed by “informal,” customary, or community mechanisms. Its approach seeks to win collective resources through the formal system and then seemingly relies on the community to distribute those resources. Community management of resources and local dispute resolution hybridizes the implementation of a judgment, allocating authority to different parties at each stage of the process. This is one of the material differences between community representation and class-action lawsuits, which direct the distribution of judgments through formal means. Where litigation results in the community gaining assets, such as commercial protections for intellectual property, local management of those assets comes with the implied approval of the formal legal system. This is consistent with the prevalent trend of adopting ADR mechanisms to manage small claims and civil matters. By working with leaders in the client community to implement judgments, Protimos creates secondary benefits, including procedural precedent and capacity-building.
In many legal and administrative systems (especially common law systems), judicial decisions cumulatively define and interpret governance norms, informing similar subsequent cases. The value of precedent for protecting vulnerable communities is no different: each time Protimos wins a case, it creates at least the potential for similarly situated communities to take the same steps to seek justice. Although the formal value of a precedent varies significantly within and between legal and dispute resolution mechanisms, each positive outcome becomes a point of reference for clients, practitioners, and the legal community at large. Taken alone, each case addresses only the issues raised by the litigating community. In the aggregate, though, cases that establish or protect the interests of last-mile communities begin to set, interpret, and apply increasingly inclusive social norms. There is also the potential that formal enforcement of community rights will have a deterrent effect on common abusers. This is not to imply that, by itself, case-by-case litigation is sufficient to drive systemic reform, but rather that it is a critical element of legal empowerment. The Green Light Programme is an interesting effort to capture and use an international protocol to replicate successful customary and community engagements. Although efforts to standardize and institutionalize norms across legal frameworks vary widely in outcome, every step toward effectively integrating formal and customary systems contributes to the overarching evolution of both systems. Protimos’s success stories demonstrate the power of community legal representation, paving the way for subsequent advocacy and reform efforts.
Creating the procedural framework for empowerment, however, is rarely enough. As Ms. Darroch notes, community empowerment requires ongoing access to capable lawyers and a familiarity with the formal system. The process of working intensively with lawyers and the legal system can be very instructive for client communities, gradually reducing aversion and misinformation about the role of formal institutions. Protimos’s work also builds the capacity of lawyers in a range of specialized rights enforcement areas, from environmental regulation to commercial intellectual property to forced resettlement. The experience of researching, litigating, and resolving these cases increases the capacity of local lawyers to represent similarly marginalized communities. Each initiative helps build local, specialized capacity in client communities and lawyers, making high-quality services more accessible to last-mile communities. By fostering networks and professional legal services that are accessible to low-resource communities, Protimos is building the human infrastructure necessary for sustainable legal empowerment.
There is no doubt that Protimos’s approach has exciting potential, but it also raises a number of questions. One of the major challenges in the legal services industry is that equality of access is constitutionally promised but logistically difficult to deliver. The inability of virtually every government around the world to create legal services markets that adequately meet the needs of low-resource and last-mile communities demonstrates the difficulty of effective legal empowerment. While Protimos provides obvious value to its clients in these communities, it’s not clear whether or how their collective representation and capacity-building model will achieve financial sustainability. Ms. Darroch refers to development funding and impact investing as potential sources of support, but third-party actors are no substitute for functioning commercial markets. Although pro bono and legal aid programs inarguably provide enormous benefits, subsidized legal services can only meet a fraction of the needs of low-resource communities because of limited resources. In the absence of a demand-driven funding model, it’s unclear how Protimos’s local partners will be able to sustainably provide pro bono representation to low-resource communities.
The lack of a sustainability model raises a few secondary questions. For example, does involving third-party development funders or investors in subsidizing legal services constitute a conflict of interest? Third parties often fund dispute resolution mechanisms, but very few such projects have the potential to incur such high-stakes dependence from last-mile communities. How do Protimos partner organizations use the capacity built during the course of these projects? A number of innovative legal service payment models, from unbundling to collective savings, may contribute a solution, but pricing remains a primary concern in many service-oriented development interventions. In the absence of free legal services, will client communities be able to enforce the initial judgment or associated rights? Civil decision enforcement can be onerous, even in functioning systems, and it becomes substantially more so in high-volume legal environments. Whatever the legal environment, rights like intellectual property are variably enforced and expensive to defend. Each of these questions focuses on a design element of Protimos’s work and on how it is contextualized in the greater universe of legal services for low-resource and last-mile communities.
One of the most exciting elements of this approach is the way it builds precedent and human infrastructure for the formal recognition of customary conceptions of collective rights in traditionally individually focused Western systems. As this approach continues to gain traction, generate data, and affect the systems in which it operates, Protimos will have the opportunity to articulate the ways that these projects represent a model capable of making a systemic impact. In the meantime, by using collective representation as the mechanism of engagement to strengthen ADR processes, create reform advocacy frameworks, and build local capacity, Protimos is playing a meaningful part in the legal innovation that will define the next evolution in service provision for last-mile communities.
It’s been a little while since we’ve had the chance to visit our own blog, which, I assure you, we’re very embarrassed about. In the time since we’ve last checked in, we’ve worked with the heroic women of KOFAVIV in Haiti, the brilliant minds of Thoughtworks in Bangalore, and, well, many of you. And we’ll tell you more about that, because we’ve been very fortunate to learn the stories of people doing amazing things for their communities. But, for now, there’s something else we’d like to share:
We were given the opportunity to publish something very important to us in the Innovations Journal. Innovations is a peer-reviewed academic journal that’s co-published by Harvard’s Kennedy School of Governance, M.I.T.’s Legatum Center for Development and Entrepreneurship, and George Mason’s School of Public Policy. In this article, we lay out, in long-form, our vision for the reasoning and role of mobile, and SMS, in the evolution of legal services.
Here’s a bite-sized version of the article:
The legal divide marginalizes people, communities, and institutions that are unable to engage with even the most basic government services. As a result, billions of businesses, homes, and crimes exist outside the purview of government protections. The UN estimates that in some places, these informal or “shadow” transactions represent as much as 90 percent of business.Perhaps more concerning is that this is most prevalent among those who need legal safeguards the most.
Remote and poor communities, traditionally the people most vulnerable to abuse and exclusion, face additional obstacles to justice. Distance, education, and cost present often insurmountable challenges to accessing institutions or basic services. The increasing cost of legal services has forced these people to rely on overwhelmed publicly supported legal aid, public defense, or administrative service providers. These legal services, where they exist, are increasingly being cut or drastically altered due to budget reforms. Even in comparatively effective legal systems, a shortage of resources in publicly supported legal services results in the functional exclusion of large swaths of most populations. The international community is candid about the fact that after decades of programming and billions of dollars, the rule of law has yet to reach the bottom of the pyramid. As a result, the poor remain unable to defend their rights, livelihoods, homes, and families.
While there are a number of obstacles to accessing legal systems, many of them are the result of barriers to communication. SMS is the world’s cheapest, most ubiquitous data communications channel, in large part because it overcomes many of these barriers. By using simple pieces of open-source software, legal service providers could use SMS to maintain digital records, conduct basic remote intake, and improve client management, all while reducing costs at a time when every cent counts. This article is an exploration of the potential role of mobile technologies in the extension and improvement of access to the rule of law.”
As always, thank you for reading, and stay tuned. More to come, very soon.
photo credit: The Liberian Observer
In an unfortunately familiar near-panic, negotiating with a would-be immovable airline desk agent, I learned something about Liberia in specific, and progress in general. Solutions are better than rules and the new will never succeed without building on the old.
I was in Monrovia to attend the first ever Mobile Innovations Conference (MICO), which focused on ways to use mobile phones to augment the work of Liberia’s burgeoning civil society. The Conference, which was hosted by the International Research and Exchanges Board (IREX) and USAID, brought together media organizations from all over the country, election officials, the nation’s largest mobile service provider, USAID, cabinet ministries, civil society representatives, superintendents’ (governors) offices, and a handful of technology organizations. Through presentations and brainstorming sessions (and, as with any conference, lunch), we began to talk about both the opportunities and the challenges that face Liberian civil society.
Liberia is a country that is still hamstrung by the ravages of their civil war. Literacy hovers at 30 percent. The poverty is staggering and pervasive. There is little-to-no infrastructure. The better-off have reliable electricity provided by privately owned generators that run on scarce and expensive fuel. The undersea cable that is hoped to bring an affordable Internet to Liberia won’t make landfall until at least next year. It seems bleak.
Just like that day at the airport.
I’d played fast and loose with a barely delivered suggestion that I appear at the airport 90 minutes before my flight’s departure time, arriving a seemingly recoverable 80 minutes early. When I showed up, I was told that boarding had been closed and my only hope was to negotiate or, more likely, plead, with the airline representative. And so I did. To absolutely, positively no avail.
The steely agent was French, an import interested in doing his job, not solving my problem. The rules were the rules. The desk was closed, the airline’s international security standards made it “impossible” to bridge the 100m of physical distance between the plane and I in the 75 minutes before departure. The rules weren’t, in fact, rules, though. More on that in a second.
I was welcome to rebook on the next flight, which was coming in 3 days.
Then something great happened. A Liberian took over. I’ll save you the details, but she called the head of the airport, the head of the airport called our immovable agent with his intractable rules and did the “impossible.” Moments later, we were whisked through ticketing, customs, security (Liberian), and then security (International Airline’s private agents). We made the plane with time to spare.
The airline had, as they often do, determined that the Liberian Airport wasn’t secure enough and that the Liberian Government wasn’t capable of solving the problem. So they had literally hired, ironically, a Liberian private security company to completely replicate the clearance process. What was infuriating at the time, but insulting in retrospect, was that the two processes were exactly identical. The airline desk agent was imposing the impractical standards of an establishment that didn’t trust the Liberians to solve a problem, despite the fact that they had matched them at every step.
At the MICO Conference, a community radio operator in an outer-lying region described another challenge. That many Liberians, even those with phones, don’t necessarily know how to use text messages. To get his community up to speed, he suggested a combination of workshops, radio programs, and then something I’d never even considered: a town crier.
There are a number of communities for whom town criers make perfect sense. They’re the original community radio stations and newspapers, while providing all the interactivity and personality of social media. It’s locally led, sustainable, and could actually provide the depth of support needed to build the community’s skill set.
The MICO Conference was a brilliant confluence of Liberians designing solutions to local problems, with the support of international assistance. What emerged was a unique combination of the old and new, tailored by practicality as opposed to doctrine. This IREX initiative, led by a Liberian, will use international assistance to select and support the approaches that go forward. My hope is that they will embrace both old and new, solving problems instead of relying on principles.
As Bill Burke, the Conference’s organizer said, “This is a new Liberia. And we hope it gets newer and newer.” The question is whether we, as an international community, will be able to keep up.
I met Adriana Suarez at a Casa de Justicia (Justice House) in Robledo, Colombia. Adriana isn’t tall, but she has the kind of strong build that makes it very clear that you’d probably lose to her in a fair fight, and that you wouldn’t be the first. She welcomed us with a smile as she led us to her office, clad in a cotton t-shirt and jeans. As she ushered me to a small, round table, I noticed a bandage wrapped around her arm. Sitting around this table, she told me about the work she does to bring justice to those in Colombia who otherwise wouldn’t have anywhere to turn.
Adriana is the Coordinator of the Justice House in Villa de Socorro, and has taken responsibility for another in Robledo, which means that she oversees upwards of 50 staff in two locations, from more than six different branches of local, state, and national Government, who handle tens of thousands of cases a year. She and her staff funnel hundreds of clients a day through the appropriate lawyer, mediator, human rights ombudsman, or multiple service providers, without much help. If making order out of that chaos sounds daunting, it’s because it is.
Her job is doubly complicated by the fact that the people whose work she oversees don’t work for her, and, perhaps even more concerningly, do not particularly work with each other. What this means is that although Adriana is responsible for which cases go to which staff, the Government has not given her the authority to manage the people doing the work. Each lawyer, mediator, human rights ombudsman, and municipal authority, has its own systems for management, which don’t include her. For clients, this means glaring inefficiencies and that even if they were to complain to Adriana, there’s only so much she can do to help.
This would be frustrating for anyone. Adriana, however, holds it all together with a forceful optimism. There is no question that she controls her Justice Houses, and she does it through a combination of empathy, endurance, determination, and Excel spreadsheets.
Every day, dozens, if not hundreds, of people line up in front of each Justice House, seeking help to resolve life’s challenges. They wait, patiently, for hours, to approach the information desk, where they receive a simple intake form (name, age, gender, address, mobile phone number, cause of complaint, etc.). This form is then handed back to a lone information desk attendant, who dutifully enters all of these details into an Excel spreadsheet (and not the fancy kind), to form a simple list of visitors. Each client is independently referred to the service provider, or providers, best suited to their needs. There, they wait in another line, for the service provider to be available. It is first-come-first-served, because that’s the only way for it to be fair. This process repeats for every client, across every claim, and for every visit.
It is a wonder, with all that waiting, that much of anything gets done. On top of that, Adriana’s Justice Houses operate in some of Medellín’s most dangerous neighborhoods, which were the epicenter of much of Colombia’s criminal and political violence. It is all the more impressive, then, that Adriana’s Justice Houses are widely cited as the best-run of the country’s 65 Justice Houses (soon to be 82).
Still, with FrontlineSMS:Legal at each information desk, these Houses could deliver so much more justice. Clients could fill out intake forms and schedule appointments via SMS, saving thousands of hours of wait time a week. Service providers could have a schedule that told them what they were doing when they went to work and show clients the respect of keeping appointments. And perhaps most importantly, Adriana would be able to actually use the information collected to coordinate her Justice House more effectively. She’d be able to monitor the cases assigned to each service provider, ensuring that she didn’t overload over-burdened staff, all while easing their record-keeping (by being able to transfer digital records from the information desk). In short, finally, there would be a way to make Adriana’s job just a little bit easier.
I left Medellín humbled by Adriana’s courage in the face of a never-ending stream of clients and incredibly scarce resources with which to help them. Taking my leave of Adriana at the door, my eye fell on again the bandage on her arm. For a moment, I wondered… But no. I am almost positive she didn’t hurt her arm fighting for her Justice Houses. Almost.
We recently spent some time exploring the ways that mobile technology can be used to improve the work of the justice system in Colombia. Our trip took us through Bogota, Pasto, and Medellín, where we met a lot of incredible people, working very hard to restore peace and stability to their communities. Along the way, we encountered a few people whose stories we thought you should hear. We’ll be writing them up and posting them over the coming weeks.
If you have stories or relationships with the Colombian Justice System that you’d like to share, be in touch and we’ll publish them: firstname.lastname@example.org
In the meantime, here’s one of our favorites:
Estrellita, moving from cry to smile.
Somehow, when you talk about the law, people never see Estrellita. It’s always some burly police officer or smarmy shark lawyer. But in Bogota, watching this 80-something Conciliador en Equidad (Community Conciliator) tear up as she described the Casa de Justicia (Justice House) as her favorite place in the world, it was hard to see anything else. For some who seek justice in Colombia, Estrellita is the only person they ever have to see.
Estrellita is one of 25 Community Conciliators in the Soccoro neighborhood of Medellin, one of the most historically violent places in Colombia. Community Conciliators are local volunteers that mediate conflicts in their neighborhoods. These mediations lead to agreements that are enforced as binding contracts, where necessary. Community Conciliators also act as referral agents, helping connect people to the resources they need.
Although Estrellita and her group are known to be some of the best in Colombia, Community Conciliators are, by-and-large, a loosely organized and under-supported group. The Ministry of Interior and Justice administers an initial training and certification process for Community Conciliators, but there is little subsequent management. There are no formal reporting structures for Community Conciliators, leading to huge variations in the quality and accessibility (and thus validity) of the agreements they mediate. This breeds uncertainty about the number of practicing Community Conciliators, the quality of the work they do, and the impact they have. The Conciliators themselves keep paper records meticulously, as a point of pride. Without context or aggregation, however, these records don’t make it much further than the filing cabinet.
The Ministry of Interior and Justice has recently begun efforts to build its institutional relationship with Community Conciliators, which will likely provide a much-needed channel. What that channel is, though, hasn’t been decided.
That channel is, we believe, the mobile phone in their pockets. By deploying FrontlineSMS:Legal, we can expand, organize, and record the incredible work that Community Conciliators do every day. Because when Community Conciliators are mobile, everywhere’s a Justice House. And that’s enough to make more than just Estrellita tear up.
As you know, we’ve recently launched FrontlineSMS:Legal. In order to get a little additional start-up capital, we’ve entered into a competition, where all it takes to get to the final round is your vote(s)!
Here comes the ask: You have to set up a profile (which only takes a second, here: http://www.netsquared.org/user/register). Then you vote (here: http://www.netsquared.org/projectgallery) by selecting no fewer than 3 and no more than 5 projects. You vote by clicking on the name of the project, which reveals a drop down, and a little box in the right hand corner. You click that, and voila, you’ve voted. Voting closes very soon, so please do this as soon as is possible/convenient.
Please be sure to vote for FrontlineSMS:Legal (our page is here: http://www.netsquared.org/projects/frontlinesmslegal-0)!
Thanks for your consideration and time (AND VOTE!)
It’s been a little over two weeks since we launched FrontlineSMS:Legal and we’ve been honored to receive feedback from colleagues, partners, and… we’ll admit it, family. Some of that feedback, (we’re looking at you here, family), has been a well-intentioned, but furtive question, “So… What do you do… really?”
It’s probably about time we explain that.
FrontlineSMS:Legal uses mobile technology to improve the way that legal systems work. According to Making the Law Work for Everyone, a seminal report issued by the United Nations’ Commission on Legal Empowerment for the Poor, 4 billion people lack meaningful access to the legal resources they need. Whether it’s reporting a crime, opening a business, or demonstrating land ownership, the law is a part of almost everything we do. Those who live outside the reach of effective legal systems are more vulnerable to, well, everything.
There are a number of incredible people, organizations, and governments working to fix this problem in different ways. Legal aid programs, law school clinics, non-profit organizations, and bar associations all offer programs that offer free services to those who can afford lawyers. Some countries go even further, adopting alternative justice models. For example, India created mobile courts to bring services to people in remote areas. Other places, like Colombia (with some help), have set up one-stop shops, where people can take care of all their legal needs at once. All of these systems have had unique successes and challenges in reaching the “last mile.”
Legal systems, perhaps more than any other government service, rely on in-depth communication. It makes sense, then, that a lot of the challenges involved in legal systems are about communication, as opposed to the legal system itself. At the same time, the UN estimates that there are (currently) 5 billion active mobile phones in the world, making them the single most popular communication platform ever.
FrontlineSMS:Legal uses mobile technologies to lower the barriers to communication between legal systems and the people they serve. So, for India’s mobile court system, for example, FrontlineSMS:Legal could enable people to learn when the court was going to be in their community, file a claim, or schedule a hearing. Additionally, after the court left town, court administrators would have a digital case record that they could use to follow-up with people whose claims weren’t able to be resolved in one visit.
In Colombia’s case, FrontlineSMS:Legal could work with Community Conciliators and local leaders to use SMS as a referral system for cases that require the attention of the formal legal system. Additionally, FrontlineSMS:Legal can use these referrals to begin digital case records that can be forwarded to more than one service provider, such as social workers, lawyers, and hospitals, for people with multiple needs. Lawyers can also use FrontlineSMS:Legal products to stay in touch with clients over SMS, informing them of important events, such as hearings, depositions, or filing deadlines.
Legal systems are complicated and we don’t think that SMS can ever replace the extremely important person-to-person communication that makes them work. We do believe, however, that the world’s most popular communication platform will play an important role in reaching the 4 billion people that the law doesn’t. FrontlineSMS:Legal can help. Really.
In many parts of the world, people are forced to endure abuse and neglect because they have no other recourse. Whether it’s domestic abuse victims facing continuing violence or dispossessed landowners facing homelessness, the void caused by absentee legal systems can have life altering consequences. Without non-violent dispute resolution systems, citizens settle disagreements themselves, which can lead to a range of outcomes, including violent conflict.
Governments and citizens face enormous barriers to sustaining effective legal systems, including limited financial resources, a lack of physical infrastructure, uncertain public sentiment, and complex processes. FrontlineSMS:Legal uses mobile technologies to bridge formal and informal dispute resolution systems, increasing access to justice in the areas that need it most.