Promoting RJ and NAJ in PI claims resolution
Amsterdam Interdisciplinary Centre for Law and Health
NAJ Conference Melbourne 4-7 May 2010
Promoting restorative justice and non-adversial justice in
personal injury claims resolution
Promoting RJ and NAJ in PI claims resolution
Key messages of presentation:
•
Identification of legal obligation of debtor to obligation to pay
compensation, to promote restorative justice
(relates to the law of damages in general)
•
Identification of symbolic therapeutic or ant-therapeutic message
inherent in procedures and processes
(relates to the RJ dimension of procedure in general)
•
Illustration of adversarial elements enforcing NAJ and RJ
(relates to the promotion of NAJ and RJ in general)
Promoting RJ and NAJ in PI claims resolution
The Netherlands
• Pop. 16,5 mil.
• Land 33,883 km2
• 487 inh. per km2 - most densely
populated country in Europe
• Hybrid system of PI compensation
• Level of protection of stat. system
quite limited in various ways
• Tort system always amounts to a very
substantive addition of compensation;
• and often constitutes the only source of
compensation (e.g. non-employees,
other loss than loss of income)
Promoting RJ and NAJ in PI claims resolution
PI cases in The Netherlands
About 50.000 new cases each year,
only a few percent are brought
before the courts
Unsettled cases (%)
100
90
80
70
60
50
40
About 60% is settled within one
year, 80% within two years, and 95%
within three years. About 2,5%
remains unsettled for more than five
years.
30
20
10
0
0
1
2
3
4
5
Process duration (years)
>5
Promoting RJ and NAJ in PI claims resolution
Non-pecuniary needs of PI victims and their relatives
A. Specifically by the opposing party
 that he was at fault
 that he realizes the consequences for the victim
 by offering apologies
 by his making the situation as bearable as possible
1. ‘Acknowledgment’
B. By the opposing party, the outside world and the victim’s own social environment
 of what has happened to the victim
 by being taken seriously
 that not the victim, but the opposing party is responsible
 that the opposing party is liable
C. By the receipt of financial compensation
2.
3.
4.
5.
6.
Wanting to know what precisely happened
Calling the opposing party to account
Not wanting to suffer for someone else’s error
Wanting to obtain justice
Wanting to prevent the same thing from happening to someone else
Promoting RJ and NAJ in PI claims resolution
Psychological aspects PI claims settlement process
• Secondary victimisation (social psychology)
• Secondary gain (epidemiology)
• Procedural Justice (PJ) (social psychology)
Promoting RJ and NAJ in PI claims resolution
Psychological aspects PI claims settlement process
• Secondary victimisation (social psychology)
• Secondary gain (epidemiology)
see paper of Genevieve Grant: state of the art identification of
methodological flaws in existing empirical evidence of adverse health
outcomes of PI compensation processes
• Procedural Justice (PJ) (social psychology)
Promoting RJ and NAJ in PI claims resolution
Positive potential of adversarial tort system
with regard to non-pecuniary needs
1. Adversary procedure
2. Formal nature
(especially of court proceedings)
3. Institutional legal rituals
(both in- and out of court)
- the right to be heard
- the hearing of both sides of any
argument
- the right to confront adverse
witnesses and experts
- the right to call one’s own
witnesses and experts
• maximize the opportunity to confront the
wrongdoer
• maximize the opportunity to tell one’s own
story
• maximize the opportunity to participate
• maximize the victim’s personal opportunity of
exerting influence on the outcome
• grant the victim dignity and respect
• express the importance that society attaches
to the case
• increase confidence in the correctness of the
outcome
Promoting RJ and NAJ in PI claims resolution
Positive potential of adversarial tort system
with regard to non-pecuniary needs
1. Adversary procedure
2. Formal nature
(especially of court proceedings)
3. Institutional legal rituals
(both in- and out of court)
- the right to be heard
- the hearing of both sides of any
argument
- the right to confront adverse
witnesses and experts
- the right to call one’s own
witnesses and experts
Susan Daicoff: adversarial elements to remain
part of our toolbox
• maximize the opportunity to confront the
wrongdoer
• maximize the opportunity to tell one’s own
story
• maximize the opportunity to participate
• maximize the victim’s personal opportunity of
exerting influence on the outcome
• grant the victim dignity and respect
• express the importance that society attaches
to the case
• increase confidence in the correctness of the
outcome
Promoting RJ and NAJ in PI claims resolution
Positive potential of adversarial tort system
with regard to non-pecuniary needs
1. Adversary procedure
2. Formal nature
(especially of court proceedings)
3. Institutional legal rituals
(both in- and out of court)
- the right to be heard
- the hearing of both sides of any
argument
- the right to confront adverse
witnesses and experts
- the right to call one’s own
witnesses and experts
• maximize the opportunity to confront the
wrongdoer
• maximize the opportunity to tell one’s own
story
• maximize the opportunity to participate
• maximize the victim’s personal opportunity of
exerting influence on the outcome
• grant the victim dignity and respect
• express the importance that society attaches
to the case
• increase confidence in the correctness of the
outcome
Susan Daicoff: adversarial elements to remain
part of our toolbox => in response to appeal of A-G Hulls: label of ‘NAJ’ will turn
out to be to narrow
Promoting RJ and NAJ in PI claims resolution
Discrepancy in PI claims settlement process
The virtually exclusive
focus on
financial compensation
The great importance victims
attach to needs of a nonpecuniary nature
Promoting RJ and NAJ in PI claims resolution
Discrepancy in PI claims settlement process
This discrepancy is all the more problematic because of the following:
Failure to fulfil
non-pecuniary needs
Promotes
Secondary victimisation
Secondary gain
Fulfilment of
non-pecuniary needs
Promotes
Emotional recovery
Procedural justice
Impedes recovery
Promotes recovery
And this while recovery should take precedence over compensation!
Promoting RJ and NAJ in PI claims resolution
Discrepancy in PI claims settlement process
“A compensation regime that does not take reasonable steps to
address the therapeutic needs of the claimants is one that cannot
achieve its professed restitutionary goals. As is made clear in this
study, money alone cannot heal.”
Feldthusen et al. 2000
Promoting RJ and NAJ in PI claims resolution
Merits of conclusion on ‘positive potential’
• ‘Yes we can’=> inspiration for improvement within existing tort system
• Reform agenda => determinants of PJ part of the objectives of reform
• Identification of a legal obligation to reform => recovery takes
precedence over compensation
• Full realisation of potential? => probably not very realistic
• Not: real indication that other systems (no-fault, first-party ins.) would
have less ‘potential’ for promoting PJ
=> no empirical proof (and not plausible – e.g. more manageability)
Promoting RJ and NAJ in PI claims resolution
Merits of conclusion on ‘positive potential’
• ‘Yes we can’=> inspiration for improvement within existing tort system
• Reform agenda => determinants of PJ part of the objectives of reform
• Identification of a legal obligation to reform => recovery takes
precedence over compensation
• Full realisation of potential? => probably not very realistic
• Not: real indication that other systems (no-fault, first-party ins.) would
have less ‘potential’ for promoting PJ
=> no empirical proof (and not plausible – e.g. more manageability)
Promoting RJ and NAJ in PI claims resolution
Provisional frame of reference for reform: pos & neg aspects PI process
Positive aspects
Negative aspects
Being provided with adequate information (in terms of content, comprehensibility,
dosing and timing)
The feeling of not being provided or being insufficiently provided with information
Participation in and control over the settlement process
The feeling of having no control over the settlement process
Opportunity to tell one’s own story
Wrongdoer/opposing party avoids direct contact concerning emotional dimension
Being able to confront the wrongdoer
Unnecessary polarization of the relationships between the parties
Respectful and dignified approach
The feeling of not being taken seriously, of being mistrusted and not being believed.
The necessity of undergoing repeated medical examinations
Friendliness, openness and justification by the opposing party of his conduct in the
interaction
Perception of the opposing party as impersonal, cold, cynical, and solely bent on
minimizing the compensation as much as possible
Confidence in the impartiality of the decision when a third party has to decide the
dispute
The feeling of also losing out in court to the omnipotence of the insurance company
Promoting RJ and NAJ in PI claims resolution
Possible operationalisation of legal duty to put
recovery first: promoting emotional recovery
• Empirical research: suffering a wrong disrupts moral and emotional
balance between wrongdoer (WD) and victim (V)
• V experiences moral and emotional injustice
• Need for ‘emotional recovery’ as well as financial recovery
• V needs WD (and his agents – e.g. insurer) to take responsibility for
accident and its consequences
Promoting RJ and NAJ in PI claims resolution
The symbolic message inherent in present PI resolution procedure
•
•
•
•
•
•
Properties of PI claims settlement process:
V has to make claim, take initiative, suffer the burden of proof
Insurer appears to be able to allow himself a passive attitude
=> carries across implicit message that not wrongdoer/insurer but V is
responsible for solving problem of damage caused
WD doesn’t pay compensation himself, generally no direct communication
between WD and V, WD often not even aware of consequences for V
=> V experiences that WD does not take responsibility
Out of court settlement – no decision by judge
=> no formal establishment of moral responsibility of WD for accident
Also no symbolic acknowledgement of moral responsibility of WD by insurer
‘Taboo trade-off’: PI cannot really be compensated by money
Promoting RJ and NAJ in PI claims resolution
Two ways to promote emotional recovery
Apologies by
wrongdoer
‘Acknowledgement’
by WD’s agents
Promoting RJ and NAJ in PI claims resolution
Two (of several) ways to promote emotional
recovery
e.g. Stephen
Monterosso’s suggestion
of RJ conferences
in Work. Comp.
Apologies by
wrongdoer
‘Acknowledgement’
by WD’s agents
Promoting RJ and NAJ in PI claims resolution
Two (of several) ways to promote emotional
recovery
e.g. Stephen
Monterosso’s suggestion
of RJ conferences
in Work. Comp.
e.g. Robyn Carroll &
Normann Witzleb: plea for
more appropriate private
remedies
Apologies by
wrongdoer
‘Acknowledgement’
by WD’s agents
Promoting RJ and NAJ in PI claims resolution
Effective elements of apology by wrongdoer
• Acknowledgment of responsibility for wrongdoing and its conseqenses
• Expression of compassion
• Undertaking of action: compensation and prevention
Promoting RJ and NAJ in PI claims resolution
Effective elements of ‘acknowledgement’ by
wrongdoer’s agents:
• Acknowledgment of responsibility for wrongdoing and its conseqenses
• Expression of compassion
• Undertaking of action: compensation and prevention
Promoting RJ and NAJ in PI claims resolution
The symbolic message inherent in new PI resolution procedure
• Insurer/agent must take and keep initiative in resolution process
• Behaviour of insurer/agent should carry across implicit message that
insurer/agent and not victim is the ‘owner’ of the problem that mistake
was made and damage was caused, which now has to be managed,
assessed and compensated
• Resolution process should favour determinants of Procedural Justice:
– Information
– Involvement
– Voice
– Consultation
– Respect
Promoting RJ and NAJ in PI claims resolution
Promoting personal contact
• Pilot by several Dutch administrative bodies concerning procedure of
handling administrative complaints and petitions
• Personnel to take up direct contact with citizen as soon as possible by
means of telephone call, before putting complaint / petition further
through formal administrative procedure
• Results of this rather modest intervention:
• 40 to 60% of complaints / petitions were informally settled in one way
or another and withdrawn from formal procedure
• Eventually some departments could be scaled down in size to such
extent that retraining program for personnel had to be initiated
Promoting RJ and NAJ in PI claims resolution
The dispute resolution process continuum
Negotiation
Conciliation
Mediation
(After King et al. 2009)
Litigation
Arbitration
more adversarial
less adversarial
Promoting RJ and NAJ in PI claims resolution
Ad hoc limited judicial intervention in out of court
settlement
Negotiation
Conciliation
Mediation
Litigation
Arbitration
The judge ‘cutting knots’ and steering settlement process
Promoting RJ and NAJ in PI claims resolution
Ad hoc limited judicial intervention in out of court
settlement
Negotiation
Conciliation
Mediation
Litigation
Arbitration
NAJ and AJ are only opposing paradigms. Both are means to an end: giving people the
justice they need. Elements of one can and should enforce the other.
Promoting RJ and NAJ in PI claims resolution
Ad hoc limited judicial intervention in out of court
settlement
Negotiation
Conciliation
Mediation
Litigation
Arbitration
NAJ and AJ are only opposing paradigms. Both are means to an end: giving people the
justice they need. Elements of one can and should enforce the other.
Beware of risk of burdening mainstreaming of NAJ with disregard of merits of AJ