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Research

The Civil Justice System and the Public: Working Document

Research Questions

  1. What is the current state of communication between the (broadly defined) civil justice system and the public about being involved in a case in the civil court system?
  2. How is the communication experienced by:
    1. People within the system?
      1. among each other
      2. with the public
    2. The public?
  3. What can be done to improve communication between the civil court system and the public?
  4. In the process of answering the above questions, do other issues emerge that have import for other components (including agencies, systems, outcomes) of the justice system?

Purpose of the Working Document

The purpose of this working document is to provide an organized, but dynamic, forum to review and develop the research project. During the preparation of funding proposals and the early planning stages of the project, the Research Directors generated many thoughts and ideas about how to frame and conduct the research. These threads have been brought together in the initial version of the working document. As a tool to assist us in meeting our goals of a collaborative research partnership, the document will be circulated among the project partners. The purpose is to both inform and invite comments and suggestions. The document will be developed and re-circulated from time to time, as the project advances.

Background

The "Civil Justice System and the Public" is a project designed to study communication between the Canadian civil justice system, particularly that part of the system that is connected with civil courts, and the public. The project seeks as well to develop best practices for improving communication with and about civil courts. The goal is to promote public understanding of, and involvement in, the civil justice system, including the process of civil justice reform. It is believed that this will in turn facilitate the development of the system so as to optimize its accessibility.

There have been many recent reform measures and recommendations regarding the Canadian civil justice system that have emanated from the judiciary, the legal profession and government. A consensus has developed that the system is in need of reform to make it more understandable, accessible, timely and affordable. Such reforms are seen as increasing the system's responsiveness to public needs and expectations. It is acknowledged that the public, as the intended beneficiary of reform efforts, should play a key role in their design and evaluation, but satisfactory mechanisms for ensuring that this occurs are elusive.

The goal of this study is to assess the current state of communication between court-connected aspects of the civil justice system and the public and to make recommendations for its improvement. It is believed that improved communication will provide benefits both directly and indirectly - directly by increasing understanding of the civil justice system, and indirectly by facilitating public involvement in the system and its reform.

The research is funded by the Alberta Law Foundation and the Social Sciences and Humanities Research Council (SSHRC) through a Community-University Research Alliance Grant (CURA). It is coordinated by the Canadian Forum on Civil Justice. Research Directors from the Forum and the University of Alberta are joined by partners from across Canada including the Public Legal Education Association of Canada and member agencies, the Association of Canadian Court Administrators, the Canadian Institute for the Administration of Justice, the Canadian Bar Association, the Alberta Law Reform Institute, the Legal Aid Society of Alberta, Justice Canada, the Canadian Centre for Justice Statistics, the Yellowhead Tribal Community Corrections Society, the Canadian Judicial Council and the Canadian Association of Provincial Court Judges.

Commitment to a Collaborative Partnership Approach

The aim of this project is not just to report problem areas in need of change (to a large extent this has already been done). Rather, the goal is to tap knowledge about effective communication practices that already exist within the communities of those working and using the civil justice system. Such an approach, sometimes called "appreciative inquiry" (Elliot, 1999; Ford and Ashford, 2000), is a strategy for bringing about change by focussing on the achievements of a group and identifying what is 'best' among practices and ideas for further improvements. This approach can only occur in a context of collaboration and partnership that values and incorporates the different experiences and knowledge perspectives of all the participants in a community, organization or system. Establishing a strong partnership network is essential both to creating new knowledge and to providing impetus and support that allows the resulting insights to translate into actual change in everyday practices.

When a community is involved in generating knowledge about itself, it is more accepting of identified need for change and is best able to identify existing strengths (best practices), along with the most effective ways of introducing change by building from these strengths. Individuals and communities that recognize they have valuable and useful insights to share with others are generally willing to do so.

Large scale collaborative and partnership research initiatives are inevitably interdisciplinary and venture across traditional borders to break new ground. Published literature documenting the processes and experiences is fairly limited. There are no clearly agreed definitions of any of the associated terms, and interpretations tend to vary across contexts. Too often researchers and authors have failed to recognize theoretical and practice tensions arising from this oversight. [1] For this reason we have carefully considered what we intend when we refer to a "collaborative partnership" and we have developed the following definition:

Working together in a cooperative, equitable and dynamic relationship, in which knowledge and resources are shared in order to attain goals and take action that is educational, meaningful, and beneficial to all.

It is understood by this definition that:

In the spirit of this definition we welcome further comment and input from our partners concerning this definition and any other aspect of this document.

Goals and Interests of the Research Partners

Preliminary responses to the survey sent out to all the "Civil Justice and the Public" partners, indicate a range of interests and goals. Involvement in different aspects of the civil justice system means that priorities will vary; nevertheless, responses showed considerable agreement on some major directions for the project.

For the Research Directors, a priority is involving all civil justice system participants (the public and those working in the system) in evaluation of, and change to the system by creating liaisons and working partnerships among them. Partners generally share the hope that new and practical knowledge will be created via this approach. Particularly, partners want to identify sustainable mechanisms for effective and productive communication among themselves and with the public. Disseminating such information in a clear and accessible format is a high priority.

In addition to the practical application of communication strategies, some partners also have an interest in gaining more knowledge of the theory of change and/or the process of research methodology. These are also goals for the Research Directors.

Our Approach to Theory, Methodology and Collaborative Partnership Research

The Canadian Forum on Civil Justice is dedicated to facilitating needed reform to the civil justice system in its broadest sense. In Canada, what is often referred to as the civil justice system, is actually a complex set of systems made up of many separately and independently governed components. This reality poses many challenges for theory, research and reform. The "Civil Justice System and the Public" project focuses on ways that effective communication within the civil court system can promote change that will improve public access to, and interaction with, this facet of the Canadian civil justice system as a whole. We are aware that it is not just the courts that communicate with the members of the public involved in a civil justice case (but also lawyers, Legal Aid, PLE groups, native court workers, and others) and this adds to the research challenges. In order to capture the complexities of communication in this setting, we propose going to the courts as the public would go to them, identifying methods and modes of communication that occur during that process.

We take a social constructionist approach to theory and methodology which holds that all knowledge and understanding are mediated by social experiences, statuses and interactions. [2] Such a starting position holds certain implications for conducting a research inquiry. Based on the social constructionist perspective, it is our position that:

When other strands of methodological and learning theories are considered alongside the above positions, further implications arise for the conduct of the research:

Developing the Detailed Research Plan

Research Sample

Because the Canadian civil justice system consists of many separate and independently governed fragments, true random sampling is not viable. [3] Instead, purposive sampling will be used to provide in-depth snapshots of communication conditions and current best practices at a variety of civil justice sites across Canada.

Within those contexts, key informants will be identified and approached to provide an interview (with members of the public using the civil justice system identified as key informants for this purpose). The snowball method will be employed to help identify informants in various roles and areas.

Bias is an issue in any research approach (and that includes random sampling, and even mandatory census completion). Thus, it is something we must be aware of, and attempt to reduce as much as possible. Probably, the primary source of bias is self-elimination (those who refuse to take part, are often those researchers most need to talk to). Other sources to guard against are approaches that essentially remove participation possibilities for certain groups; and leading questions that imply a preferred answer, or do not allow the respondent any room to contextualize or qualify an answer. The latter two problems can be addressed with careful planning; the first is much harder to overcome, but recognizing it throughout will help to identify when and where it occurs and minimize it whenever possible. What follows is just the very broad outline of the preliminary research plan.

Our next task is to develop the detailed research instruments needed to collect data in the field. During this process of developing the details of data collection, we will be contacting our partners to ask for their input into the various roles and components of the civil justice system.

Research Question One

What is the current state of communication between the (broadly defined) civil justice system and the public about being involved in a case in the civil court system?

Methodological Approaches

Research Question Two

How is the communication experienced by:

  1. People within the system?
    1. among each other
    2. with the public
  2. The public?
    • How does the civil justice system respond to identified needs and expectations of the public?
    • How do those working within the civil justice system communicate among themselves regarding communication with the public?
    • What methods of public communication is the public aware of?
    • What opinions do the public hold about methods of communication (or lack of these)?
    • What works and why? From an institutional perspective? From the perspective of the public?
    • What concerns exist about current communication practices?

Methodology for addressing the second research question will build on the groundwork laid out under question one. In the field, data will often be simultaneously collected for various components of the overall project. Attention will be paid to all identified roles and groups. All methodological approaches have pros and cons. Deciding which are best suited depends on the various contexts and available resources. At various points in the research we expect to employ some or all of the options outlined below.

Interviews (open and closed-ended approaches)

  1. In-person
    • Advantages: Best for rapport. Specific time is set. Interviewer can offer explanations, record additional comments, and make observation notes.
    • Disadvantages: High resource demands. Interviewer incompetence or bias can ruin usefulness of data.
  2. Telephone
    • Advantages: Similar to in-person if the instrument is well pre-tested. Less costly than in-person and thus allows greater representation, especially where expensive travel would be required.
    • Disadvantages: Interviewer cannot make observations about the site or conditions under which interview occurs. Remains quite resource intensive in terms of interviewer quality and time. Requires good telecommunications links; hands-free equipment; and preferably, ability to tape the call.

Focus groups

Observation

Mailed or e-mailed questionnaires/letters

Research Question Three

What can be done to improve communication between the civil justice system and the public?

The third research question evolves from the study itself and will be addressed by the various study outcomes and products.

It must be remembered that in addressing findings, informing the public about the civil justice system (what it does and how it works) is not the same issue as addressing systemic communication practices within the system among various users (of which the public is only one group). Relatively speaking, informing the public is straightforward, but does not necessarily do anything to improve the public's experience of interactive (2-way) communication with the civil justice system.

The primary intention of the study is the generation and dissemination of new knowledge that allows:

  1. Improved understanding of the state and relations of communication within the civil justice system, and between it and the public.
  2. Increases and encourages the involvement of the public in civil justice reform.
  3. Identifies constructive and effective practices for improving upon the current state of communication (i.e., developing effective communication methods and processes).
  4. Leads to increased access to the civil justice system, increased responsiveness of the civil justice system to the needs/expectations of the public, and thereby an enhanced relationship between the civil justice system and the public.

This will be achieved by attempting to influence present knowledge, attitudes, and practices of the various participants/users of the civil justice system.

In order to achieve this we will:

A list of concrete actions and products which must evolve based on the actual findings of need. What will be most useful? To whom? In what form?

At present, we have identified post-data collection focus group sessions among those working within the civil justice system as an important part of the data analysis and dissemination process.

Research Question Four

In the process of answering the above questions, do other issues emerge that have import for other components (including agencies, systems, outcomes) of the justice system?

Because of the interrelated nature of the various parts and functions of the civil justice system in its broadest sense, we anticipate that issues will emerge that relate to elements of the overall system beyond that of just the court process. Some of these will relate to matters of communication, but we anticipate that other issues will also emerge, and it will be important to identify these for future attention.

References

Elliot, Charles (1999). Locating the energy for change: An introduction to appreciative inquiry. Winnipeg: ISD.

Ford, Neil & Ashford, Graham (2000). The use of Appreciative Inquiry in the PD Forum visioning process. Review of presentation to the PD Forum, January 18, Hull, QC. In PD Forum E-Notes Issue #1, February.

Franklin, C. & Nurius, P. (1998). Constructivism in practice: Methods and challenges. Families International: Milwaukee, Wisconsin.

Goodson, I. & Mangan J. M. (1996). Exploring alternative perspectives in educational research. Interchange 27(1), 41-59.

Hansen, H., Ramstead, J., Richer, S., Smith, S., & Stratton, M. (2001). Unpacking participatory research in education, Interchange 32(3).

Lyddon, W. (1991). Socially constituted knowledge: Philosophical, psychological, and feminist contributions. The Journal of Mind and Behaviour 12(2), 263-280.

Morrow, R. (1994). Critical theory and methodology. Thousand Oaks, CA: Sage.

Stewart, H.J. (1996). Towards improved education practice: Lessons learned from Brock University's Centre for Collaborative research. Education Canada, Spring. 20-25.

Stratton, M. (2001). Getting an education: Students' views on entering and exiting high school. PhD Dissertation (in progress). Ottawa: Carleton University.

Available Related Material

"The social Constructionist Approach to Theory and Methodology." Compiled by Mary Stratton, for the Canadian Forum on Civil Justice, September 2001.

"Ideals, Tensions and Possibilities in Collaborative or Partnership Research." Compiled by Mary Stratton for the Canadian Forum on Civil Justice, September, 2001.

Footnotes

  1. ^ There is for example a very large literature on participatory and collaborative research, but little of it addresses the varied use of these and associated terms, nor the gap between the philosophical ideal and the practiced reality. Some discussion does occur in Hansen et al, 2001; Stewart, 1996; Stratton, 2001).
  2. ^ The following sources provide in-depth discussions of the social constructionist approach: Franklin & Nurius, 1998; Goodson & Mangan, 1996; Lyddon, 1991; Morrow, 1994; Stratton, 2001. An overview of the approach is also on file with the Forum.
  3. ^ This is an issue to be considered even for a national survey conducted by Statistics Canada. Even voluntary participation cannot be guaranteed. Comparability across the various legislative areas will always be a challenge.
  4. ^ A note on gender: It is well established that gender is a factor in almost every social experience, and that women are often particularly disadvantaged when dealing with patriarchal institutions, such as the civil justice system. Gender should not, however, be considered in isolation to other social characteristics as it interacts and impacts differently. For example, some women (i.e., highly educated and middle class) will be better equipped to negotiate the civil justice system than will some men (e.g., low income and education, recent immigrant, and so on). It is, therefore, important to consider gender as an additional factor within each social grouping. The same point, to some extent, must be made when considering race/ethnicity.