The Rechtwijzer was – and remains – an important project whose one-time global eminence and now demise merits a good deal of contemplation of the kind that Professor Maurits Barendrecht gave in a earlier post a couple of days ago. This was a development which, from its beginnings in 2007, set a new agenda for providers of legal aid. Its influence gained pace when it was revamped in 2012 and further advanced when it was re-issued in a new version 2.0 incorporating an online dispute resolution element in November 2015. Barely 18 months later, the Rechtwijzer closed – to be replaced by a less ambitious Justice42 programme later in the year aimed much more at a domestic Dutch audience and limited to divorce rather than wider aspirations of the original.
The important issue for outside observers is the degree to which the fall of the Rechtwijzer was structural – caused by principles integral to its methodology – or contingent – down to individual factors affecting their implementation. In his thoughtful piece, Maurits Barendrecht explores three theories:
(1) Citizens do not want online supported resolution services;
(2) Institutional funders – legal aid boards, ministries, courts and law firms – are not ready for online supported dispute resolution services;
(3) The market can resolve the access to justice problem, so government is not needed and we (the Hague Institute for the Internationalisation of Law – HiiL) failed to deliver.
Before proceeding to examine failure, let us recognise success. This was at least fourfold.
First, Rechtwijzer 1.0 was a game-changer in showing how information/advice websites could become interactive and tailor information to an individual user. Its notion of ‘justice journeys’ and guided pathways continues to provide a challenge to all online providers in the field. The very best of the providers of clear ‘static’ information – such as citizensadvice.org.uk or CLEO in Ontario – look a bit limited compared to the dynamic approach still visible in Rechtwijzer derivates such as MyLawBC. There are other ways of being interactive – such as the use of chatbots or the incorporation of self-assembly documents – but the Rechtwijzer continues to provide a challenge to which information providers need to respond.
Second, Rechtwijzer 2.0 provided an alternative route into online dispute resolution which was different from BC’s Civil Resolution Tribunal and the English proposed online court. The resolution grew out of the process of advising on and resolving a problem rather than as an offshoot of a court, as both of these are. That remains a radical approach and it challenges those developing courts to explore the integration of their online resolution procedures with preliminary advice and information, in the provision of which a court is naturally under some constraint of objectivity.
Third, the Rechtwijzer was accompanied by a major promotional effort that sent members of the support team, largely from HiiL, around the globe to proselytise for its approach. Maurits notes the degree of international interest and it was extraordinary. Just as two examples, HiiL team members presented both to conferences of the International Legal Aid Group (multiple times) and the Legal Services Corporation Technical Initiative Grants programme. As Maurits records, HiiL team members spoke to countless legal aid administrators and ministries.
Fourth, the consequence of this activity was that the Rechtwijzer inspired and set the benchmark for ODR projects in a number of jurisdictions – not least England and Wales where Lord Justice Briggs referred to it in his reports arguing for an online court.
So, if it was so great, what went wrong? Maurits blames a lack of marketing and the resistance of institutional justice players:
The Dutch legal aid board and Ministry of Justice did not actively market the platform, but perhaps we could have raised money for this and have done this ourselves … The demand for better procedures from citizens is huge. But the government institutions to which we entrust adjudication and legal aid do not have processes for implementing and scaling up innovation.
There were undoubtedly contingent factors that played a part. The alliance of three very disparate institutions – a government-funded legal aid board, a commercial software company, and entrepreneurial not for profit institution – was always likely to prove unwieldy and, by all accounts, it was. In addition, the project was unfortunate in losing its champion within the Legal Aid Board and the Ministry of Justice through his retirement. But, my own list of considerations would be as follows:
First, a general weakness of government or foundation-funded projects is that they are usually one-shot deals. Commercial organisations can even make a fetish of failure – as in the acclaim for ‘building to fail’. They can learn the lessons and arise from the ashes. As Jeff Bezos told Business Insider: ‘I’ve made billions of dollars of failures at Amazon.com…None of those things are fun. But they also don’t matter.’ He went on to say: ‘What really matters is, companies that don’t continue to experiment, companies that don’t embrace failure, they eventually get in a desperate position where the only thing they can do is a Hail Mary bet at the very end of their corporate existence.’ The problem for government IT projects is that they can too easily get into a ‘Hail Mary’ position – where success all depends on one ambitious play.
Governments and foundations often do not have the luxury of being able to recover and return. Where they do, you can see the advantages – as on the improvement over the years of the UK HMRC tax site. However, a trail of major government IT failures has even merited its own wikipedia entry, revealing rather too many of them (think Universal Credit, for example) as emanating from the UK. For that reason, there seem very good reasons to delay implementation of online courts until we can see what happens in other countries. In particular, gung-ho domestic advocates of online courts should split support in principle from the timing of implementation – where the sensible advice may be to wait and see what lessons arise from the now global leader – BC’s online Civil Resolution Tribunal. This started taking small claims from 1 June. Personally, I would give it at least a year before I spent a single penny.
Second, there is an issue about where you start with online dispute resolution. It makes absolute sense for Legal Aid Boards and their equivalent to look at online provision of information. Even the UK government – determined to cut funds for family breakup – put funds into a sorting out separation site which was initially unfit for purpose but is now a bit better. MyLawBC has followed only Rechtwijzer 1.0 in providing interactive information and assistance with negotiating a settlement rather than adding the 2.0 version of ODR. The move to 2.0 was significant. It brought the fledgling programme into opposition with lawyers instead of, as did 1.0, potentially of helping them. It dived into the resolution process with the most complicated type of dispute. Personally, I can see the attraction of starting with small claims and establishing proof of concept among less emotionally charged cases. I recognise that this might not give the legal aid savings hoped for by those jurisdictions which, unlike my own, have just not cut away legal aid without any replacement. But it might make more sense to establish the basic platform for a bit longer before developing it further.
Third, the ultimate failure of the Rechtwijzer was in version 2.0’s inability to obtain more than around 1 per cent of the users going through the system in a context where it was under pressure not only to balance its books but develop a significant revenue stream for two of the members of the supporting consortium. That goes to Maurits’ first theory. Users may get comfortable with online interactive advice and information, particularly where supported by offline assistance like the Dutch Legal Counters distributed through the country. But it may have been too big a jump for them to go too quickly to resolution.
Finally, there is the position of the courts. Users will want some incentive to go online. As Maurits says, the market alone is likely to provide insufficient encouragement. The courts need to play their part. The views of both groups within HiiL, as reported by Maurits, should be respected. The platform should be as welcoming and encouraging as possible. But, while retaining always the right of a user to proceed conventionally, there could reasonably be financial incentives in terms of reduced court costs for carrying on from initial advice to online resolution.
So, finally, what are the lessons? Well, the Rechtwijzer team should not be too dispirited. They have set a standard which stands as one which others have to meet. The digital naysayers should not use the Rechtwijzer as an alleged example that proves either than online advice or online resolution does not work. And, governments should temper their haste and proceed slowly (for which more literate readers will realise there is an appropriate and widely known classical phrase). After all, if the motto of making haste slowly (and its accompanying image of the butterfly and the crab) was good enough for rulers from the Emperor Augustus to Cosimo de Medici, then it is likely to hold good for the far less celebrated holders of offices such as our Secretaries of State for Justice.