Maurits Barendrecht (Hague Institute for Innovation of Law and Tilburg University)
In March 2017, HiiL, Modria and the Raad voor Rechtsbijstand (the Dutch legal aid board) announced that their cooperation around the Rechtwijzer platform had ended. What happened to this ‘revolutionary’ online justice platform and what are the lessons? This is an edited version of a paper exploring different theories: it was prepared for a conference of the International Legal Aid Group in June 2017.
Rechtwijzer: the platform and the philosophy
Separation may the biggest personal challenge most people will ever face. A Justice Needs Survey completed in Holland in 2014 clearly spelled out the impact divorce has on couples and their children. The mission of Rechtwijzer Uit Elkaar was to reduce this burden through innovating the legal process of divorce itself; reducing the adversarial nature of the process; and making it easy to follow. The design was focused on letting people agree on all the things they need to restructure their lives after a divorce. It did not support mediation or adjudication as they are generally known but it offered redesigned mediation and adjudication services so that the parties can make fair, sustainable agreements.
The platform had a diagnosis phase; an intake phase for the initiating party; and then invited the other to join and undertake the same intake process. Once intake was completed, the parties could start working on agreements on the topics that occur in every separation – such as future communication channels, children matters, housing, property issues (money and debts) and maintenance. The dispute resolution model was that of integrative (principled) negotiation. So the process was based on interests rather than rights, but the parties were told of rules such as those for dividing property, child support and standard arrangements for visiting rights so that they could agree on the basis of informed consent. Agreed agreements were reviewed by a neutral lawyer.
The platform was built on the Modria online dispute resolution platform. This was designed for consumer disputes (e-commerce) that are to be resolved quickly, supported by algorithms. It had to be made suitable for separation, where people have to work on their individual solutions and apply them for many years. So HiiL operated a front-end with the online dispute resolution support. The platform was offered to users by the Dutch legal aid board through its website. Modria and HiiL charged a set-up fee and a fee per user to the legal aid board. The platform charged users a fixed fee for mediation, review and adjudication. The legal aid board subsidised fees for those entitled to legal aid.
The platform met critical acclaim by the media, international experts and in various reports on court reform. We counted over 60 media mentions in 12 countries, including the Economist and major newspapers. We gave dozens of presentations at conferences, parliaments and ministries. We received visits from civil servants at ministries and leading judges. The only real criticism came from the Dutch Bar that wanted more safeguards for security and informed consent, and also lobbied for having lawyers do the intake instead of doing this online.
Theory 1: Citizens do not want online supported resolution services
The model of the Rechtwijzer complied with the available research. The latest legal needs survey in the Netherlands (Geschilbeslechtingsdelta 2014) suggests that 48 per cent of people seeking assistance in the legal sector want advice about how to solve problems; 45 per cent advice about their rights and obligations; 24 per cent help with approaching the other party; 20 per cent mediation; 18 per cent some kind of financial advice; and 16 per cent help with starting a procedure. The demand for a lawyer making a case in court is much less prominent (9 per cent).
For us, the ultimate test came down to whether the platform actually worked for users. Their evaluations during the process were generally positive, and increased when we implemented improvements. The average ratings for the phases were 7 out of 10, with slightly lower ratings initially for the review phase, which quickly improved when both platform and lawyers adjusted their working methods.
The most important indication is what users say after six months. Using Rechtwijzer Uit Elkaar led to over half of the participants experiencing low or very low stress levels during their separation, with 36 per cent experiencing normal stress levels.
It may be difficult to believe that users experience less stress when using a platform with an average completion time of 24.3 hours. However, users can spread out these hours as they like, so as to deal with each step of the divorce at their own pace. Our users have reported as a result that they have more control over when and where they utilise the platform. In fact 84 per cent of participants felt that they have more control over their separation as a direct result of this user empowerment.
‘The process is clear and Rechtwijzer takes finding, helping with and resolving issues seriously.’
Traditionally, control in the legal separation process is left in the hands of the lawyers hired by both parties. The Rechtwijzer Uit Elkaar process did not seek to remove lawyers from the equation, but instead to integrate them in the platform. Rechtwijzer Uit Elkaar sought to maximise lawyers’ interventions in such a way as to aid our users but not supersede their judgement. As a result, 82 per cent of users felt respected or very respected by lawyers or mediators on the platform.
Almost 70 per cent of the participants stated that – to a great or very great extent – the emotional pain they felt before using Rechtwijzer Uit Elkaar was reduced after separating on the platform. Indeed, over 70 per cent of the participants found the process fair to a great or very great extent.
Close to 60 per cent of those starting a case found their partner willing to participate; finalised their agreements through the platform; filed them and saw their separation registered. This is a satisfactory percentage. Legal professionals are used to substantial numbers of clients who drop out of the process or shop around for other options, as legal needs studies consistently show..
The quality of the agreements couples have been guided to making are a marked improvement over those of a traditional divorce process. When asked, 72 per cent of the participants rated their experience on the platform with 8 out of 10 or more (7.7 on average) and 70 per cent said that its use led to effective and sustainable solutions. Although there is obviously a self-selection effect that makes comparison difficult, this can be contrasted to an average separation procedure in the Netherlands scoring 2.81 on a 1 to 5 point scale.
There was no ambiguity in the willingness of most users to recommend the process to others. We also observed that the number of Rechtwijzer users went up quickly when major media reported about the platform. The users were from all income-groups, and somewhat more from groups with more education.
So, the conclusion seems to be that a substantial proportion of the population is ready for online supported dispute resolution services and is enthusiastic about using them. Without major marketing efforts, we easily reached a market share of 2-3 per cent of the separation market (becoming the biggest ‘law firm’ for separation) with spikes of 5 per cent after media coverage.
Theory 2: Legal aid boards, ministries, courts and law firms not ready for online supported dispute resolution services
The expectation of the Rechtwijzer team was that legal aid boards, ministries and courts around the world would want to move forward with this type of ODR solutions quickly after the Dutch delivered a proof of concept. A legal aid crisis is evident in many countries. Dissatisfaction with the current court procedures is considerable – with the possible exception of some Nordic countries, Switzerland, Austria and Germany where settlement processes are well developed and integrated in accessible court procedures.
So why no move forward?
The English NGO Relate worked with us to test an English version. The Legal Services Society in British Columbia implemented a version supporting only negotiation. But it was hard for them to gain financial and regulatory support for a full scale launch in England or Canada. We tried to bring together a consortium of legal aid boards to develop the system. but there was considerable resistance to a public-private partnership between a non-profit foundation for access to justice, a Silicon valley start-up and a leading legal aid board. Naively perhaps, we thought that such a partnership would make innovation happen.
For those who joined the ODR conference in The Hague in May 2016 and saw the trend report we wrote (ODR and the Courts: the challenge of 100% access to justice), it is probably no surprise that the necessary cooperation processes did not materialise. We devoted an entire chapter to the institutional barriers to reaping the full benefits of online supported dispute resolution services. At present, legal aid boards, courts and ministries are not actively looking for the best processes to help their citizens resolve their disputes. There is not a lively international market for the best possible procedures for separation, neighbour disputes or drugs related crime.
Why is that ‘market’ not materialising? Our experience is that legal aid boards are mostly busy with funding lawyers, spending 80-95 per cent of their budgets on that, and have not yet found a parallel financial model for delivering access to justice in innovative ways. Websites or mediation services are often funded as projects but not as part of the core program. Courts try to digitise their current procedures, spending huge sums on this that mainly goes to IT services companies that deliver tailor-made software. But their procedures, which are prescribed by legislation, do not allow implementation of innovative technologies. Ministries mediate between politicians, courts and the legal profession, without a clear vision on the future of access to justice and funding. There is a lot of talk about ODR, but no serious attempt yet to introduce it for a class of problems that really matters to citizens.
The attempt in British Columbia (Civil Resolution Tribunal) and England and Wales to set up ODR for small claims is a case in point. It may sound smart to start small and then scale up. But will scaling up ever happen? We are pessimistic, based on earlier experience with small claims innovation worldwide. Leaving small claims to the innovators is a nice gesture that shows willingness to innovate. But it does not require real change in the court system or the legal profession, because nobody in the system is dependent on small claims. Starting with small claims may just be ‘token reform’.
Another option for bringing online supported services to the market is through law firms. Relate sought cooperation with an organisation of law firms serving families with resolution services. In the Netherlands, we had some explorative dialogue with the organisation of family lawyers and mediators. The problem seems to be that individual law firms are too small to invest in new technology. They are limited in their growth and innovation options, because regulation does not allow them to bring in outside investors, entrepreneurs, IT professionals or professionals from other disciplines as co-owners of their firm. Law firms are also not allowed in many jurisdictions to pay referral fees, so business models based on that are difficult as well. Finally, lawyers are restricted in their ability to serve the couple, or the family, because of a conflict of interest.
Theory 3: The market can resolve the access to justice problem, so government not needed, and we failed to deliver
The third alternative is that Rechtwijzer did not work because we at HiiL failed to deliver. There are certainly things we could have done better. 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. We could perhaps have made the platform more attractive for lawyers working on it. Perhaps we focused too much on the satisfaction of users, as well as offering them an affordable platform in the spirit of legal aid.
We debated this a lot internally. One group, let us call them the experienced dispute system designers, pointed to the submission problem. Getting ‘the other party’ to the table and parties voluntarily agreeing to use the same procedure often just does not happen. This is the reason why voluntary mediation fails to attract huge numbers of disputes, and the same is true for arbitration and many new, voluntary procedures at courts. The causes of this are not well understood. Emotions, tactics, reactive devaluation of proposals from the other party, lack of trust in decisions of third parties and communication problems may play a role.
In this version of the theory, strong incentives are needed to bring the two parties to an ODR platform in order to let their dispute be resolved. Courts can provide these through rules for decisions by default.
The opposing group looks to encourage parties to use the procedure by making it easy, safe and attractive rather than forcing them to use it. On the Rechtwijzer platform, the respondent did not have to pay. The invitation to participate is worded in a friendly way and users are asked for their views regarding possible solutions, instead of having to react to the proposals and positions of the other party.
We just do not yet know whether an online dispute resolution system, used by two parties in a conflict, can exist as an independent service, offered by the market. Until now, it has not emerged.
If involvement of government is needed, we do not know exactly exactly what is necessary. The optimal mix may consist of some elements of endorsement, referral and subsidy. The use of neutral (online supported) dispute resolution services may also be promoted in other ways. The government could make this mandatory for those wanting to use lawyers with a government subsidy, stimulating both lawyers and clients to use the platform. Or it might be prescribed.
There is nothing new here. Currently, in many countries, only lawyers can give you access to courts. Use of them is promoted in many ways. So why not create a level playing field between lawyers and ODR, as well as other innovative legal services?
Conclusions and implications
So, what can the Rechtwijzer case teach us? Online supported dispute resolution can be effective. Outcomes can be sustainable; fair, improve relationships; and help undo some of the harm done.
The challenge is how to implement this improved way of resolving disputes. The main providers of justice – such as courts, legal aid boards, ministries and law firms – cannot implement online supported dispute resolution under the current regulatory regimes. Offering ODR to citizens as an independent service is an option, but it is uncertain whether it will succeed without some form of government support. Although many forms of alternative dispute resolution failed to make a breakthrough in the past, a smart ODR offering may yet be able to do this.
A new organisation, supported by HiiL know how, and in cooperation with the Dutch legal aid board, has been set up to develop a new platform, with a new offering. Many of the lessons learned will be implemented. During the next months, more information will be available.
The broader lesson is about innovation in legal dispute resolution systems. That is hard to achieve. ODR is no different from mediation, problem-solving courts, fast tracks, ombudsmen and countless other attempts to replace traditional court procedures by more innovative mechanisms. 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. Truly opening up to innovation. That should happen first.