Justice Innovation
A team from Justice Design at Osgoode Law’s Winkler Institute developed a prototype of an app that could prep people for small claims court, and take care of issues directly
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Going to small claims court can be nerve racking, costly and time consuming. #B4 Small claims is an online dispute resolution app that will help people resolve claims of under $2000 in a quick, efficient and user-friendly way! No more complicated forms!*
SquaredAway is a web-app that promotes healthy relations between landlords and tenants — helping resolve and prevent housing disputes.
It does so by providing a communications platform for landlords and tenants, as well as wikis, checklists, and other guides.
It lets Chicago tenants and landlords keep track of what issues there are with a given house, and to manage disputes about them.
Talking to Bonnie Hough of the California Judicial Council last week, she recommended checking out several great projects coming out of Canada — specifically British Columbia — for inspiration about how courts can be more user-friendly. Many of them are efforts of the Justice Education Society, which is a public-oriented organization that is developing new tech tools & new user-oriented approaches to delivering legal services.
One example is the Small BC platform online. It is an online dispute resolution system to at least get a person started with filing the forms & tackling the process to resolving a small claim.
Notice also the lady in the bottom right corner — she’s a virtual assistant who speaks in a friendly, conversational way to tell you what the site has to offer and get you started with using the services.
This page gives you the two main options they have to help you recover your claim — giving you a diagramatic view of what each has to offer & what you can start doing now. It’s action-oriented as well as informative.
News appeared today that NBC picked up a pilot from the man behind Law & Order, Dick Wolf, to create a show for next TV season, called You The Jury.
On the show, a civil court case will play out, and the TV-watching public will play the jury. Like with American Idol or other reality shows, people watching at home can use their digital devices to vote on the outcome they think best.
Producers from other reality competitions — Master Chef & Project Runway — will also be working on this show as well.
What does this mean, is it good or bad? One part of me is excited for more view into the realities of the legal process on primetime television — perhaps this is a democratizing effort to make the legal system more comprehensible and visible to normal people. And like other online proposals to crowdsource dispute resolution, through lots of people voicing ‘what’s right, what’s wrong’ — then there might be some model that could be useful in new dispute resolution design.
But my big fears are (1) that a narrative/reality-based show approach will oversimplify the case and lead to distorted outcomes, and (2) that like with Serial, when you open a real-life case open for public scrutiny through mass media, the public might end up pursuing mob justice on platforms like Reddit and otherwise.
Any thoughts, should we be hybridizing our justice system with entertainment channels? Is there any upside to this that makes it worth the potential risks?
There is an interesting court redesign organization that’s come out of the University of Michigan Law School. There is an Online Court Project that Univ. of Michigan has funded, and developed through the company Court Innovations, Inc.
I had written about it previously when my colleague Briane had mentioned an initial write-up of it on University of Michgan’s site. Now the project has been piloted in two different Michigan courts, after having spun out of the Law School into the start-up Court Innovations.
The project is building a tech-based platform for litigants to resolve their problems online, rather than having to come into court.
Court Innovations is developing and implementing online negotiation systems for courts and constituents.
Court Innovations’ online solutions enable you to extend your court to:
Provide fast, efficient, online resolution options for litigants charged with relatively minor offenses.
Help litigants with outstanding issues to understand their options and navigate the court online without needing to hire an attorney.
We are setting up our technology in courts today – contact us to learn more about how our innovative approach can extend your court to increase access to justice in your community.
The platform will use Online Dispute Resolution patterns to have litigants interact with the court using online technology. People who face relatively small charges can contact judges and prosecutors to try to resolve their case without having to come physically to court.
Right now, the Project lets the user try to negotiate a warrant or a traffic ticket.
If the user doesn’t want to negotiate, they can pay the fine directly, or opt to go to court. They can also learn more about their options to make better choices & prep.
Michigan Law’s publication The Law Quandrangle has posted an article, “Transforming What It Means to ‘Go to Court’.” describing the formation of the Project & its development.
By Jared Wadley and Katie Vloet
What if your day in court didn’t have to be in court?
That’s the idea that led Michigan Law Professor J.J. Prescott and Ben Gubernick, ’11, his former student, to invent a first-of-its-kind technology that helps people who have been charged with minor offenses interact with courts online, at any time of day, without needing to hire an attorney.
The software provides a way for litigants with issues ranging from unpaid fines to minor criminal or civil infractions, including traffic tickets, to communicate directly with judges and prosecutors to find mutually agreeable ways to resolve their cases.
“When you look at how many cases courts process, you realize online interaction and resolution is the next frontier. Courts have so much potential to influence people’s lives for the better,” Prescott says. “The challenge is removing barriers to access while making the most of judicial and prosecutorial wisdom and experience. We wanted to make sure the software wouldn’t interfere with everything good that courts are already doing.”
Many people’s jobs don’t give them the flexibility to go to court during regular business hours, Prescott points out. And appearing in court for a minor infraction is time-consuming for judges, prosecutors, and the person charged with an infraction. “A typical scenario is that you wait four hours to see someone and you exchange five words,” he says.
While the online technology saves time for everyone involved, it conversely gives judges and prosecutors more time to learn about the person before making a ruling. Is the defendant, say, very likely or only somewhat likely to get another speeding ticket in the next year? “In the virtual environment, we can give prosecutors and judges more information than they would normally have within their reach about a person, and it can inform their decision making,” Gubernick says.
In-person interaction, of course, remains necessary for a lot of work courts do, Gubernick says. “This technology targets only those cases where online interaction can be faster, fairer, and less costly for everyone involved.
“Our goal is really to increase access to justice.”
“Proof that entrepreneurial ideas are flourishing at Michigan Law””
The project is part of the Global Challenges arm of U-M’s Third Century Initiative, a $50 million, five-year program that is leveraging the University’s interdisciplinary expertise to tackle some of society’s most pressing problems—while also creating learning opportunities for students.
The technology is being piloted at the 14A District Court in Michigan’s Washtenaw County and the 74th District Court in Bay County. Response from the technology’s users has been positive. “This system is working so well for our court that I would like to see it expanded to all the other courts,” says Thomas Truesdell, magistrate of 14A District Court and a board member of the Michigan Association of District Court Magistrates.
With funding through U-M’s Third Century Initiative in place for the next two years, Prescott’s team is preparing to scale the technology. However, the team is thinking far beyond the next few years. Prescott already has worked with U-M Technology Transfer to create Court Innovations Inc., a startup that will provide support and maintenance for the software during the project and grow the business opportunities generated going forward.
The developers and U-M believe the technology can go national. “Court Innovations was founded to ensure post-project sustainability,” says MJ Cartwright, the company’s CEO. “Our job over the next two years is to work with courts and state government groups to lay the foundation for the technology’s complete transition from U-M-based research and development into a commercial solution that can continue to scale and grow in Michigan and across the nation.”
Ken Nisbet, associate vice president for research at U-M Technology Transfer, says the company has leveraged Tech Transfer’s Venture Center, including the Venture Accelerator, to create a compelling value proposition to improve the court system. “This new venture is proof,” Nisbet says, “that entrepreneurial ideas are flourishing at Michigan Law.”
Prescott is pleased with the support from the Law School and the University as a whole. “At the Law School, we’re really expanding in the entrepreneurial arena,” Prescott says. “The great thing about being at a major research institution like U-M is that we are able to work closely with top people in all of the fields that matter to the success of the project—the statistics department, the Ross School of Business, the School of Information, the Ford School of Public Policy—about data modeling, increasing court efficiency, improving the user experience, and ensuring that litigants come away from the process understanding it and feeling that they’ve been fairly treated. It’s great to see the University not just supporting the hard sciences but also broadly interdisciplinary efforts like ours that emerge from the social sciences.”
Gubernick says the entrepreneurial aspects attracted him to the project. “I liked the idea of finding a solution to a problem in the real world,” he says. “And, really, that’s what entrepreneurship is all about—recognizing a problem, and finding a solution that no one has thought of.”
Here’s an article from Washetenaw County in Michigan, about one of the programs — an online dispute system for resolving traffic tickets.
By Jo Mathis, Legal News, October 2014
If you’ve ever spent an entire morning sitting in a packed courtroom to negotiate an outstanding parking or traffic ticket, you’ll appreciate a new system intended to nudge the courts closer to modern times.The Online Court Project, funded by the University of Michigan and developed by Court Innovations, Inc., allows citizens who’ve received minor civil infractions or traffic tickets to seek reduced charges or other solutions to their problems online.The program is currently being piloted in 14-A1 District Court, which covers Pittsfield Township. Eligible individuals simply go to the Court Innovations’ website at https://www.courtinnovations.com/14A1/traffic14A1/index, type in the information, and wait for the prosecutor and court decision-makers at the other end to examine their driving record and make a decision.“The goal is to make the whole process easier for everybody on both sides, and at the same time, ensure that people are able to access the courts if they have concerns,” said Michigan Law Professor J.J. Prescott, who led the team that designed the new system. “That’s what courts are there for—to resolve disputes while at the same time making sure that people get a fair opportunity to have their concerns addressed.”In-person meetings with a judge or magistrate are not only time-consuming, intimidating, and confusing—they’re often unnecessary, and requiring them can be counterproductive, if people decide not to use the courts as a result, Prescott said. And while litigants can already pay fines online, those with concerns about their case must go to court and face a tedious process that involves travel, parking, and taking time off work.“We’re providing a platform that allows litigants and decision-makers to negotiate in a very efficient and effective way. For many minor court issues, a face-to-face meeting with a judge or prosecutor simply doesn’t improve the outcome for either side. Just as ATM machines allow you to skip seeing a bank teller during business hours, technology can help streamline and improve much of what courts do,” said Prescott.At 14-A District Court, Magistrate A. Thomas Truesdell approves or denies the litigants’ requests after the Pittsfield Township police do the same. Truesdell, who says he typically follows the recommendation of police, is a big fan of the new Online Court Project, which has been in place for six months now.The bottom-line goal, he said, is to reduce some of the tickets down to “impeding traffic,” which adds no points and therefore, does not cause an increase in car insurance.“We were doing this by having an officer—an officer, not the one who wrote the ticket—come out to the court on several different tickets and see if they’d reduce it down to impeding traffic,” he said. “But of course, you’re still paying for one officer to come out, and you’re still paying for court time.”He said the idea to allow an electronic pre-hearing conference makes sense.“It’s a win-win for everybody because number one, with the way budgets are these days, the police do not have to show up, which means they can do it from their office if they have to do anything,” he said. “It eliminates the court time which means we don’t have to put that on our docket. And it also frees up time for the magistrate, of course. It also has a convenient factor for the defendant.”The ease of paying the fee online is another advantage for both the defendant and court, he said.Tickets for traffic crashes will not be reduced because they affect other parties.The three charges that are eligible—and in the vast majority of cases are granted a reduction to “impeding traffic”—are speeding, disobeying a traffic control device, and failure to stop at a stop sign. The project is funded by the University of Michigan’s Third Century Initiative grant program. The grant is being used primarily to develop the software and implement pilots, with the hope of bringing the service to courts throughout Michigan and beyond. Over the two-year grant period, the use of the scalable software will transition away from a pilot implementation and be supported by courts and stakeholders.“Courts affect many thousands of people every day,” said Prescott. “Most people have spent at least some time dealing with a traffic ticket through what seems to be an antiquated process. Often, people can’t figure out what they’re supposed to be doing and they are unable to hire a lawyer to help them.”The software is specifically designed for each court so that the magistrates, clerks, and judges have at their disposal the information they need to grant or deny each request.“In the case of traffic tickets, a lot of this has to do with your record,” said Prescott. “Not surprisingly, when the software reveals a poor driving history, judges are much less likely to offer a reduction.”Prescott, who is also the co-director of the Empirical Legal Studies Center and the Law and Economics Program at Michigan Law, noted that while appearing before a judge with expertise and discretion is necessary in serious cases, most of what clogs the courts now are minor infractions that can be better handled online.He recalls a time he waited in court four hours to have his ticket reduced from “evading a traffic device” to “impeding traffic” after a 30 second negotiation with the prosecutor. Many people can’t take that time off from work to wait in court, and sometimes decision-makers can be influenced by irrelevant considerations, like a person’s appearance. An on-line request levels the playing field, he said.The program is expanding in Bay County this month to include the online mediation of outstanding warrants. Prescott believes the program has great potential to reduce the thousands of outstanding warrants for individuals who inadvertently missed a court date for a minor infraction or didn’t have the money to pay a fine. In many cases, these individuals simply don’t know how to resolve their warrant, but are too intimidated to walk into a court, even if they could take a day off work, for fear of being arrested.Later this fall, the Online Court Project will expand into Ypsilanti, Northfield Township, and Saline.Truesdell sees only positive results.“It’s worked wonderfully,” he said. “It’s a win-win.”
The New York Times profiled the start-up Roompact yesterday, framing it as a roommate dispute tool. It also is a legal product — it’s a platform for two parties to come together and create a contract about the terms on which they’ll be roommates, and then flag potential violations & failures after the agreement is signed. In this case, the university administration can intervene and try to lead a dispute resolution process through the platform.
Roompact has an interesting mix of the dispute resolution functions that have been popping up online over the past decade — and also conflict prevention tech. It advertises an algorithm that will help a person find a person whom they’re less likely to come into conflict with, and then tries to allow for collaborative contracting and early responses to problems with the agreement that bubble up.
It would be interesting to see other Dispute Resolution platforms aimed not at roommates, but in families, the workplace, or commercial transactions. This model incorporates a full user flow rather than a simple dispute resolution function:
A platform with such a wider flow of services — focusing on earlier stages in a pair’s relationship as well as the later ones, when the problems have devolved into ‘disputes’ to be resolved — could be a new direction for the dispute resolution legal products to evolve towards. Or it could be a service design for traditional courts to consider as they bring their mediation efforts online.
Here’s the New York Times article about Roompact:
via Today’s Students Don’t Have to Suffer if They Hate Their Roommates – NYTimes.com.
Over the last few years, many colleges and universities have adopted online roommate matching programs that help incoming students look for and select their own first-year roommates. Like dating sites, the roommate analytics systems can match people based on preferences like music volume, sociability and even tolerance for snoring.
But schools are not offering first-year students roommate personalization engines merely to ease their transition to college life, as I noted in my article for Sunday Business this week. These educational institutions are trying to reduce an expensive problem: roommate conflicts so severe that they can prompt students to transfer or drop out before their sophomore year.
Rona Skinner, the director of business strategies for student auxiliary services at Rochester Institute of Technology in Rochester, N.Y., for instance, said she had seen roommates develop conflicts over issues like overnight guests and even whether their dorm room windows should be kept open or closed.
To try to preclude those types of problems, the university uses StarRez, a comprehensive online housing management program that includes a roommate self-selection option for students.
“In today’s market, we have to be competitive inside and outside the academic arena,” Ms. Skinner said. “If we can give students a happy experience with a roommate, they are likely to be retained, not just at the school, but in on-campus housing.”
A start-up, Roompact, is trying to tackle college roommate conflicts directly.
The company has developed online roommate agreements that incoming college students can use to agree on parameters for dorm room cleanliness, security, property sharing and other issues. Then Roompact sends each student a text message on a weekly or twice-monthly basis asking for a rating of how the roommate relationship is going.
The Roompact system also allows university staff members to track the roommate relationship in each dorm room and notifies them when a problem seems to be developing.
“Today, a residence hall director who is in charge of a whole building might find out there’s a problem after a student has already been fighting with a roommate for two months,” said Matt Unger, the chief executive of Roompact. “We want to detect conflict earlier, notify folks in residential life and help with conflict resolution.”
This fall, the University of Hartford in West Hartford, Conn., plans to introduce Roompact for its incoming class, which includes about 1,200 residential students.
The university already had its own strategy in place to try to mitigate roommate conflict. It used paper-based roommate agreements for students and assigned university staff members, like residence counselors, to regularly check in with each student.
While that oversight will continue, Shawn McQuillan, the university’s associate director for residential life, said he hoped features like the regular text messages from Roompact seeking updates will encourage students to better communicate their roommate situations to the university.
“With students becoming more high-tech, it was like pulling teeth to try to get them to fill out the paper forms,” Mr. McQuillan said. “For students who don’t communicate much with us directly, we’re hoping they are going to be more honest with the text messages.”
I’ve started scouting out different courtroom based service & system designs. Here is one, that my colleague Briane alerted to me: the Online Court Project based out of the University of Michigan. It features new ideas to integrate tech and automation into court processes.
Led by U-M Law School professor J.J. Prescott, this Global Challenges project seeks to revolutionize how the public interacts with courts. Its technology-driven approach has the potential to create an entirely new case resolution process, one that improves performance and accessibility along numerous dimensions and makes courts better suited for the information age.
Background
Judicial systems exist to provide a way for societies to organize themselves around the rule of law. In order to accomplish this goal, courts need to be (1) accessible; (2) fair; and (3) cost-effective. Unfortunately, due to their reliance on antiquated, non-technological processes, courts in the United States have seen little improvement on these three measures in recent decades.
With respect to access to justice, American courts are notoriously difficult to understand and use, especially for people without attorneys. In significant part, this confusion results from the fact that courts are structured almost entirely around face-to-face, one-on-one interactions with judges and court personnel, which is comparable to providing banking services without ATM’s.
Even the simplest negotiation points in the process require litigants to physically go to court, a process that is time-consuming, opaque, and intimidating. Consequently, millions of people, who have relatively minor issues that require negotiation with the judge or prosecutor, are either inconvenienced or simply avoid interacting with the system. The magnitude of this problem is demonstrated by the approximately 30 million warrants currently outstanding for failure to appear for show cause hearings.
Likewise, the courts’ reliance on snapshot decision-making leads to sub-optimal decisions. One-on-one process simply does not provide judges and court personnel with adequate time to collect and analyze information about litigants. As a result, decisions are often based on little more than general impressions about litigants, opening the door for numerous undesirable outcomes, including:
- Decisions influenced by subconscious biases.
- Perceived arbitrariness, such as when misdemeanor defendants with substantively identical cases receive wildly different sanctions.
- Due process failures, such litigants with unpaid fines being imprisoned due to incorrect assessments of their ability to pay.
Finally, already cash-strapped states and municipalities are crippled by fixed-cost legal infrastructure. Not only are current processes non-technological, they scale poorly; costs are high on a per transaction basis, and remain high even as volume increases, essentially imposing a tax on growth.
What is required is a scalable, web-based alternative to the one-on- one decision making process.
Project Goals
This project will harness emerging insights into how judges do their jobs to build an algorithm-based portal to allow litigants to engage in largely automated negotiations with courts online.
The project’s algorithmic approach is designed to replicate the outcomes generated by the traditional one-on-one consultative process, but with enormous transaction costs savings. This approach works by providing judges with a way to specify in advance what information is required to make a decision about a litigant’s case, and providing litigants with the ability to submit that information to the court over the internet.
Judges apply rules to factual information to generate decisions; these rules can either be clear-cut application of law or what are sometimes referred to as “decisions heuristics,” the individual rules of thumb that judges use to make repetitive decisions quickly. While some thought-leaders in the judicial community have encouraged judges to formalize decision heuristics for consistency purposes, this project goes one step further to achieve a truly novel result: by programming these rules into software, many of the high-volume transactions that currently require the in-person interaction can be handled online. The technology will have two basic components: (1) a dashboard interface where judges can enter decision rules based on the facts they view important; (2) a forward-facing portal where litigants can submit information and requests using a multiple-choice framework similar to TurboTax.
While this method can theoretically automate a significant amount of the work courts are asked to do, in Phase 1 we will create the system for one to three courthouses, designed to process resolutions for a limited subset of transactions, such as unpaid fines and minor misdemeanor charges.
Success in Phase 1 will involve identifying suitable courthouses for pilot deployment, assisting judges in mapping the decision rules they use to make repetitive decisions, building the technology so that it integrates with the court’s data systems, and then assisting the court in encouraging litigant adoption. Assuming Phase 1 is successful, Phase 2 will focus on expanding the types of transactions delegated to the software, and more importantly, scale-up to an entire county or even the entire state.
If successful, this project will result in the creation of an entirely new type of court, one well-suited to the information age. In addition to efficiency gains, the shift away from snapshot, one-on-one decision making will open the door for a more “data-driven” justice system. Finally, in addition to being scalable throughout the United States the technology has potentially strong applications for the developing world, where a lack of effective legal infrastructure acts as a major deterrent to foreign investment.
Project Team:
James. J. Prescott: Principal Investigator
Benjamin Gubernick: Project Research Director.
MJ Cartwright: Pilot Program Director
Court Innovations, Inc.: A U-M startup founded by Professor Prescott and Mr. Gubernick.
In the Netherlands, HiiL & the Dutch Legal Aid Board are developing a second version of their Rechtwijzer platform, to provide consumers with legal help. Here is the summary of their 1.0 platform (mostly around triage — getting someone with a legal problem to services) and then the 2.0 platform (around resolving disputes online).
Conflicts and disputes are hard facts about life that anyone can encounter. Solving the disputes however can become time consuming, costly and frustrating. Rechtwijzer 2.0 is a follow up project to the innovative Rechtwijzer 1.0, a website provided by Dutch Legal Aid Board (Raad van Rechtsbijstand) elevating the efficiency of judicial system.
A successful Rechtwijzer 1.0
Rechtwijzer 1.0 was designed to assist people to get directed to a lawyer or juridical support. Put simply it is an appropriate, trustable legal helping hand that would assist people throughout their conflicts. Rechtwijzer has taken one step further to enhance its services from diagnosing and referral, into dispute-solving in Rechtwijzer 2.0.
The added advantage of this legal project is promoting and offering effective and efficient problem-solving that will benefit all of the parties involved. Reaching for justice and fairness The goal of the improved website is to enable all parties in the conflict to interact on one platform. If the problem remains unsolved, an online mediator would get involved and in case the mediator does not succeed in reaching a settlement, a judge will come in the picture and take it further. There will be user fees applicable to the services offline and online.
Rechtwijzer 2.0
Rechtwijzer 2.0 will handle different types of conflicts and is going to operate internationally. Target audiences of this project besides the international public, include legal experts, lawyers and judges who will have separate intake conversations with the clients on the Rechtwijzer platform and bring their perspective into one coherent online profile.
The Dutch Legal Aid Board has been the co-creator of this project. Together with HiiL, capable groups of lawyers, experts, mediators and legal advisors specialised in different aspects of law (e.g. divorce law and consumer protection law) have been selected and assigned to make this project work. Rechtwijzer 2.0 will be a platform to diagnose disputes, dialogue and negotiation on problems, offering third party mediation and coaching and finally judication. A prototype will be online by the end of September 2013 and the first actual version will be launched during the spring of 2014.
Professor Roger Smith has a summary of Rechtwijzer, its flow, its implementation, and its implementation. This summary is quite useful in talking through the history & potential of the site.
The Dutch Legal Aid Board has one of the most interesting legal websites of its kind in the world. It is known as the Rechtwijzer which is variously translated as ‘conflict resolution guide’ or ‘signpost to justice’. The best thing to do at this point is to get online; switch on google translator and work your way through it. This site was first launched in 2007; has had added functionality since; and was comprehensively reworked in 2012. The original site has been the subject of some academic research and the current version is being researched by the University of Twente but the results will not be available until 2014. Thus, a note of caution should be added at the beginning of any assessment. We do not yet know how the current site will be rated by those using it in practice. To an outside observer, and disregarding the clunkiness of the Google translation required to translate its content into English, frankly, it appears just stunning.
The current model covers consumer and relationship breakup in depth with ‘lite’ versions on employment, tenancy and administrative law issues. If you are inspired to check out the site with the Google translation, the relationship breakdown section is translated somewhat brusquely as ‘apart’. It is probably more idiomatic in the original Dutch. The way the site works is best shown by starting out on a ‘journey’, very consciously the way that the makers of the site saw its operation – a dynamic process. Each page provides a small number of questions which must be answered before moving on to the next. Let us test how it works with a mythical case. I am a 40 year old male in employment. I want to separate or divorce from my wife. We have two children in the early teens. We follow the following screens:
- the opening screen offers a choice between saying that things are not going well; my partner and I have decided to split; or we have already split but a new problem has occurred. In my example, we have decided to split up and I register accordingly. The wording of the option on screen is actually that we have decided to split up and need to arrange our affairs’ – signaling the process to come.
- I am prompted to give details on marital status; children; marriage contracts; ownership of any company.
- This is where it gets interesting. I have to rate my level of education attainment and that of my partner (we are assuming both graduates; I confirm we both have a paid job); then I am asked two questions ‘If you compare yourself with your partner do I have more or less skills to find a good solution?’ I answer ‘more’ – obviously . And ‘If you compare yourself with your partner do you have more or less people in the area on whom you can rely?’ Less – predictably. She is completely irrational.
- The next slide leads me to think about the options. For the first time, we encounter a block of text rather than short questions to elicit answers. The text explains that we have choices. In the English translation, it might be argued that these are not entirely put with balance – the options are between mediation and ‘messy divorce’. No doubt, the Dutch is slightly more nuanced. I then have to rate on a sliding scale how much I want a messy divorce or a ‘consultation separation’. I, of course, want the latter: I enter my assessment of my unreasonable partner who is all for the messiest divorce possible. The screens lead us on.
- The next screen asks if I have a good understanding of the implications of the divorce for my children, my partner, myself and in relation to finance. I say yes to all but the last. We are led on again.
- I am given the option to indicate if I have other worries. I indicate that there is talk of violence just to check that it will take me out of the mediation stream and it does: I get to a page which leads me to victim support and lawyer referral.
- And so it goes on. Somewhere around this point, your patience with Google Translate will break but if you stay with it – which will involve a lot of fiddling around returning to the site – you will get encouraged to mediate; to draw up an agreed parenting plan; and given access to a financial calculator.
Having given a flavour of the site, it is worth some reflection because it is different from any other legal site that I have found. The only thing that comes close would be the NHS Direct site in relation to medicine but that is integrally linked to a central telephone advice service absent in the Dutch project. Rechtwijzer was developed for the Dutch Legal Aid Board (and associated stakeholders such as the Bar) by a multi-disciplinary team in various institutes at Tilburg University. There is a also an advisory group composed of interested stakeholders such as judges, mediators and lawyers. Key guidelines for its development were:
- the site should identify and signpost the best dispute resolution assistance, given both the dispute itself and the parties to it;
- the approach is based upon the principles of ‘integrative negotiation’ ie draws users to getting to ‘yes’ and building up common ground rather than identifying difference;
- time and opportunity is deliberately given to encourage users to reflect upon their conflict;
- no legal advice is offered as such though information is given at strategic times both as to process and likely result.
The site has been established within the context of overall Dutch policy on the resolution of disputes. This is to encourage self-help and mediated settlement in preference to recourse to lawyers and the courts. As a result, some years ago, the Dutch Ministry of Justice wound up its Bureau voor Rechtshulp, effectively law centres, and replaced them with a nationwide network of juridische loketten or ‘law counters’ that offer information and self-help assistance rather than representation. In 2009, it also, in pursuance of the same aim, required parents who were splitting up to produce a divorce and parenting plan. In its turn, this approach exerts pressure on policy. Self-help and the operation of digital forms of resolution work better when judicial decisions are predictable; there are clear rules on such matters as maintenance; and minimal discretion. This can instantly raise the hackles of lawyers and judges with very clear ideas of the different interests of each party. However, the site works on clear principles behind its approach: it seeks:
- to improve communication;
- to encourage parties to explore and identify their interests if they are not clear about them;
- to identify creative options;
- to identify, in the jargon of this area of conflict resolution, the best alternative to a negotiated agreement, commonly referred to as BATNA, with the aim of aligning the BATNA as closely as possible to a settlement;
- to find objective criteria to assist the parties to make a decision on the way forward.
The Tilburg team behind the Rechtwijzer project have also worked on personal injuries. Their description of the ‘personal injuries claims express’ (PICE, pronounced in Dutch as Pike) provides another demonstration of the collaborative approach incorporated within the structure of a website:
‘The first innovation is to enhance collaboration between parties through a communication structure that stimulates dialogue rather than argument. Directing parties’ consultation towards a constructive dialogue probably adds to a problem-solving attitude, and leads to a positive negotiation atmosphere overall. The communication structure encourages parties to share interests while explaining their position to each other. For instance, in case of opposing interests, they are advised to make up a list of possible objective criteria that may help to reach an agreement in line with the a problem-solving or integrative approach to negotiation and conflict resolution … Concretely, PICE enables parties to start a dialogue about an issue in various sections by means of the “Dialogue Button”, which allows them to enter their view and invite the other party to respond … When parties consult on the amount of the damages, PICE provides arithmetic support and overview by means of a “Damages Summary section”. Parties can mark agreement and work arrangements, using the “Arrangement Button”. Differences of opinion are also noted, as well as clear agreements on how to resolve these issues. This helps to focus on possible solutions instead of points of contention. All communication regarding a particular case is mediated by the PICE system, which in its capacity of electronic file of the process retains all data entered. The parties, including the victim, can use it to monitor progress of the claim handling procedure. A neutral party who may be called upon in case of a dispute can also use it to review the case.’
A graphic illustration of how this works is that both parties to, for example, a car accident can work together to provide a composite statement of facts.
Returning to the Rechtwijzer, the designers of the site are clear that it:
does not offer the user advice on what single professional to contact. Rather it offers the users and overview of the things that need to be done, who may do this, and at what cost. With this information the user herself can choose which of the professionals is best suited for her own (personal, financial) situation.
This is sophisticated stuff. It facilitates the ‘unbundling’ of legal services in which a user may seek legal assistance with parts of a problem but retain ownership of its entirety rather than the usual model of passing it all over to a lawyer. In some matters, such as some consumer disputes, the information and goals elicited by proceeding through the site ends up with a letter to the other side setting out the dispute in a structured way and integrating an orientation to its solution:
The user sets a date by which she will contact the other or when she expects the other to contact her. She also makes clear what actions she will take if the dispute is not solved in this way. With this information (from the advice module) she affects the opponents [best alternative to a negotiated agreement], making it clear that serious alternatives are available.
Any conclusions on the effectiveness of the site have to be tentative until the research is in but the following emerged from discussion with those concerned with it at the Legal Aid Board and Tilburg University.
The initial reaction of lawyers is reported as hostility but, as time goes on, they are adapting and some direct their clients to the site in preparation for – or part of – taking instructions. Research on the first version identified that people liked to use it to organise themselves but they tended to use parts of it. In particular, at that time, the financial coverage was too difficult for many users. The team put some thought into elements such as reading age (decided to be school-leaver level) and to cutting back the text to the minimum (This is really noticeable if you compare with site with others). The content per page has been really pared back. Client surveys report high satisfaction ratings but, again, the full meaning of that awaits further research. It was hard to determine objectively how much usage was being made of the site but between the beginning of November and the beginning of March, 200 couples and 500 single people had begun the ‘journey’ through the package relating to the divorce and parenting plan (which can be accessed through the Rechtwijzer site or directly). Overall usage on the old site, prior to a 2012 revamp, was around 145,000 people in 2011. Plans have been drawn up to develop a ‘digital assistant’ whereby a user can effectively proceed to a ‘side Bar’ for an email exchange with an adviser – the identity of which is to be decided but might include or be the Juridisch loketten
So, what we can say in conclusion and in terms of questions that the project raises?
As to conclusions:
- This is a highly sophisticated site that, intuitively, you would think would be effective. It does seem the most impressive that I have seen.
- Like NHS Direct in England and Wales (another impressive provision that involves a website), the construction of the site has benefited from the input of communication professionals and reader feedback as well as legal experts. Indeed, the combination is probably essential and shows up the weakness of, say, existing English sites. This is, of course, dependent on funding that allows such inputs.
- The integral commitment of the site to integrative negotiation (ie biasing towards settlement) is philosphically acceptable (and, indeed, desirable) provided that sufficient exit routes are signposted eg where, in a matrimonial case, there is a threat of violence. There has, of course, to be great care in how this is done. We await the research to see whether the redirection of those suffering from domestic violence works as well as it appears it should.
- The establishment of the site maintains the government’s acceptance of its constitutional role in providing justice to all its citizens – something that is not apparent in the cuts being made to English and Welsh legal aid where those with disputes eg about matrimonial matters are being largely abandoned to their own devices.
- There is the basis of a model here which could surely be developed in other jurisdictions, using the Dutch work as a template.
- The idea and the practice look exciting. We should probably await the research expected to be published in 2014 to be sure of how it works in practice.
- The development of the site probably opens possibilities of savings on Dutch legal aid if its success can be established.
And the questions:
It looks good but does it work? Back to the issue of the research.
The Dutch Legal Aid Board spends about 15 per cent of its budget on family law. So, there is the possibility of financial savings in encouraging use of the site and the associated processes. But, first, would there be real savings? Second, will the board be forced to cut back on the site because of funding cuts – which may yet be the fate of NHS Direct? Three, having achieved any initial savings, what incentive would there be to continue develop the site further?
How will the site integrate with commercially funded services? The site will signpost users to mediators and lawyers for whom clients will have to pay. On the one hand, will they be willing to move away from instructing a lawyer in the conventional way throughout the process and, on the other, how well will the referral function of the sitye work? Will providers, as the Dutch Legal Aid Board hopes, cluster around the site offering services that dovetail with it?
Will the Dutch buy their government’s drive to make them more self-reliant and self-helping? Traditionally, those going through relationship breakdown, particularly the weaker party which tends to be the wives and women partners, have wanted face to face assistance. It may be that they find little solace in the website. At the moment, a lawyer has to review agreements relating to children and maintenance but, if this is removed as the Legal Aid Board wants, and in any event, will the site adequately protect the weaker side in relationship breakdown?
Is there any danger that potential clients overall will split on income grounds? The poor get second rate mediation and the rich first class lawyers?
Will the government and the judiciary play their part in simplifying the law to assist on-line dispute resolution and avoiding complexity?
I am on a design team, working on how to redesign the small claims mediation & family mediation (that now would occur offline, in a court house, in a room with a mediator and the parties) into an online experience.
My team interviewed a mediator who has expertise in these offline mediations — these are my notes & insights.
Green: possible failpoints, where a mediation could go wrong online.
Yellow: best practices she recommends.
Red Pink: insights into how mediations work & what the stakeholders want.
Bright Pink: miscellaneous comments.
Stay tuned — we are moving towards mocking up basic flows and interfaces for an online mediation experience…
