Divorced From Reality

28 October 2016

By Sam Muller, CEO HiiL Innovating Justice

Gillian Hadfield just came out with a fabulous book: Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy. In it, she argues that the design machine we have for making rules that work for people in the world of today is broken. What it produces is of inferior quality: often out-dated, too complex, and it does not always solve the problem.

No wonder: the fast-moving, internationalized world of today with its technological developments and daily outpours of new, profound knowledge about our very being as humans is a very different one than the one Montesquieu and Jefferson lived in. Take the past 14 years: the first TomTom navigator in 2002, Skype and LinkedIn in 2003, Facebook in 2004, Twitter in 2006, the iPhone in 2007, AirBnB in 2008, WhatsApp and Uber in 2009, Bitcoin in 2009, the iPad 2010, blockchain technology in 2014, the invention of CRISPR/Cas9 with which we can manipulate DNA. We saw the emergence of complex global supply chains, cyber-crime, fintech, and the recognition that our carbon based economy must be transformed. These things have and will radically change the world. We have no clue what the next 14 years will bring.

This change will need to be supported by rules-regimes that work. Not fixing the design machine problem is having and will have very negative consequences for economic growth and social harmony, says Hadfield. And she has some innovative ideas to do so. Read the book.

What I want to talk about now is separation and divorce. Not only because it is a serious matter, but also because I have become involved in an experiment in innovative rulemaking around the justice procedures for separation that is at least one practical answer to Hadfield’s challenge.

Separation and divorce affects many people. It has a prevalence of around 5000 per one million inhabitants. They are difficult in and of themselves, but also cause many other problems: reduced health, loss of income, children doing worse at school, long-term psychological damage, and even violence and suicide. Most of the justice procedures that manage them now on offer are adversarial, which results in conflicts that are intensified. They start with complaints, claims and accusations that are quickly exaggerated or based on information that is one-sided. Win-lose dynamics dominate the dispute resolution arena. They are complicated. Lawyers are needed as a guide, which makes the costs hard to predict. People do not feel in control of their own process. So there are a lot of reasons to want to have the best possible procedure in place to deal with divorce.

So how do you design a better divorce procedure, using the best knowledge and the latest technology? The traditional way is law reform: a committee filled with mostly lawyers, legal drafting experts from ministries of justice, civil society consultations, advice from councils of state, parliamentary commissions, and adoption of a rule regime in parliament. This is the machine that Hadfield shows does not really produce what we need.

In the Netherlands they tried something new, borrowed from the innovation world: they implemented a right to challenge. A motion was adopted by the Dutch Parliament asking the ministry of justice to issue an innovation challenge on the topic of divorce. The motion asks the ministry to invite civil society to submit ideas that lead to a reduction of contentious divorces by 50%. Through such a ‘right to challenge’ anybody who has a better solution for the problem than the one the government has, is welcomed forward. Because a parliamentary motion backs the challenge it’s not a gimmick that the executive or government bureaucracy can easily pretend to take serious but in reality will shove aside. It’s an approach other parliaments should try out as well.

Then, the actual problem itself: As part of a diverse but determined coalition, HiiL has submitted a response to the divorce challenge. The online supported procedure takes a very different approach to court procedures: it empowers the partners to take control and design their own agreements, with the help of experts. It is aimed at building bridges and getting to solutions rather than the traditional adversarial model of claims and counterclaims. It includes a maintenance module, to keep the agreement up to date and functioning, even after the separation has been formalised. It is based on a sustainable funding model and, if it is successful, it is linked to the formal justice system, as one of the other routes citizens can take. A reduced version of it is running in British Colombia. We shall keep you updated how this challenge to the procedures on offer by the state will be responded to.

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This blog first appeared on slaw.ca, Canada’s online legal magazine.