A game changer

This evaluation of the Rechtwijzer website appeared in Face to Face Legal Services and Their Alternatives: Global Lessons from the Digital Revolution by Roger Smith and Alan Paterson. The report was published by the Centre for Professional Legal Studies, Strathclyde University, Scotland

The Dutch Legal Aid Board has developed a legal advice site known as Rechtwijzer, variously translated as ‘conflict resolution guide’ or ‘signpost to justice’. The project, which initially cost €2.3m, is run by a joint committee with the support of a number of stakeholders, including the Bar. It sets a new standard for what can be delivered.

Rechtwijzer 1.0 was launched in 2007 and comprehensively reworked in 2012. Research on the current version, Rechtwijzer2.0, is being undertaken by the University of Twente. Results will be available in 2014. This will be an important study because it will indicate whether the provision is, in fact, as good as it looks. Thus, a note of caution should be sounded. We do not yet know how the current site will be rated by those using it in practice.

The Rechtwijzer has to be seen in its context. The Dutch have a relatively well-funded legal aid scheme. Expenditure was €440m in 2008. Services are delivered through private practitioners on a certificated basis and a national network of legal advice ‘counters’ staffed by paralegals. This is the Board’s own description of the Rechtwijzer:

There is an interactive online application called Rechtwijzer This is an easy way to obtain legal information. It helps users to find their way towards solving a conflict. The application, developed by the Legal Aid Board in close cooperation with the University of Tilburg, consists of a ‘dispute roadmap’ that, on the basis of a number of choices, guides users step by step along all the legal aspects of the conflict at hand. The software covers the fields of housing, labour, family, consumer and administrative law.

Apart from further development of this Dispute Roadmap, new applications will be added to the website too: the Divorce and Parenthood Plan and Mediation Online. These applications will soon be ready for use and are also meant to encourage users to solve legal conflicts themselves.

The Dispute Roadmap can be seen as a first help towards settling actual conflicts. The website of the Legal Services Counters, on the other hand, contains lots of documentation and is meant first and foremost to inform visitors on all sorts of legal matters. It is of a much more comprehensive nature than the Dispute Roadmap, which focuses on well-defined conflicts. That is why the Dispute Roadmap software sometimes refers visitors to one of the counters.

The current version (April 2013) of the Rechtwijzer covers consumer and relationship breakup in depth with ‘lite’ versions on employment, tenancy and administrative law issues. It is designed to take someone on a ‘journey’, a dynamic and iterative process in which a small number of questions refining the parameters of the problem must be answered on each page before moving on to the next.

To test the site, let us take the example of a 40 year old male in employment with two children in their early teens who wants to separate from, or divorce, his wife. He would be led through the system as follows:

  • the opening screen offers a choice between saying that things are not going well; or my partner and I have decided to split; or we have already split but a new problem has occurred. Assume the answer that you have decided to split up and register accordingly. The option on screen is carefully phrased. You certify that you have decided to split up and need to arrange your affairs – signalling the process to come.
  • You are now prompted to give details on marital status; children; marriage contracts; ownership of any company.
  • The following screen begins to get interesting. You have to rate your level of educational attainment and that of your partner (we are assuming both graduates, both with paid jobs for this example); then you are then asked two questions ‘If you compare yourself with your partner do I have more or less skills to find a good solution?’ You 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.
  • The next screen leads you 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 you have choices – you have to rate on a sliding scale how much you want a messy divorce or a ‘consultation separation’. You, of course, want the latter: you enter your assessment of your unreasonable partner who is all for the messiest divorce possible.
  • You are now asked if you have a good understanding of the implications of the divorce for your children, your partner, yourself and in relation to finance. You say yes to all but the last. You are led on again.
  • You are given the option to indicate if you have other worries. If you indicate that there is ‘talk’ of violence just to check what is offered, the system leads you out of the mediation stream: You get to a page which leads you to victim support and lawyer referral
  • If you stay with it, you will be encouraged to mediate; to draw up an agreed parenting plan; and given access to a financial calculator.

Rechtwijzer was developed by a multi-disciplinary team at Tilburg University. There is an advisory group composed of interested stakeholders such as judges, mediators and lawyers. The key guidelines formulated for its establishment were that:

  • 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, early intervention and mediated settlement in preference to recourse to lawyers and the courts. This had previously been reflected in the fact that, between 2003 and 2006, the Dutch Ministry of Justice wound up its Buros voor Rechtshulp, effectively law centres, and replaced them with its nationwide network ofjuridische loketten or ‘law counters’ that offer information and self-help assistance rather than representation. In 2009, the Ministry, 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 to clearly stated principles: 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; and 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) 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.

They set out their approach as follows:

Taking a bottom-up approach, TISCO members develop, integrate, and apply insights from negotiation theory, conflict research, dispute system design, (comparative) legal research, network theory, behavioural law, and law and economics in their research in order to connect and extend the body of knowledge on building, maintaining and (constructively) ending horizontal relationships in which people and businesses are involved.

Rechtwijzer’s designers are clear that the site does not offer advice on what professional to contact: it offers an overview of the things that need to be done; who may do this; and at what cost. With this information, users can choose which of the professionals is best suited for their own (personal, financial) situation. This is sophisticated. 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. In some matters, such as some consumer disputes, the information elicited by proceeding through the site ends with the suggestion of a letter to the other side setting out the dispute in a structured way and seeking its solution:

The application uses a series of questions to analyze the conflict situation, and then offers advice. The advice consists of a number of interventions that are needed to resolve the situation, linked to the people or organizations that are can provide this service. The advice is organized in such a way that the most simple solutions are most prominent, and also focuses on the things that the user can do by him- or herself to solve the conflict. One specific tool is provided to support people who are dealing with consumer issues. Signpost to Justice helps users to write a letter to the opponent in which they explain their situation. This letter performs several tasks; it notifies the opponent of the issue, it communicates the user’s interests, and it lets the user voice a number of creative solutions.

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 showed some hostility but, as time goes on, they are adapting. Some now 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 tended not to rely on it exclusively. 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 (now school-leaver level) and to cutting back the text. As a consequence, the content per page has been really pared back.

A small-scale survey of law students at the University of Amsterdam in 2013 produced mixed results. A majority liked the consumer friendliness and relevance of the package but a significant minority felt that the package’s answers were too general or oriented in a particular direction.

Client surveys on the other hand 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 2012 and the beginning of March 2013, 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 the 2012 revamp, was around 145,000 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 (the counters).

The commitment of the site to integrative negotiation (biasing towards settlement) would seem 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. The research should tell us whether the redirection of those suffering from domestic violence works as well as it appears it should. There is an issue to be logged about the potential effect – both good and bad – of a site which restructures a query and leads the questioner off in a direction, the consequences of which may not be transparent. This is a discussion to be had as the site develops. It will parallel similar debates that particularly occur in relation to the handling of matrimonial cases by such techniques as collaborative lawyering. The question is the balance achieved between a drive for settlement and the recognition of legal entitlement.

The site has been connected with the Board’s legal service counters so that the website can be supported by face to face services which exist throughout the Netherlands. This, to some extent, will assist in addressing the digital divide. To see how effectively, again we will need the University of Twente research. There remain enormous questions. Will the Dutch public accept their policymakers’ drive to make them more self-reliant and self-helping? Traditionally, those going through relationship breakdown, particularly women who tend to be the weaker party, have wanted the support of face to face assistance. It may be that they find as little solace in the website as did the single parent blogger in the DWP site quoted in the last chapter. At the moment, the safeguard exists of mandatory review by a lawyer of agreements relating to children and maintenance. However, the Board would like this removed. In those circumstances, 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 getting second rate mediation and the rich first class lawyers? Will the government and the judiciary play their part in simplifying the law to assist online dispute resolution and avoiding complexity?

Whatever the answers to these questions, however, this site shows clear signs of being a game changer and far in advance of anything else in the world in terms of its dynamic and client-centred approach.