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Presentation of the Dutch Legal Aid Board at the CEPEJ 22nd plenary meeting, on 5 December 2013

I have seen the future and it works - maybe and in Dutch

Roger Smith

The Dutch Legal Aid Board has one of the most interesting legal websites of its kind in the world. It is known as the Rechtwijzer1 which is variously translated as ‘conflict resolution guide’2 or ‘signpost to justice’3. 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 research4 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:
(1) 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.
(2) I am prompted to give details on marital status; children; marriage contracts; ownership of any company.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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:
(a) the site should identify and signpost the best dispute resolution assistance, given both the dispute itself and the parties to it;
(b) 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;
(c) time and opportunity is deliberately given to encourage users to reflect upon their conflict;
(d) no legal advice is offered as such though information is given at strategic times both as to process and likely result.5

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:
(a) to improve communication;
(b) to encourage parties to explore and identify their interests if they are not clear about them;
(c) to identify creative options;
(d) 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;
(e) to find objective criteria to assist the parties to make a decision on the way forward.6

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.’7
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.8 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:

1. This is a highly sophisticated site that, intuitively, you would think would be effective. It does seem the most impressive that I have seen.

2. 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.

3. 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.

4. 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.

5. There is the basis of a model here which could surely be developed in other jurisdictions, using the Dutch work as a template.

6. 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.

7. The development of the site probably opens possibilities of savings on Dutch legal aid if its success can be established.

And the questions:

1. It looks good but does it work? Back to the issue of the research.

2. 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?

3. 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?

4. 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?

5. 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?

6. Will the government and the judiciary play their part in simplifying the law to assist on-line dispute resolution and avoiding complexity?

1 www.Rechtwijzer.nl

2 eg J v Veenen Online integrative negotiation tools for the Dutch Council for Legal Aid source

3 http://www.hiil.org/project/signpost-to-justice-guidance-for-citizens-facing-justiciable-problems

4 eg Gramatikov, Utrecht?

5 van Veenen, see above

6 Van Veenen as above

7 C van Zeeland, R Leenes, J van Veenen Handling Personal lnjury Claims PICE

8 C van Zeeland, J van Veenen, I von Burg, L Combrink-Kuiters (check) 8 March 2013