After the Rechtwijzer Energizer

Roger Smith has announced the end of Rechtwijzer 2.0, or rather the partnership between HiiL, Modria and the Dutch Legal Aid Board which brought us a cheap, well-designed, online dispute resolution platform. It garnered particular attention and praise for its divorce and separation platform. The basic structure of the system (intake of clients through managed pathways, online negotiation and mediation followed by online adjudication) is common to online dispute resolution generally, and in particular proposals for the online court in this country. This is a crucial moment for online dispute resolution and the public interest.

For those not familiar with it, there is a neat description in the Law Society’s innovation report (which reminds us that a version of Rechtwijzer has been operating since 2007):

An advanced version of the original platform, Rechtwijzer 2.0 is an online-based dispute resolution platform that supports people throughout their justice journey; the first implementation was launched at end of 2014. Rechtwijzer 2.0 is the first ODR platform for difficult problems such as divorce and separation, landlord-tenant disputes and employment disputes. The platform allows people to manage the process and desired outcome in their own home, using their own words and at their own pace. This puts the user in control when working towards an effective solution that safeguards their interests.

Through the platform, individuals can learn about their legal options while receiving support for an interest-based dialogue between the people involved. When users need more than this, Rechtwijzer 2.0 provides mediation, adjudication, and a neutral review of all agreements. Couples pay €100 for access to Rechtwijzer, which starts by asking each partner for their age, income, education, and other information, then guides them through questions about their preferences. Couples with children, for example, are asked whether they are seeking sole or joint custody. The platform uses algorithms to find points of agreement, then proposes solutions. There’s a tool to calculate child support and software for drafting agreements. Couples can request a professional mediator for an additional €360 or, if talks break down, a binding decision by an adjudicator, that happens in about 5% of cases.

I had the privilege, for a while, of being on HiiLs research Rechtwijzer board. They are an imaginative, energetic, practical and determined group. Rechtwijzer was, to my mind, well-designed and thought through. It took the basic truths of collaborative negotiation and the elegance of design thinking to produce a package which has fired imaginations of policymakers and new legal service types worldwide. If the old ways of doing things were too expensive, then the new ways probably looked like Rechtwijzer.

Roger suggests that things got difficult for commercial reasons. Hiil/Modria could not sell the system abroad and raise revenue that way. The Dutch government, Roger suggests, backed off from investing when investment might have helped them scale up. One can see the logic here, but I also suspect there was a more fundamental problem. I think it is because of what we learn from this one sentence in the Law Society report:

[Rechtwijzer] handles about 700 divorces yearly.

There are about 65,000 divorces in the Netherlands annually. So that’s about 1% of all Dutch divorces (my own information suggests Rechtwijzer may have been handling slightly more than that but not enough to make a big difference). That’s a small part of the market and a small footprint on which to fund the development of the site and the involvement of professional mediators and adjudicators. The Dutch government would need to be persuaded that they were making savings on other bits of the legal aid scheme as a result. Perhaps more importantly, is also raises the important question, why so few users? Maybe the Dutch legal aid board did not invest enough in publicising and encouraging people into the scheme. Maybe, users do not trust an online system or see the value in a system which depends upon a degree of collaboration from both parties. Maybe, the alternatives are relatively appealing and all perceived as good value for money. Maybe they are good value for money, in relative terms. I speculate without information. That absence of information is important.

Given the amount of effort and energy that has been put into promoting Rechtwijzer, it is to be hoped that similar effort and energy will be put into the post-mortem. There must be user feedback and research available already. There must be a good deal of knowledge in the Dutch legal aid board and Hiil itself about what went wrong. Roger suggests that perhaps private providers can make a success of what a public-private partnership appears to have failed in (here’s an interesting example of what it might look like). I am not so confident. The numbers don’t look like they will stack up and there are significant public interests in implementing wide scale dispute resolution systems that require greater openness and accountability. I do hope that the public base of the public-private partnership here speaks up, and lets us have some learning from the failure. Online courts have a compulsory element that Rechtwijzer did not but still there will be important things that need to be learnt if online courts are to work. This would not be to Rechtwijzer’s shame, far from it – it will be consistent with Rechtwijzer’s innovatory zeal, fail fast, learn from doing, build it again, build something different or build it better.