Aktuell in der ZKM

Online mediation: a square peg in a round hole? - Experiences from the Netherlands portal www.rechtwijzer.nl (ZKM 2019, 128 ff.)

Mediation is a careful, highly personal process in which an impartial mediator assists the parties in solving their conflict. So, can mediation take place online? Or, even more unprecedented, can it be done by a system? Experiences from the Netherlands provide a sneak peek into the possible future of dispute resolution. It all comes down to what works for people.

A.   Access to justice in the Netherlands

B.   The next innovation by Rechtwijzer: online divorce

I.     Step one: choose a plan

II.    Step two: do the intake

III.   Step three: work together on fair arrangements

IV.   Step four: checking if everything is complete

V.    Step five: an expert review of the divorce and parenting plan

C.   Facts and user experiences

I.      Facts

II.     User experiences

D.   Outlook on the future of online mediation

A. Access to justice in the Netherlands

Dutch legal needs studies show what citizens do when experiencing justiciable problems, how they navigate the legal system when taking on their problem with legal means, and what outcomes they receive in their search for solutions. Data from the latest study show that 47 % of the respondents are able to solve the problem themselves without the involvement of a legal service provider; 37 % call in legal help, 8 % turn to another type of service provider and 8 % remain inactive.

The variety in problem-solving strategies indicates that a one-size-fits-all approach to justiciable problems no longer matches with the needs and interests of individuals. Some can handle a problem on their own, perhaps after looking for information or asking someone for advice. Those who remain inactive may think it is not worthwhile to take on the problem, could lack the financial means, or simply do not know what to do. The ones who turn to non-legal service providers may not recognise their problem as legal or deliberately want the help of a social worker, police agent or psychologist. The people who do call in help from a legal professional may do this because the problem is too complex, the other party too powerful, or because they lack the necessary problem-solving skills.

Dutch citizens in need of legal assistance can choose from a broad range of legal service providers. The services of attorneys are mandatory in only a small percentage of cases; in particular the disputes that require representation in district courts and appeal courts. Otherwise, lawyers, mediators and paralegals from legal expenses insurers, labour unions, social counsellors and the publically funded Legal Counters (het Juridisch loket) offer free and paid online, telephone and face-to-face information, advice and assistance in all kinds of problems, such as family conflicts, labour issues, consumer problems, rent problems, administrative disputes and other frequently occurring legal issues.

It is within this specific context that the Dutch Legal Aid Board, the independent public body responsible for the organisation and administration of public legal aid in civil, administrative, and penal matters, decided to expand the supply for citizens who opt for the do-it-yourself strategy, by developing the online portal www.rechtwijzer.nl in 2005. Main goal of the website was and still is to facilitate and empower these citizens by providing guided pathways for common legal problems, with objective, reliable and user-friendly information and advice on the law, rights and obligations, and ways to remedy difficult situations. According to international research, Rechtwijzer has been a game-changer in digital access to justice for people on low incomes and has set a standard for the development of digital guided pathways.

B. The next innovation by Rechtwijzer: online divorce

Taking the digital pathways on Rechtwijzer a few steps further, a prototype for a comprehensive divorce platform was developed in 2012/13 and launched in 2014. The design of the Rechtwijzer uit elkaar prototype and the lessons learned during the trial period form the basis for the current divorce platform https://uitelkaar.nl/, which is run by the social impact company Justice42.

How does uitelkaar.nl work? The present platform enables couples who want to separate amicably to draft a divorce and parenting plan in their own words, at their own pace, and in their own time, supported by experts when needed. The platform provides an easy to navigate, five-step process. Build-in mediation and communication techniques, such as the use of technology, visual design, objective criteria, nudging and dispute resolution services, are in place to help the couples through the divorce.

I. Step one: choose a plan

A couple visiting the website https://uitelkaar.nl is invited to select the divorce and parenting plan that fits their situation and needs best. For instance, couples without children can choose between a separation plan (for those who are not married) and a divorce plan. A separation/divorce plan including mediaton is available too. The costs for each plan are clear and fixed. Couples know upfront how much they will spend on the plan, and how much additional costs, e.g. for official excerpts and court fees, will be due. To give an idea, a divorce plan for a married couple with children costs € 900 in total; a divorce plan for a married couple with children plus mediation costs € 1.580.

II. Step two: do the intake

After selecting the appropriate plan, each (ex-)partner separately answers a number of intake questions. The intake varies from factual questions, such as number of under-aged children, their gender and day of birth, the spousal address, the day of marriage, to reflective questions, such as the circular question “What can you do to ensure a stable and happy future for your children„ and “What can your partner do to ensure a stable and happy future for your children„.

Next, the (ex-)partners are invited to give their first ideas on possible arrangements. These first ideas are not randomly chosen options. Experienced family lawyers have written down the common agreements that are inserted in divorce covenants. For instance, Rechtwijzer offers first ideas for partner alimony. The (ex-)partners each select the option that matches their needs for income after the divorce.

Another important part of the intake are the ‘red flag’ questions mapping possible complications, such as pre-nuptials, owning a business, international marriage or domestic violence. Especially power and knowledge imbalances must be signalled early on. In effect, the presence of some of the complications, especially domestic violence and international divorce, will lead to the advice to go to a family lawyer or mediator. The platform is not suited for these specific situations. (...)

Verlag Dr. Otto Schmidt vom 19.09.2019 09:25

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