Odr and The Courts

HiiL TREND REPORT IV
ODR and the Courts:

The promise of 100%
access to justice?
Online Dispute Resolution 2016
2 ODR and the Courts
Executive
piloting with procedures that are better suited to the
needs of their citizens. The main trend here is a focus
summary
on problem-solving and settlement instead of the
classical approach of deciding on claims and defences
through an adversarial debate. Specialisation is hap-
pening as well.
Courts are essential, but their procedures...
Courts are proud, ambitious and essential organisations. With the exception of a few European countries
They hold people to account and resolve conflicts, in (Switzerland, Austria, Norway) court systems have
accordance with the rule of law. The role of a judge is barely been able to scale up these innovations into
needed and generally appreciated. But courts are self- a model that is financially sustainable for the entire
critical about their services and uncertain about their population. Courts also invest heavily in making their
future. The procedures they have to work with are often current procedures more accessible through online
not fit for purpose. The process of legal claims, accusa- court forms, case-management and IT systems bring-
tions, defences and judgments leads to many procedural ing the court files online. This type of innovation does
side-issues, enhances conflicts instead of mitigating not seem to have a major positive impact on the user
them and is not always solving the underlying problem. experience, however.
Procedures do not guarantee that solutions arrive in
time and managing costs is difficult. ODR promises to improve user experience and effec-
tiveness of judges (for high volume problems)
Clients are staying away and governments are keeping Can online dispute resolution provide a breakthrough?
people out of courts in order to save costs. Many judges Or will it remain just another form of alternative dis-
are overburdened by casefiles that tend to grow in size pute resolution, much talked about as a great method
and in quite a few countries courts struggle financially. for managing conflict, but operating at the fringes of
Rules that are key to their operation, such as the rules the legal system? ODR is promising. This report illus-
of procedure, the rules for their finance and the rules trates how ODR can end the administrative frustra-
for their human resources, are outside their control. tions of the courts and disillusionment of their citizens.
It can help to standardise, simplify and humanise legal
Innovation happens, but does not scale and improve procedures, empowering people seeking access to jus-
end-user experience wholesale tice to negotiate, mediate and submit any unresolved
This report focuses on the procedures courts are of- issues to courts. The user experience can become that
fering to individual citizens. Here judges have to assist of a fully integrated justice journey.
and incentivise people to deal with the legal problems
of everyday life, such as separation, accidents, employ- Well designed ODR can support high quality, fair and
ment issues, neighbour problems, land problems, effective negotiated outcomes for the 50-70% of dis-
grievances against governments, being prosecuted or putants that now tend to settle cases in an often quick
victimisation of crime. Courts are experimenting and and dirty way to avoid further litigation. Courts can
Executive summary 3
fully focus on the most difficult cases. They can also Rules of procedure and financing have become
supervise the negotiation process in order to guaran- an obstacle to due and fair process
tee fairness and to prevent abuse of power. Experts Chapter 4 of this trend report then analyses the many
can assist courts with targeted interventions (from cal- challenges encountered by ODR providers and courts
culation of damages to therapy) and get access to all when they try to realise these benefits. Benefiting from
necessary information. Organising information online ODR, as well as the many innovations in problem-
can greatly facilitate all (legal) professionals working solving adjudication that can be supported by ODR,
on a case, streamlining their interventions into a more requires broad and sustained innovation. The biggest
seamless process, and avoiding misunderstandings. barrier to this are the current rules of procedure, that
describe steps, roles and tasks in detail, in conjunction
ODR can help to create financial sustainability with the rules for pricing interventions and financing
and scalability of courts and legal services. Innovation of the user
ODR can also solve the eternal dilemma of courts: if experience and the interventions by judges requires
they offer more effective and fair procedures they will redesigning all of this. Steps, roles, tasks and costing
be overburdened with cases for which they have no need to be different for personal injury claims, finan-
funds. The structured ODR process can be costed and cial services disputes or neighbour conflicts, which all
priced in such a way that most litigants can afford the require different types of fact-finding, communication
necessary fees. Only targeted subsidies will be needed. and facilitation.
Willingness to pay for services is likely to increase if Inadequate access to justice is often caused by a lack
the quality of process and outcomes improves: more of ownership for a good design of legal procedures, in-
adequate solutions, arriving just in time, less risk of cluding the financial parameters. ODR designs bring to
escalation, more voice and participation and more light that the current designs are inadequate. In time,
control over costs. This builds on the experience and governments offering inadequate court procedures
research results from countries as diverse as Austria may be seen as violating the fundamental rights of
and Zimbabwe that financing primarily through user citizens to obtain due process and a fair trial.
fees is the only known way to 100% access to justice.
A solution that has been tried is implementing new
ODR systems, designed on the basis of user needs procedural rules for one case category, such as small
for solutions, also enable cooperation between courts claims, which is currently proposed as a pilot area
from different jurisdictions. Sharing experiences and for ODR in England and Wales. But this restrains in-
costs of developments can greatly enhance the quality novation and better user experience to one area with
of adjudication services. The processes for treat- limited resources. Another option, sometimes suc-
ment of frequent and urgent justiciable problems can cessful, but not sustainable, is judges just ignoring
be brought to a level of international best practices, or bending the rules of procedure to accommodate
benefiting from a much broader range of trial and error innovative approaches.
experiences in different contexts.
Academics such as Orna Rabinovich have suggested Engaging and challenging the legal profession
that the legitimacy of procedures should be derived Implementation risks include privacy, security and
from a good design, focusing on user needs, and guar- operational IT failure. These are known risks for which
anteed by ongoing monitoring over the process and government agencies tend to have good practices in
its results. Following on this, the responsibility for the place. An issue that is often mentioned is that the
design of procedures can better be shifted to courts, legal profession may resist implementing innovative
operating under general rules reflecting principles procedures. The reality, however, is that existing ODR
of fair trial and working from terms of reference for platforms have no difficulty to engage lawyers who
resolution of specific problems. want to develop and expand their skills and services.
Most of the added value of ODR platforms is still
The market for effective procedures needs attention provided by humans. The platforms, providing higher
A second challenge is related to the “market” between quality services and giving clients more control, are
courts as buyers of ODR procedures and legal (tech) thus more likely to increase employment for lawyers
entrepreneurs or NGOs as sellers. Most court systems than to decrease it.
are local and serve a number of million citizens. Courts
tend to develop their IT systems in house, with the Professional rules, however, can be a barrier to
help of IT consultants, or have tendering procedures implementation. Whereas law firms would be perfectly
that prevent the necessary co-creation. This limits the placed to take the lead in ODR innovation, these rules
incentives for private parties to develop sophisticated prevent law firms to attract the necessary outside
ODR systems and partly explains why there are not yet investment and diversity of skills. At the same time,
many ODR platforms that succeeded in scaling up. professional rules may make it difficult for non-lawyers
to provide legal advice online or to use lawyers in new
However, the price of access to a sophisticated ODR- roles as neutrals, mediators or advisors to both parties
procedure for a particular problem category is now about the fairness of outcomes. In the near future,
dropping to a few 100.000s of Euros/Dollars. Still, ODR providers and lawyers seeking to provide innova-
ODR technology may have to be seen as a public good, tive services are increasingly likely to challenge these
developed with government money, as was the case with rules. Governments, acting in the interest of citizens,
many other technologies such as the internet. Another are likely to follow up on this.
option is forming an international consortium and pub-
lic/private cooperation model with shared ownership.
Executive summary 5
Four models of implementation The report, bringing together best practices from various
Chapter 5 briefly discusses four models of implemen- legal systems, illustrates how citizens, courts, ministries
tation. Full integration of ODR and court procedures of justice and the legal profession can all gain from
is seen as the preferred option, because it can create broad implementation of ODR and related procedural
a seamless experience for end-users and positions innovation. Courts can improve the services to citizens,
courts as supervisors of fair and effective solutions. regain their market share and avoid being overbur-
The most likely way to implement this is to start with dened. Government budgets for courts and legal aid
offering complainants a choice between the existing can be brought under control by a smart system of user
court procedure and the ODR supported procedure. fees for better services to citizens. The law firms working
This offers opportunities for learning, minimizes risks for individuals, now often struggling as a business, can
and creates choice for users. add more value to more people’s lives and serve more
people more effectively and efficiently. What is needed
Other options include: (2) ODR as a pre-trial stage, is a coordinated effort to open up the legal framework so
aimed at negotiated settlement, with adjudication as that new roles and procedural models can freely emerge
a separate service; (3) ODR as a procedure compet- and continuously improved.
ing with courts, with its own adjudication module; (4)
ODR as a market-place for existing (ADR and court)
procedures.
A breakthrough agreement between stakeholders

In the final chapter, the report develops the contours
of a breakthrough understanding between courts and
other stakeholders. What could each do and require, in
order to open the door for the next generation of user-
friendly court procedures, with evidence-based human
interventions by (legal) professionals? How can we com-
bine traditional and innovative court procedures where
necessary to sustainably achieve the goal of 100% ac-
cess to justice, currently promoted by court leaders and
the UN Sustainable Development Goal no. 16?
7
Table of contents
1. WE NEED BETTER COURT PROCEDURES 9
1.1 A day in court 10
1.2 Methodology 13
1.3 Earlier reports: further reading 14
2. UNDERSTANDING COURTS 17
2.1 Courts are essential and ambitious 18
2.2 Courts try to improve their procedures 18
2.3 Court innovation does not scale 26
2.4 Courts are conscientious and self-critical 27
3. THE PROMISE OF ODR 33
3.1 Helping clients to navigate procedures 34
3.2 Designing justice journeys from the user perspective 37
3.3 The promise of fairness 41
3.4 The promise of humanising the delivery of justice 50
3.5 The promise of financial sustainability and growth 53
3.6 The promise of partnership and scale 56
4. ISSUES TO BE RESOLVED 61
4.1 Legislative space and framework 62
4.2 Investing, selling and buying by independent courts 67
4.3 Risks of implementation 69
4.4 Engaging the legal profession 70
4.5 Can the challenges be overcome? 75
5. MODELS OF ODR AND COURT INTEGRATION 79
5.1 Full Integration 80
5.2 Pre-trial ODR 82
5.3 ODR as competitors to the courts 82
5.4 ODR platforms as a marketplace for legal and adjudication services 84
6. DISCUSSION:
CONTOURS OF AN ACCESS TO JUSTICE DEAL 87
6.1 Elements of an access to justice covenant 89
6.2 How stakeholders would benefit and what would they lose? 96
Acknowledgements 98
Contributors 100
Sponsors 104
Authors 105
1
WeThe
need
promise
better
courtof
procedures
ODR
“We have a
fundamental
global access to
justice problem.”
- Jin Ho Verdonschot
1.1 A day in court putting Dora and Carl at ease after all, making them
Dora and Carl are entering the courtroom. Carl notices even a bit grateful for finally getting her assistance in
the wooden furniture, a judge wearing a black gown, ending this trialling experience.
piles of paper on her slightly elevated desk. Dora is
trying hard to maintain the correct amount of eye This court scene could happen anywhere in the
contact: not avoiding Carl, no animosity, no denial of world. It could be about a separation case, but also
their enduring conflict. Both are fully prepared for a a neighbour conflict, a landlord-tenant problem or a
stressful confrontation about things that happened late evening fight outside a pub. When people appear
in the past and need to be put right for the future. in courts, they tend to respect judges and generally
The judge greets them, and then opens a brown- see them as helpful and fair. Judges try hard to find
ish file. Within it lie described three years of things solutions for the problems of people like Dora and
that went wrong between them, neatly translated in Carl. But the system within which they must operate
the language of lawyers: jurisdictional issues, claims, is not fit for purpose. A judge has to work from claims
reasons, counterclaims and defences. Dora tried to hire and defences, deciding who is right on each of the
a lawyer, but she was turned down after she told him points brought forward. About half of the time a judge
she wanted to do most of the work herself, because spends on a case is going to procedural issues, rather
she could only spend 500 dollars on assistance. On than to the core of the problem. There is little time to
a court website with 131 forms in the family justice talk about solutions that would be acceptable to both
section, a social worker helped her to identify the five parties. In most countries, there is only one oppor-
she needed. The key form had 33 boxes she could tick, tunity for the judge and the parties to meet. What is
specifying the claims she would like to make, and al- called “your day in court” is much more likely to be 45
lowing her to bring forward the reasons for her claims. minutes. During which so much needs to be achieved:
Before she filed the documents, she tried different telling your story, listening to each other, covering the
Google searches and also shopped around for help, legal points, the procedure, exploring possible solu-
just looking for assurance which boxes to tick and how tions, reaching a settlement (or at least some form of
to present her reasons. After seven calls, with various acceptance) and above all closure. That magic moment
helplines offering “free” legal aid, she got the impres- that you can let the conflict go and move forward with
sion she was on the right track and decided just to the feeling that everything needed for a better future
give it a try. has indeed been done.
The judge asks them questions about what happened It is amazing that this system still works at times. Per-
and about how they feel about settling their conflict. haps for the large part because humans act as humans
She then switches to some legal issues. Not all the do; by trying to do good and ignore the formalities. Too
boxes have been ticked correctly, so she will not be many legal rules, meant to protect rights, have turned
able to decide on some issues. She carefully explains into major bureaucratic barriers to reaching fair solu-
how the rules work and what the consequences of tions. The procedures are so complicated, that both the
a possible decision will be. She is a good listener, judge and the parties tend to rely on lawyers to navi-
We need better court procedures 11
gate the system. Research shows that parties highly

appreciate lawyers as personal advisers, but do not see
going to lawyers and judges as a good track towards
solving a problem.1 Users of courts watch their lawyers
spend most of their time translating normal problems
between people into legal language, moving forward
procedures, researching unclear laws and communicat-
ing with judges through 20th century channels.
Legal professionals have developed scores of alterna-

tive practices and creative new versions of procedures,
replacing trials with summary judgments and imposed
decisions with mediated settlements. Almost no judge,
lawyer or government website will wholeheartedly
recommend citizens to take their case to court. The
procedure at courts tends to turn disagreements into In England and Wales, courts are planning to invest
a positional battle, enhancing conflict rather than £700 million in bringing their procedures online. Led
contributing to solutions. This adversarial procedure by countries such as Singapore, Austria and Estonia,
may still be a superior method for fact-finding in many other court systems are following a path towards
murder cases or large scale product liability matters. It e-filing and online case management systems. Essen-
certainly is a costly one. The adversarial procedure is tially, these systems allow courts to become paperless.
still the official religion, but most lawyers and judges All people working on a case will have access to the
do not regularly attend church anymore. same files and documents. Communication will be done
by e-mail, instant messaging and videoconferencing.
Judiciaries face a major challenge in developing bet- Standardised building blocks for claims, defences and
ter, more effective procedures. Leading justices from judgments will be one click away. APIs will allow for the
the UK, Canada and the US have called for reform of systems of courts to communicate with the ones of law
procedures that are not designed from the perspective firms and prosecution services.
of citizens, and support a move towards 100% access
to justice. The UN Sustainable Development Goal no.16
requires “equal access to justice for all”. For this, the
world is now primarily looking to online court systems
and online dispute resolution in particular.
1
Voert, M. T., & Haarhuis, C. K. (2014). Geschilbeslechtingsdelta 2014.
But there is also talk of online dispute resolution. These then, are some incredible claims. The report,
Although this is a small industry, this is no small talk. written by a committee chaired by Richard Susskind,
One leading report2 says turning to online dispute indicates that we are well within reach of a legal uto-
resolution will enable courts to deliver justice that is all pia, and that the means to get there is ODR. Should
of the following: even a fraction of these claims come to bear (and take
some billions of investment) they would be worth it.
• affordable - for all citizens, What other manifestly possible legal innovation could
regardless of their means; promise affordable, accessible and appropriate court
• accessible - especially for citizens with physical processes? Indeed court processes where the layman
disabilities, for whom attendance in court is is equally as qualified to help themselves (and on an
difficult if not impossible; equal footing) as a trained lawyer. And let us be clear,
• intelligible - to the non-lawyer, so that citizens these benefits are not simply for those wishing to
can feel comfortable in representing themselves access justice. They are also ostensibly for the courts,
and will be at no disadvantage in doing so; judges and governments regulating that justice. Court
• appropriate - for the Internet generation and for processes that are more speedy, proportionate and
an increasingly online society in which so much avoidable would require less subsidies and relieve
activity is conducted electronically; overburdened systems.
• speedy – so that the period of uncertainty
of an unresolved problem is minimized; This then, is no pipe dream and the bill for such an
• consistent – providing some degree of undertaking does not need to break the bank. The
predictability in its decisions; average annual spending on IT for courts in 47 member
• trustworthy – a forum in whose honesty and states of the Council of Europe is just 3% of court
reliability users can have confidence; budgets totalling €33 billion.3 Access to online dispute
• focused – so that judges are called upon to resolution platforms for a particular case type such as
resolve disputes that genuinely require their separation or employment disputes can be obtained for
experience and knowledge; a few 100,000s and a modest fee per case handled on
• avoidable – with alternative services in place, the platform. As we will see, huge economies of scale
so that involving a judge is a last resort; are possible if court systems cooperate between juris-
• proportionate – which means that the costs dictions. A few years of slightly increasing this 1 billion
of pursuing a claim are sensible by reference budget would easily do the job and would still keep the
to the amount at issue; courts far away of 6% of revenues banks are spending
on IT. An attainable goal, with minimal investment, in
return for this incredible list of benefits.
2
Susskind, R., Prof. (2016, February). Online Dispute Resolution for Law
Value Civil Claims.
3
European judicial systems – Edition 2014 (2012 data): Efficiency and
quality of justice” (CEPEJ).
So why are courts not turning to online dispute resolu- that the pioneers we interviewed have encountered.
tion wholesale? Why are companies offering online Chapter 5 discusses four models of introducing ODR
dispute resolution services not as well-known as systems and their implications. In Chapter 6, we will
AirBNB, Tesla or Tinder? conclude by arguing that innovation of court proce-
dures requires a major change in the way courts are
Resolving governed and financed by ministries of justice and

parliaments. We sketch the terms of a 100% access
differences to justice deal between the major stakeholders that

would benefit all.
between people This report is based on desk research and interviews with
effectively, leading leading experts in online dispute resolution and in-

novation within courts. Insights shared at the 2016 ODR
to peace and conference in The Hague are integrated in the report.
prosperity, is The organising principle for this report is: how can we
perhaps the move towards (ODR) procedures that work for people
and for courts? In our view, procedures work better for
ultimate communi- people if they are more fair to both parties and lead
to more effective results for them. This is a matter of
cation technology. increasing procedural justice, outcome justice and

lowering costs (less monetary costs, time spent and
emotional costs). Procedures that work for courts
So what stops ministries and parliaments from invest- are procedures that benefit people, strengthen the
ing in dispute resolution technology in the same way position of a court as guardian of the rule of law, make
as they invested in the internet, the smartphone or the professional life more appealing for judges, and are
GPS system? sustainable. Sustainability for courts, but also for the
state as the provider of resources for courts.
1.2 Methodology
This report aims to answer these questions. In This report is not the result of a formal research project,
Chapter 2, we look at courts. What makes them stick or a consultancy analysis, but a collection of insights and
to their current procedures? Is it perhaps the way best practices. The process has been as follows:
they are organised that makes it difficult to reap • In January 2016, a concept note for the report and
the benefits of ODR? In Chapter 3 we test the claim the ODR 2016 conference was shared with 15
that online dispute resolution can be the answer to experts, who were then interviewed by telephone.
the problems of courts. Chapter 4 zooms in on the • Literature research.
practical difficulties of implementing ODR systems • February 2016: sharing of a first outline of the
report with participants to the ODR 2016 • Two PhD thesis have been published recently that
conference, asking for feedback and comments. provide a thorough analysis of ODR from the per
• Integrating experiences from HiiL experts with spective of the French and the German legal
ODR and procedure innovation experience. systems (Zissis Lekkas, Disputes in the Digital
• First week of May 2016: draft report sent to era, The evolution of dispute resolution and the
participants, speakers and workshop leaders. model ODR system, 2015; Nadine Schüttel,
• 24 and 25 May: ODR 2016 conference at the Streitbeilegung im Internet - Zukunft oder Irrweg?
Peace Palace in The Hague. Experts enriched 2014).
the draft of the report with best practices and a • The National Center for Technology and Dispute
better understanding of possible ways forward. Resolution supports the website odr.info with
• Final version published in June 2016. regular blogposts on developments, a list of ODR-
• The report will be presented to chief justices and providers and much more.
ministers of justice of countries considering ODR • The Civil Justice Council published a high profile
in the optimisation of their courts. report on ODR and courts. The website also
contains commentaries, interviews and supporting
1.3 Earlier reports: further reading papers.
This report builds on excellent earlier reports and • The International Journal of Online Dispute
publications about the potential of ODR. The following Resolution.
reports are recommended as further reading: • Colin Rule and Indu Sen wrote an interesting
• The Legal Education Foundation commissioned article about the use of ODR in procedures
a report “Digital Delivery of Legal Services to involving ombudsmen.
People on Low Incomes 4 “authored by Roger Smith. • HiiL trend reports Towards Basic Justice Care
It is updated regularly, so it is an excellent source of for Everyone, 2012 and Trialogue, Releasing
information on new developments. The project the Value of Courts, 2014 explore the scaling
website also has working papers on subtopics. up of legal services for individuals and show
• Mohamed S. Abdel Wahab, Ethan Katsh and how courts can escape from a low access to
Daniel Rainey (eds.), Online dispute resolution: justice equilibrium.
theory and practice, 2012 provides an overview
of the field.
4
Smith, R. (2015). Digital Delivery of Legal Services to People on Low
Incomes. Retrieved from https://www.thelegaleducationfoundation.org/
digital/digital-report
2
Understanding
courts
“There are barriers

between courts and
the rest of the world”
- Dory Reiling
2.1 Courts are essential and ambitious A dispute or an alleged crime can be brought before
In our 2014 trend report, Trialogue, ‘Releasing the a court. The court will hear both parties and then give
value of courts5’, we argued that courts are here to a judgment, applying the law. Knowing that this proce-
stay. A third party, public or private, is necessary dure is an option makes people observe the law. Know-
for resolving the more difficult conflicts and dealing ing that the other party may initiate a court procedure,
with crimes. Courts can be organised in a highly is an incentive to settle disputes in a fair way.
formal way in sophisticated organisations, or be very
informal gatherings of village elders. No country, no This simple format can be used for a broad variety of
city, no community of reasonable size can do without conflicts and every type of undesirable conduct can
these institutions. Courts can create procedures be turned into a court case. So courts are nowadays
and make decisions to which all parties have strong dealing with the full complexity of a global society:
incentives to submit to. They also provide a check on from crimes against humanity to drug abuse; from
governmental power and thus help give government Lehman Brothers bankruptcy to a dispute between
actions legitimacy. Courts act as symbols, provid- landlord and tenant; from traffic tickets to permits
ing rituals which aim to ‘do justice’ and, through for a nuclear power plant. They handle class actions
their decisions, they further develop customs, laws involving millions of claimants, hear hate speech cases
and regulations. Finally, courts deliver highly valued against politicians and talk to boys who do not turn up
goods such as recognition, providing a voice, respect, to school. By and large this has been a huge success
fairness, financial security and proportionate retribu- story, where courts have been able to contain violence
tion. They contribute to finding peace of mind and to and to contribute to stability and predictability in
sustainable relationships. relationships between people.
2.2 Courts try to improve their

procedures
Offering citizens Court procedures have their weaknesses, however.
a procedure With the exception of a few specialised courts, court

procedures tend to be seen as slow, bureaucratic,
leading to a fair intimidating, difficult to understand and not always

effective at solving the core issues in a dispute. Court
outcome is the core procedures tend to look back to what happened in the
past, instead of remedying harm done and enabling
business of courts. people to go on with their lives.
5
HiiL Innovating Justice Trend Report: Trialogue - Releasing the value of
courts (pp. 1-80, Tech. No. 1). (2013).
UNDERSTANDING COURTS 19
One broken relationship may have to be split up in a In some countries, courts are beginning to lose their
number of cases before different courts in order to be market share (See textbox below). Law firms also see
resolved. Citizens in the EU countries tend to have a that revenues from litigation are no longer growing.8
fairly positive view of the independence of their courts
and judges, but only very few people see court pro- Like most independent professionals in the public sec-
ceedings as straightforward, and many people loathe tor, judges are wary of bureaucracy and strive to make a
the cost and length of proceedings.6 meaningful contribution to people’s lives. They are aim-
ing to resolve problems such as the impact of divorce on
Court procedures can hardly be used without a lawyer children or to break cycles of substance abuse, mental
as an intermediary, which adds to the costs. These costs health issues and lower recidivism rates. This comes on
can become uncontrollable if the procedures enable top of their constitutional duty to render decisions which
motions, extra phases and appeals, in which lawyers are legally sound and based on facts established beyond
paid by the hour continue to create extra work for each a reasonable level of doubt. Letting people participate,
other. In order to guarantee access to justice for all, legal settle or at least feel an “ownership” of the outcomes
aid has to be subsidised on a scale that is not affordable achieved, has become part of judicial ethics.
for most governments.7 So, besides having to pay for
judges, court houses and the supporting organisation, 6
Flash Eurobarometer: Justice in the EU (pp. 1-146, Rep. No. 385). (2013).
7
Abel, L. (2013). Designing Access: Using Institutional Design to Improve
governments now have another budgetary incentive to Decision Making About the Distribution of Free Civil Legal Aid. Harvard
restrict access to courts. Law & Policy Review, 7, 1-22.
8
Report on the State of the Legal Market (Vol. 1, pp. 1-18, Tech.). (2015).
The civil and commercial courts are in charge of disputers such as those concerning
contracts or insolvency proceedings.
From what you know, how would you rate the justice system in (OUR COUNTRY) when dealing with civil and commer-
cial affairs on each of the following aspects? Would you say it is very good, fairly good, fairly bad of very bad?
Independance of courts and judges 10% 44% 23% 9% 14%
Fairness of judgements 5% 43% 27% 10% 15%
Use of new technologies 8% 39% 21% 7% 25%
Execution of judgements 5% 39% 29% 10% 17%
Easily understood judicial decisions 5% 38% 32% 9% 15%
Straightforward proceedings 4% 38% 30% 9% 19%
Cost of proceedings 2% 24% 32% 16% 26%
Length of proceedings 2% 19% 40% 25% 14%
Very good Fairly good Fairly bad Very bad Don’t know
Weaknesses of civil court procedures was better geared towards establishing a reason-
(as listed in Civil Courts Structure Review: able amount of settlement pay (severance).
Interim Report by Lord Justice Briggs,
Judiciary of England and Wales, 2015): Personal injury cases take years to settle and move
slowly through the court system. Medical malpractice
1. Courts designed by Lawyers for Lawyers claims processing is so adversarial and slow, that
2. Disproportionate Expense and Risk attributable they are a recurring item in consumer programs at
to Legal Representation prime time television. The Dutch insurance com-
3. Litigants in Person at Grave Disadvantage panies have sold millions of life insurance policies
in the Civil Courts without sufficiently informing their clients of costs
4. Work Overload and Delay and risks. The class actions and individual claims
5. Operational Management and Judicial Training arising out of this are not yet near final settlement,
6. Managing the Civil Workload and Raising the moving up and down through the layers of the court
Status of Civil Justice system. There is little attempt by the judiciary to
7. Paper work and administrative tasks macro-manage this process.
8. Lack of statistics and data
9. Enforcement of judgements and Orders For neighbour problems, a well liked television show
features a judge settling and deciding claims quickly
and fairly in a completely understandable way. The
The court system at a glance reality of having to deal with simple neighbour dis-
putes is that people have to go through a complicat-
The Dutch trust their courts and judges. Compared ed civil procedure with lawyers that may take years.
to citizens of other EU countries, the largest major- Mediation in neighbour disputes exists, but does not
ity of people in the Netherlands (82%) sees courts always work, and then there is no obvious next step
and judges as independent. Procedures are not al- towards a court decision if it fails.
ways appreciated, though. Only 39% of the Dutch
population has a favourable view of the straight- A day in the life of a criminal court judge consists of
forwardness of (civil) procedures, which is a lower talking with people having committed minor crimes.
rating than 19 other EU countries.9 Users rate the Many witnesses and reports seem to be missing during
trajectories for access to justice in separation cases the court hearing. The judge goes through the rituals
with 2.81 on a 1 to 5 point scale, on average across with lawyers. Years of prison sentences and alternative
ten dimensions of access to justice.10 Employment
procedures at courts performed better, but this
system has recently changed so more appeals are 9
Flash Eurobarometer: Justice in the EU (pp. 1-146, Rep. No. 385). (2013).
now possible. Reports say that the previous system 10
Barendrecht, M., Prof., Piest, J., & Gramatikov, M., Dr. (n.d.). The justice
of separation procedures (pp. 1-25, Rep.).
sanctions are dispensed in a single afternoon. The Dutch judges are not happy either. They have is-
impact of this on the lives of victims and perpetrators is sued several manifestos complaining about their
never reported back to the judge, however. Feedback workload and the way they are managed. At the
and learning in this system are limited. same time, they see the number of civil cases drop
and every few years the government diverts a big
The law regarding administrative procedures to chunk of cases away from the courts: violations of
be used against government decisions is rather traffic regulation to municipalities; minor crimes to
complicated. The initial phase of an informal review the prosecution services; employment termination
of government decisions, with good opportunities issues and migration cases to government agencies.
for mediating and achieving settlements, has turned Reports and calls for reform of civil and criminal
into a rather formal procedure before a committee procedure court procedures get little follow up.
with mostly lawyers, that is then followed by two
rounds of appeals before courts who tend to have The Dutch council for the judiciary has responded with
a legalistic approach as well. Ambitious pilots to a huge digitization program, bringing every document
change this pattern, and integrate settlement in in one case file and enabling online communication
the process, have difficulties to scale up beyond the between the participants. Leading judges see this
court in Utrecht where the approach was invented. as “a first step” into the right direction, but there is
no clear idea yet what the next steps will be and how
High profile civil or criminal cases eat up vast re- these will solve the systemic problems.
sources. Procedures become every more complicated
because of overlapping rules coming from all levels What is the impact of this on Dutch society? A recent
of government including the one in Brussels and survey by the Ministry of Justice12 showed that less
the international treaties on human rights. Smart, people experienced justiciable problems over the past
well resourced lawyers continuously invent new 5 years. 67% reported 1 or more of them in 2003,
procedural issues, which take years to be settled by 61% in 2009, and only 57% in 2014. Is this perhaps
the Hoge Raad (the Dutch supreme court). Ever more a triumph of the legal systems capabilities to prevent
documents are uploaded into court filing systems by conflict in the first place? In a way. The decrease in
the police, the prosecution and company lawyers. justiciable problems is mostly concentrated at the
Briefs filed by lawyers, intended to summarize the consumer end of our existence. A possible cause of
case and make it more manageable, have exploded in this is that product quality and complaint handling at
length over the past decades.11 companies has improved. Perhaps deterrence by legal
sanctions contributed as well.
11
File size growth has been quantfied in research by Sjerp van der Ploeg
& Jena de Wit, Ontwikkeling zaakzwaarte 2008-2014, Raad voor de
Rechtspraak (2015).
12
Voert, M. T., & Haarhuis, C. K. (2014). Geschilbeslechtingsdelta 2014.
Stories that the social fabric for coping with disputes Is the system underfunded? Not evidently. For a
is collapsing find some corroboration in the data. lower number of problems, the legal aid budget and
There is a clear decrease of use of unions, police, court budgets stayed flat. Legal aid spending on civil
social workers and consumer organizations for re- and administrative justice was similar in 2009 and
solving disputes. Legal professionals are taking over. 2014 (€190 million, with a higher proportion paid by
More worryingly, the proportion of problems resolved user contributions: from €30 to 50 million).
by agreement dropped from 53% to 42% between
2009 and 2014. This may partly be the effect of a There is no indication at all that the Dutch court sys-
different mix of problems with less consumer issues. tem is mismanaged. Capable, trustworthy people are
But it is a strange outcome, as you would expect the doing what is expected of them. A better hypothesis
legal system and its professionals to become gradu- seems to be that it is hard to make the court system
ally better at what they do. work in the current institutional setting.
That this is not necessarily true in the Dutch legal

system, is also confirmed by the number of people The Judicial Branch of California has 22
who dropped out of the dispute resolution process headings for innovation programs (see picture). Each
on the way. The proportion of disputes not resolved heading contains several creative programs, usually
increased from 34% to 42%. A considerable share offered in one county, or in one court. Examples
of problems (5%) still exists after 4 or 5 years. There of programs are a Loan Modification Settlement
is also an increase in problem owners remaining pas- Conference at the Santa Clara Superior Court, a Civil
sive, doing nothing about the problem (from 6% to Discovery Facilitator Program at the Sonoma Superior
8% over the past 5 years). Court and a Delinquency Caseflow Management
Process Improvement at the Orange Superior Court.
Courts are slowly losing market share. The number
of disputes in which they intervened dropped from
6% in 2003, to 5% in 2009 to 4% in 2014. It is
not mediation where these cases go to. The share
of problems where a mediator was used fluctuates:
4% in 2003, 3% in 2009 and 5% in 2014. The
non-court third parties (ombudsmen, specialized
commissions, government agencies) see an increase
in the use of their procedures (from 6%, to 9% to
11% in same period). This does not lead to a higher
resolution rate, however.
Victims and suspects are entitled to procedural justice,

which is an ambitious but essential promise. This means
ADR Restraining
a major shift in court activities. Courts have always
Orders focused the quality of decisions. Judgments have always
been their main output. Settlement is now seen as an
Admin Civil
even more valuable outcome. Judges send people to
mediators, hold settlement conferences, oversee plea-
Community Small Claims
bargaining, supervise financial reorganisation and are
Outreach available for a quick decision in order to break a dead-
lock in negotiations. Their attention has also shifted to
Collaborative Court Ordered
Justice Debt organising the process and case-management.
Family Law Tribal-State Ambitious individual judges and entrepreneurial courts

are very active in improving procedures. The world of
courts is full of pilots. The California courts alone have
Criminal Jury
dozens of innovation programs on their website, see box.
In the US, a movement has developed around problem
Juvenile Unlawful solving courts. These offer specialised processes for
Delinquency Detainer drug crime, domestic violence, juvenile crime, sex offence
cases and criminal behaviour associated with mental
Justice Partners Juvenile
Collaboration Dependancy health problems. Based on an individualised diagnosis,
developed in cooperation with the offender, offenders
Probate Technology are helped with treatment, but also held accountable
Digital Court and have to comply with treatment. Judges supervise
the process, which aims to mobilise legal officials, social
Language Records
service providers, victim groups and schools. The com-
munity is also engaged. It is also key that outcomes are
Self-Help Traffic analysed for cost versus benefit, and to provide continu-
ous improvement of the process. Problems solving courts
are supported by a non-profit organisation in New York,
the Centre for Court Innovation.
In the space of civil justice, courts have attempted to

integrate mediation in their procedures, and other forms
of alternative dispute resolution as well. Since 2002,
Germany has allowed the provinces (Länder) to make
a settlement procedure mandatory before certain civil
court cases can be started. The process takes place be- The Swiss fully integrated a settlement procedure in their
fore a certified “Gütesstelle” and can only be mandatory civil justice system. It is a mandatory process, starting
for small claims, neighbour disputes and discrimination with an informal application to a settlement-authority.
cases.13 The court has to attempt settlement as well, un- The procedure is very user-friendly. The plaintiff simply
less there is no clear prospect of success. To this end the has to mention what the plaintiff wants to get from the
court should explore the facts and the dispute with the other party and what the conflict is about. The cantons
parties during a settlement conference that precedes determine how this settlement authority is organized.
the court hearing. The court can also refer the dispute to Of the 26 cantons, 11 opted for lay judges elected by the
a settlement-judge, who can use all methods of conflict population. So Switzerland has 600 justices of the peace
resolution including mediation.14 for a population of 8 million. Then 10 cantons opted for
panels of (mostly) jurists sharing facilities with the courts
South Africa is one of many jurisdictions with manda- and 5 for judges or clerks fully integrated in the courts.
tory mediation in cases involving children. The media- The settlement authority invites the other party and then
tion takes place in the form of an investigation by a talks with them during an informal hearing. Settlement
family advocate or another mediator. Courts strongly rates of up to 70% are reported.17
push mediation in other disputes between ex-part-
ners. South African employment disputes go through a The justice of the peace model also exists in Belgium
mandatory mediation process of 30 days before being and a number of Latin American countries. It has a very
referred to arbitration.15 informal process by a judge or panel from the community
aimed at diagnosing and settling the dispute. The Facil-
Judicial mediation is also offered in Canada, Australia, itadores Judiciales system developed by the Organiza-
China and in the Nordic countries. The Norwegian model tion of American States originates from Nicaragua and
is well developed. It obliges the parties to exchange is now implemented in 8 countries. Here the facilitator is
information and to attempt settlement before filing at elected by the community and positioned as an assistant
court. In Norway, judicial mediation is one option and of the local court. The judge supervises ‘his’ facilitators,
applied frequently and successfully. There are laws who have the power to mediate, to serve documents and
restricting this, however. The mediating judge cannot to help people to bring a case to court if needed.
speak to the parties separately, make proposals or give
advice. If the mediation fails, the mediating judge can- 13
Einführungsgesetz ZPO. (2016, May 1).
14
Zivilprozessordnung - Gütliche Streitbeilegung, Güteverhandlung,
not be on the decision making panel, unless both parties Vergleich 278. (2016, May 1).
agree to this. The model is used creatively and with 15
Maclons, W. (2014). Mandatory Court Based Mediation as an Alternative
Dispute Resolution Process in the South African Civil Justice System
openness to further innovation, however. Family judges (Unpublished master’s thesis, 26 November 2014). University of the
can do the mediation together with a psychologist. She Western Cape.
16
Mota, C. E., & Marquis, L. (n.d.). New developments in civil and
is positioned as an expert, who is allowed to speak to commercial mediation: Global comparative perspectives (1st ed., Vol. 6).
each party separately and may also talk to the children.16 Springer International Publishing.
17
Schwenkel, C., (2014). Confidence in Alternative Dispute Resolution:
Experience from Switzerland. International Journal for Court
Administration. 6(1), pp.37–53.
Counselling and parenting courses Courts in Uganda

in British Columbia
Almost nine in ten Ugandans reported justiciable
In British Columbia, Canada, parents who initiate problems in the past four years. Land problems,
divorce/separation proceedings in Rule 21 registries mostly with neighbours and family members,
of the Provincial Court (17 out of 44 court registries are most prevalent, followed by crime and family
in the province) are obliged to attend a mandatory problems. 38% of problem owners do not take any
3-hour Parenting After Separation course. The course action. Of those taking action, 46% used the local
explains the effects of separation on parents and country court, which has informal procedures aimed
their children. Another four Provincial Court registries at reconciliation and dispute resolution. Only 5% of
(Rule 5 registries) require both of the spouses to meet problems went to the formal courts, which is a similar
a Family Justice Counsellor before the commence- rate as found in high income countries. Across seven
ment of court proceedings. Hence, almost half of the dimensions of procedural and substantive justice,
provincial courts in BC have developed out-of-court both types of courts achieve rather similar ratings.
procedures to facilitate the smoother dissolution Local council courts are more accessible (lower costs,
of families, increase informed decision making and, less time to be spent) but appearing in these courts
whenever possible, decrease the contentiousness of is more stressful for the average user.
subsequent court proceedings.
Internet penetration in March 2015 was 32% and con-
tinues to grow., Uganda was one of first African coun-
tries to be connected. The internet is not yet used for
legal information. However, people tend to use their
social network for this, go to the local council court or
to the police .(Justice needs in Uganda 2016, Legal
problems in daily life, HiiL Innovating Justice 2016).
A more general long term trend is that of specialised jurisdictions. Moreover, many of the new procedures
courts or specialised procedures for certain case types. before ombudsmen and tribunals tend to develop the
Specialised courts can be more efficient and are gen- same problems as courts: formalisation, the need to
erally appreciated. The table below shows for which use lawyers, high costs and delays. A very thorough
topics specialised court procedures exist in one or investigation of the extensive tribunal system in Aus-
more jurisdictions. This is a slow development though, tralia calls this process “creeping legalism”.18
in which countries may add one or a few specialised
courts per decade. Although settlement is now seen as the core business
of courts, few courts have fully mastered the integra-
2.3 Court innovation does not scale tion of settlement processes in their procedures.
Thus, innovation in court procedures is happening Alternative dispute resolution is much hyped. But
everywhere. The overall experience of going to court mediation, it’s most prominent form, still only attracts
has not changed much, though. Worldwide the a small number of cases in almost every country in the
majority of disputes and crimes are still dealt with by world.19 In the EU, a recent report estimated a share of
courts of general civil, criminal or administrative juris- less than 1% of litigated cases.20
diction, following traditional legal procedures. That is
because, to put it bluntly: innovation does not scale. 18
Australian Government Productivity Commission (2014), Access to
Justice Arrangements,
The number of pilots at individual courts is huge. But 19
Mota, C. E., & Marquis, L. (n.d.). New developments in civil and
very few make it to implementation across one court commercial mediation: Global comparative perspectives (1st ed., Vol. 6).
Springer International Publishing.
system. Specialised courts, tribunals, ombudsmen or 20
De Palo, G., Prof., D’Urso, L., Trevor, M., Prof., Branon, B., Canessa, R.,
problem solving courts may exist in some jurisdictions, Cawyer, B., & Florence, R. (2014). Policy Department - Citizen’s Rights
and Constitutional Affairs (pp. 1-235, Rep.).
but they hardly ever scale up to serve a number of
More generally, voluntary ADR, and voluntary new 2.4 Courts are conscientious
procedures added to court procedures keep struggling and self-critical
to attract users. So innovative procedures do not scale, ADR is no
solution and many clients are deprived of effective
This is due to the so-called submission problem: both access to justice. The awareness of this is grow-
parties have to agree at the same moment to submit ing. Leading judges now publicly say procedures are
their case to the mediator, arbiter, or new procedure. “designed by lawyers for lawyers”,21 and that they are
Once in a conflict, people just don’t succeed in doing too costly, lengthy and complex. They are, in short,
this, which has been explained from many psychologi- not delivering what people need.
cal, tactical and strategic perspectives. A pre-dispute
agreement to submit future conflicts to a dedicated Courts, for their part, are overburdened with cases
and well designed procedure is possible, but unlikely and their decisions tend to arrive too late. India has
to be in place. Neighbours, family members and parties the image of having extreme court delays. Actually,
to accidents and crimes do not enter into contracts Indian courts had 12 million cases pending in 2012, a
about handling possible future issues. Even busi- backlog of 1.3 years at current disposition rates.22 This
ness partners tend to make contracts with one simple is a normal pattern for courts elsewhere, with Italy and
dispute resolution clause, choosing a court or arbitra- Greece as examples at the more extreme end. From the
tion panel that will be addressed in case of a dispute, perspective of th user, the duration of a case is not
perhaps with a mediation to be attempted first. simply measured by the time spent in court, however.
Appeals, additional procedures and preceding actions
The “market” taken by lawyers and appellants must all be taken into
consideration. The European Court of Human Rights,
for good procedures which oversees the fairness of domestic trials in mem-
ber states, has long identified excessive case duration
is not a very as a fundamental failure of access to justice.23
efficient one.
A procedure has to be “sold” to two parties, who are
unlikely to want the same thing at the same time be-
cause of the tensions between them. That is, of course,
the reason we need courts of law set up by the state in
the first place. 21
Briggs, M. T., Lord Justice. (2015). Civil Courts Structure Review: Interim
Report (pp. 1-141, Rep.).
22
Arrears and Backlog: Creating Additional Judicial (wo)manpower
(pp. 1-83, Rep. No. 245). (2014). New Delhi.
23
Council of Europe/Europe Court of Human Rights. (2013).
A justice system in crisis: IT as the solution? “Again, and similar to the practice in other countries
and the traditional approach of the tribunals, the
Sir Ernest Ryder, Senior President of the Tribunals in judge will take an inquisitorial and problem-solving
England and Wales, is one of the many court leaders approach, guiding the parties to explain and under-
in common law countries with a new vision on adju- stand their respective positions. Once concluded,
dication. In a high profile lecture, he explained the this iterative approach may allow the judge to make
concept of “online continuous hearings”. a decision there and then, without the need for a
physical hearing; the traditional model to which
Here the view of litigation is changed from an the system defaults at present. If such a ‘hearing’
adversarial dispute to a problem to be solved. “All paris required, for example to determine a credibility
ticipants, the appellant, the respondent Government issue, technology could facilitate that too. It may be
department, and the tribunal judge, are able to iterate a virtual hearing.”
and comment upon the basic case papers online, over
a reasonable window of time, so that the issues in dis- “If we simply digitised our existing courts and
pute can be clarified and explored. There is no need tribunals, and their processes, all we would do is to
for all the parties to be together in a court or building digitally replicate our existing system. Such an ap-
at the same time. There is no single trial or hearing in proach would fossilise our Victorian legacy. It would
the traditional sense. Our new approach is similar to embed and continue into the future the systems of
that already used in other jurisdictions, where the trial the past, and in so doing carry with it the prospect
process is an iterative one that stretches over a num- that we would simply carry forward the problems
ber of stages that are linked together. In our model, inherent in those systems.”
however, we will not need those stages to take place
in separate hearings or indeed, unless it is necessary, “Digitisation presents an opportunity to break with
any physical, face to face hearing at all. We will have processes that are no longer optimal or relevant and
a single, digital hearing that is continuous over an at the same time to build on the best that we have to
extended period of time.” eliminate structural design flaws and perhaps even
the less attractive aspects of a litigation culture. It
also provides us with the opportunity to create one
system of justice, a seamless system. I firmly believe
that a digital by default system should not just strive
to deliver something that is physically more acces-
sible but also something that is better at solving
problems that is, the ‘one stop shop’24.
Other court leaders in the UK are expressing similar

far-reaching ideas. Lord Chief Justice Thomas has
declared that “our system of justice has become
unaffordable to most” having become a “justice
system in crisis”25. Lord Justice Briggs published
a Civil Courts Structure Review Interim report26,
finding that the civil courts are currently suffering
from “limited, antiquated and inefficient IT systems”
and requiring “radical digitisation” as a solution to
improve its service. The final report will be published
in July 2016. Senior Presiding Judge, Lord Justice
Fulford, made a speech in March in favour of Better
Case Management (BCM) through Digital Case
Systems (DCS), in which he stated that “All Crown
Courts will be paperless by the end of this month.
This is a monumental change, which will see the
end of practices that have endured for hundreds of
year27.”
Lord Justice Carloway gave recommendations for

redesigning the Scottish courtroom in accordance to
technological advancements, such as digital record-
ing of testimony, display of documents on screen,
routine correspondence with the court by email,
etc28. “We now need to capture the benefits which
200 years of technological advances have given us.
We certainly have not done so yet29.”
24
Ryder, E., Sir. (n.d.). ‘The Modernisation of Access to Justice in
Times of Austerity’ Lecture presented at 5th Annual Ryder Lecture:
In Australia, there is widespread concern that the The University of Bolton in University of Bolton, Bolton.
civil justice system is ‘too slow, too expensive and too 25
Law in a time of austerity. (2016, February 27).
26
Briggs, M. T., Lord Justice. (2015). Civil Courts Structure Review:
adversarial’. An in depth inquiry by the Productivity Interim Report (pp. 1-141, Rep.).
Commission yielded an extensive list of necessary 27
Fulford, Lord Justice. (2016, March 8). Speech by Lord Justice Fulford
for NPCC: National Criminal Justice Performance Conference.
improvements in the entire supply chain. From early 28
Carloway, Lord. (2016, January 29). Lord Carloway’s vision for
diagnosis, to resolution by ADR processes and adjudi- redesigning the Scottish courtroom.
29
Carloway, Lord. (2016, January 29). Lord Carloway’s vision for
cation, the current services should be upgraded. redesigning the Scottish courtroom. Keynote address: 15th Annual
21st Century Bar Conference, 4 December 20.
Judges are also overloaded with information in indi- Legal information is also increasing. With more case law
vidual cases. Attorneys paid by the hour have every being produced and becoming accessible through data-
incentive to add more information to their bundles. The bases, the number of procedural and substantive legal
IT revolution makes it far easier to discover information arguments that have some plausibility have multiplied.
that may be relevant. So videos, e-mail archives and Judges have to manage all this complexity.30
transcripts of telephone conversations are now routinely
added, which increases the quality of fact-finding and What is new, is that leading judges are now taking
also adds to the costs of digesting all this information. initiatives to change this (see Box). In the past, proce-
There are no clear and natural limits to the numbers of dural reform was often promoted by professors in civil
GB (gigabytes) that can be filed or discussed during procedure, by ADR pioneers or by experts from the World
hearings. More information requires better procedures Bank. The current wave of reform is lead by judges at the
for organizing the information, but these are not yet top of the court hierarchy in common law countries.
generally available.
This illustrates the urgency of reform as the courts
experience this. So online dispute resolution seems to
arrive at the right moment. In the next chapter, we will
investigate whether it can really help courts achieving
access to justice.
See footnote 11 for a study quantifying this effect for the Netherlands.
30
Topics for which specialised procedures, courts, tribunals or ombudsmen exist:
Family Commercial Tax Juvenile crime

Land disputes Patent Environment Drug crime
Probate (estates) Trademark Social security Domestic violence
Landlord/tenant Other IP rights Traffic Human trafficking
Neighbour disputes Admiralty Community Sex offending
Debts restructuring Construction Military Human rights
Employment Financial services Veterans Crimes against humanity
Insurance claims Bankruptcy Health (medical malpractice)
Consumer Antitrust Migration and asylum
(many countries have Small claims/ Mental health
specialized processes for a
range of specific goods and
debt collection Natives claims
services)
3
The promise
of ODR
“We need to look

to access to justice
and fairness…
One major force
is the power
of technology.”
-Roger Smith
Courts are here to stay, but their procedures are the Citizens of Ontario can go to a specialised site of-
problem. Voluntary ADR does not work. Innovation in fered by their judiciary: ontariocourtforms.on.ca. In
court happens, but it does not scale. So how can courts the Family Law section, clients and lawyers can find
and their users benefit from online dispute resolution? forms for an affidavit of service, an application for
In this chapter, we first look at digitisation in the pro- divorce, a response to motion of change and many
cess of access to justice as experienced by the users. more, 131 in total. The form for a divorce application
Then we move towards five possible contributions of allows claimants to tick boxes for 33 different claims,
ODR that are promising. such as “indexing spousal support” or “restrain-
ing/non-harassment order”. A textbox allows for
3.1 Helping clients to navigate submitting the reasons for the claims, and the
procedures form has a preprinted text for the defendant, with
In most cases involving individuals, courts cannot instructions as to how to proceed when the claim
rely on lawyers anymore to assist them. is received. Many courts are now making life easier
for their clients by having court forms online. They
Increasingly, judges are helped by John Mayer, director at the Centre for
Access to Justice and Technology at Chicago-Kent
have to streamline College of Law. Almost single handedly, he developed

A2J Author, a software tool for developing guided
the interaction with interviews. Non-technical authors from the courts,

clerk’s offices, legal services programs, and website
clients themselves. editors can use the program to develop web-based

interfaces for document assembly.
Individuals seeking access to justice are less likely to Many US courts now also have self-help centres, offer-
hire a lawyer than they were ever before. Studies and ing workshops on how to file claims. For people in San
anecdotal evidence from courts suggest that up to Mateo County, right in the middle of Silicon Valley, the
70% of litigants in family cases do not use a lawyer local courts offer help by a Family Law Facilitator, who
in Australia, Canada, England and the US. This is a will review documents before people file them.
matter of costs, and may also reflect a desire to feel
empowered, and to stay in control, even during the
most difficult moments of their lives.31
See the reports and literature on the website of

31
https://representingyourselfcanada.com/ set up by leading scholars

in this field, Julie Macfarlane.
The promise of ODR 35
Case Study: Sherry MacLennan, MyLaw BC Case Study: Colin Rule, Modria
ODR as a tool for information and guidance Beyond eBay; The next generation of consumer
in British Columbia dispute resolution
MyLawBC is British Columbia legal aid’s first foray Consumers demand resolution processes that work
into online dispute resolution. The Legal Services like the rest of their newly global, connected, online
Society developed MyLawBC to expand services so worlds: fast, easy, fair, effective. They want and ex-
that British Columbians who can’t afford lawyers pect resolutions to work the way the internet works.
can solve and avoid ordinary legal problems. Guided Large internet intermediaries learned this lesson
pathways diagnose issues and lead to customized very early. That is why companies like eBay and
tools and self-help resources tailored to the user’s Amazon invested tens or even hundreds of millions
needs in the areas of wills and personal planning, of dollars in building fast and fair resolution systems
mortgage debt, domestic violence and divorce. The within their marketplaces. Now the newer eCom-
Dialogue Tool for separating couples moves the site merce powerhouses (like AirBNB, Uber, and Alibaba)
from primarily self-help to ODR services. The inter- are continuing the pattern of investment by building
active platform enables separating couples to reflect their own Resolution Centers.
on their situation, chat with each other online,
exchange documents and create a separation agree- These innovations in eCommerce resolutions remain
ment. The site was created in collaboration with HiiL the primary drivers of progress in ODR, which is
and Modria, on the Rechtwijzer platform. urging other potential ODR users (such as courts
and government agencies) to pay close attention.
eCommerce ODR differs from public ODR in some
important respects. Most eCommerce ODR is almost
entirely extra-judicial.
It is highly automated, with a focus on direct negotia- law jurisdiction rely more on their interaction with the
tion between parties, only relying on an evaluative parties in the courtroom. Perhaps it is a reflection of
layer as a last resort. Outcomes are enforced through the decades long experience of the Austrian judiciary
private mechanisms (e.g. automatically moving with automating processes. It could also be a matter
money, or suspending a user account) as opposed to of funding. A brochure in German and in English
public channels, like courts and jails.But the design proudly states that 75% of expenditures of the Ad-
priorities gleaned from eCommerce ODR are equally ministration of Justice are covered by revenues. This
relevant to public ODR processes: 24/7 accessibility, even includes criminal justice costs, a type of services
transparency, speed, and ease of use. for which citizens tend to show little willingness to
pay. What must be added, though, is that financial
The main reason why ODR innovations are happen- management is less of a headache for Austrian (and
ing quickly in eCommerce is the torrid pace of growth German) courts. They also run the company and land
and competition in the eCommerce sector. Market- registries, services that can easily be funded from
places, merchants, and payment providers are under user contributions. Having high volume, user-paid
constant pressure to improve or be replaced, so they and effective services available, provides a court sys-
are forced to innovate in order to succeed. Public tem with a basis for sustainability, from which other
sector ODR programs are often not subject to the services can be cross-subsidized.
same kinds of competitive pressure, which can slow
the pace of innovation. However, canny public ODR Courts are beginning to link their procedures to online
projects should keep a keen eye on developments dispute resolution services. Sometimes judges even or-
in the eCommerce ODR space, picking off useful der litigants to use them. The website OurFamilyWizard
lessons and innovations wherever possible. Citizen offers a set of tools for parenting. Mothers and fathers
expec-tations are being driven by the private sector, can use a calendar tool, share information about the
and if courts and public agencies can glean best children, log expenses, exchange messages and keep a
practices and scaled platforms without having to diary. According to the website, hundreds of judges and
pay for the innovations themselves, they will have magistrates issued court orders mandating couples to
the best chance of keeping their constituents and use this website for managing their parenting matters.
customers satisfied.
This is state of the art. Courts are looking at ODR,
In Austria, a country ahead of most others in e-court but not yet applying it often. They see it as one of
development, forms can be found on webportal.justiz.gv. the options for improving their services. Interesting
at a national court form portal which also allows for add ons maybe, similar to mediation and other ADR
e-filing of cases. The judgments are mostly delivered services in the past. In a resolution confirming the goal
online. Communication with lawyers takes place of 100% access to justice, the US conference of chief
online as well. Here in Austria, the forms seem to be justices and the conference of state court admin-
less numerous and complicated than forms from com- istrators signal the advances made during the past
mon law jurisdictions. Perhaps judges from this civil decade. They point to “expanded self-help services for
litigants, new or modified court rules and processes 3.2 Designing justice journeys
that facilitate access, discrete task representation by from the user perspective
counsel, increased pro bono assistance, effective use The most recent reports on court reform and online
of technology, increased availability of legal aid ser- justice have made an interesting further move, however.
vices, enhanced language access services, and triage The talk is now of a three tier system with a diagnosis
models to match specific needs to the appropriate level phase, a conciliation phase and a decision phase.34
of services.” This is not exactly a clear message that In this three stage system, the design is much more
online dispute resolution is the way forward. user centred. People do not just go to court to ask for
a judgement. They experience an issue with some-
Still, leading judges and reports believe in online body else. They need to know more and want help
dispute resolution. They propose to start using ODR with a diagnosis. What is the usual way to tackle this
for small claims32 or as a voluntary process for parties problem? What are relevant rules for solutions? In the
wanting to opt out of the court procedure together.33 proposed system they will be able to do some kind of
So what is the case for using online dispute resolution intake online, where they can identify issues, answer
technologies in court procedures? questions and get information about the laws relevant
for each issue.
dispute avoidance The next step in a procedure is to involve the other

online evaluation Tier 1 party in the process. With the help of an online
informational
system, the other party can be invited to do her own
diagnosis and be informed as well. Next is a phase
dispute containment
online facilitation Tier 2 where they try to settle. An online system can provide
inquisitorial for assistance by a neutral facilitator, who is likely to
use the skills and methods of a mediator. The facilita-
dispute resolution
online judges Tier 3 tor can also collect additional information from the
adversarial parties. If they do not settle, the third stage is one of
adjudication, where the judge decides. All informa-
tion is then already available in an electronic file.
32
Susskind, R., Prof. (2016, February). Online Dispute Resolution for Law
Value Civil Claims (Rep.).
33
Council of Europe/Europe Court of Human Rights. (2013).
34
Susskind, R. (2016, February). Online Dispute Resolution for Law Value
Civil Claims (Rep.).
The basic idea People seeking access to justice tend to diagnose their
situation first, then attempt to settle, and if this fails,
is thus one of a ask a court for a decision. Paths to justice surveys

consistently show that around 50% of disputes are
fully integrated resolved by agreement, and in only 5-10% a judge or

other neutral adjudicator takes a decision. So facilitating
customer journey. this phase in the court procedure adds a lot of value for
the users, and increases the market share of courts.
optional
Explore family needs Work together Ask mediator for help

Reflect on situation and ideas
• Tell us about yourself • You choose first ideas from list • System compares ideas • Ask mediator to find best solutions
and your worries of solution that worked for others and shows you progress for remaining issues
• Learn about 25 issues to adress • Invite your partner to reflect as well • Negotiate agreements together • You can do it online, by phone
in your own words or in meeting
• Feel free to close/reopen issues
Allow judge
Update to make TO decide Review with Let judge determine
agreements work Better remaining issues professionals intervention
• See your lives changing • Ask to help you both to • Ask neutral lawyer to check whether • Understand you two can not
Adjust the agreements accept fair outcomes agreements are fair and effective make it work yet
• File agreement at court • Let judge choose what should be done
from evidence-based guidelines
• Ask help from judge to ensure each
of you complies
1. Information, formulas, calculation tools (certified by government)

For each issue you can get acces to: 2. Solutions that worked for others (research based)
3. High quality assistance for special situations, splitting up business, violence issues etc.
CASE STUDY: Next, the other party is invited on Rechtwijzer. After

CORRY VAN ZEELAND, RECHTWIJZER HUUR. going through the same steps, you will meet each
Landlord tenant disputes within an ODR platform other in the collaborative space specifically de-
signed to work on shared solution(s). The dialogue
“There are about 17 serious, frequently occurring structure supports the communication between the
housing problems, ranging from bad maintenance two of you. Step by step, issue by issue, you draft
and noise from neighbours to rent arrears and evic- an agreement that works for both. The first ideas
tion that keep tenants awake and landlords worried. on solutions (remember the model solution each of
Around these issues, and with the help of tenants, you selected in the intake?) will help shape the final
landlords, lawyers, judges and mediators, we have agreement, as it offers standard texts that can be
built the Rechtwijzer Landlord Tenant platform. This tailor-made to fit your situation.
new offshoot from the Rechtwijzer branch offers
the same process and quality as the successful But wait…what if we get stuck? A third feature of
Rechtwijzer divorce does to separating couples. So, Rechtwijzer is the availability of neutral experts.
suppose you are a tenant or a landlord, and you are Mediators and adjudicators are nearby to assist in
experiencing one or more problems, what would you the decision-making. One way or the other, your
find on Rechtwijzer? issues will be resolved. You will leave Rechtwijzer
with a balanced, fair, and sustainable agreement.
Firstly, clear, actionable information. On the ap- And if you don’t feel confident enough to close it
plicable rules, on do-s and don’t-s; all supported by yourself, because you lack the knowledge or you
tools and tips. After you have indicated what your feel the stakes are too high? Then a reviewer is at
problem is about, Rechtwijzer guides you through your disposal. The reviewer is a lawyer specialised
the information. Intake questions help you to get in rent issues, who reviews the agreement and, if
a better understanding of what exactly is going on needed, provides guidance on how to make it
and what your concerns, interests and goals are. You better and fairer.
write down your views on the problem and from the
presented model solutions you select the one that fit That is it, basically. Work together on the best solu-
your needs best. tion for a serious problem. In a structured way, in
your own home, time and pace. Without the stress
of a legal fight, and against predictable costs. “
A possible next step is a procedure design that If the customer journey is the basis for the design, the
has been proposed by HiiL for family problems (see user experience is likely to be much better compared to
picture below). Here the outcome of a procedure is al- the current process. The typical process in a civil case is
ways an agreement. After diagnosing their situation, now that intake, diagnosis and information are handled
the parties are presented with ideas for solutions for by a lawyer for those who can afford one. Others will
the issues that tend to be dealt with in a separation self-help and look for support online or from free or low
agreement. The system offers them standard solu- cost helpers. Lawyers are experienced advisers, but each
tions, which they can tailor to their situation. After lawyer has his own way of doing an intake, diagnos-
negotiation, which can be assisted by a mediator, ing the situation and informing the client. Then the
their agreement is reviewed by a neutral lawyer. lawyer may or may not try to settle the case first, again
This task can be performed by the courts, or be following an individual best practice, which may or may
delegated to a lawyer appointed by the court. If the not match with the working methods of the opposing
parties do not agree on solutions for one or more lawyer. If no complete and final settlement is reached,
issues, the judge or another adjudicator fills the the lawyer will bring the case to court fully preparing for
gaps in their agreement. the legal battle leading towards a court decision. The
other lawyer may again have a different process and
Dimensions of justice To what extent can

well designed ODR
improve user experience?
1. Fairness of procedure
Procedural justice (voice, participation) Major contribution
Informational justice (information at the right time and place, Major contribution
sufficient, understandable)
Interpersonal justice (respect, respectful interaction and language) Some contribution, moderation and
offline interaction may be needed
2. Fairness of outcomes
Distributive justice (fair outcomes, according to needs, Some contribution, informed consent
equal treatment, according to contribution, just deserts) needs monitoring
Restorative justice (undo harm, compensate, remedy situation) Little contribution, depending on
design of procedure
Effective outcomes (timely, likely to be complied with, solving the Some contribution, mostly through
underlying problem) better monitoring and feedback
Transparency of outcomes (based on clear criteria, comparable Major contribution
to others in similar situations)
different ideas about the relevant issues and rules. Both networks of professionals. Victims, as well as offend-
parties present their own case, which may or may not ers, are stimulated to collaborate, but also held to
resemble the case submitted by the other party. Then account for what they did and what they should do
the court typically tries to settle the dispute again, using in the future to remedy the problem. Prosecutors and
a range of tools such as informing them about possible lawyers are assisting in this process.
outcomes, asking about their needs and fears, referring
to mediation or warning about the costs of continued lit- 3.3 The promise of fairness
igation. This can be a confusing phase for the litigants, In the United States, consumer mediation, arbitration
who come in fully prepared for bringing forward their and online dispute resolution have been criticised
arguments, and are expected to switch their attention to for being open to manipulation by vendors. They are
reaching a high quality agreement under extreme time the ones who pay the mediators, arbiters and online
pressure. If they fail to make progress in the settlement dispute resolution providers. So what can guaran-
hearing, they will be back on the adjudication track, tee that these providers do not tweak the system
waiting for a judgment, which may or may not be helpful in favour of their paymasters? Commentators more
to resolve the underlying dispute. generally have been expressing worries that alterna-
tive processes for dispute resolution replacing court
In the new designs, the process is much better procedures will lead to “second best justice”. Court
streamlined and integrated. The judge supervises the procedures, in the meantime, struggle with their own
settlement process and is there to overcome dead- legitimacy crisis. So what can online dispute resolu-
locks. She decides open issues, which could be about tion do to guarantee due process and fair outcomes in
visiting rights, custody or splitting up family assets, the setting of courts?36
by entering a fair, legally sound solution in the
agreement. The judge also can add court orders to Fairness is a complicated concept. It is subjective and
the agreement, thus ensuring compliance, or tackling not easy to define. Research has revealed that people
complications such as domestic violence, harassment value seven forms of justice in situations where an-
or one partner hiding assets. other person makes decisions that have an impact on
them. These dimensions of justice are also broadly ac-
The new procedural designs avoid an adversarial cepted as objective guidelines for a fair justice system.
battle, where each party should frame the dispute Online procedures can be designed in such a way that
as an accusation or a claim with supporting reasons they optimise the fairness experience.37
versus a series of defences. Inspiration for this process
came from the work of problem solving courts in the US
for drug crime, domestic violence and youth crime.35 35
See Par. 2.2.
36
Rabinovich-Einy, O. (2015). The Legitimacy Crisis and the future of
In this vision of a court procedure, the goal of is courts .
to find a set of interventions that are most likely 37
Ebner, Noam and Zeleznikow, John (2015) “Fairness, Trust and Security
in Online Dispute Resolution,” Hamline University’s School of Law’s
to work. To this end, courts use information about Journal of Public Law and Policy: Vol. 36: Iss. 2, Article 6.
evidence-based approaches and mobilise the local
Procedural justice is about voice and participation. Well users about their input. Documents can be uploaded and
designed online procedures can enable people to give made available to other participants in the procedure.
their views about a land conflict, for instance. A diag- Mediators, judges or experts do not have to do their
nosis of the type of conflict can be the starting point. own intake with the parties. They can access the online
Is it about the way of using the land, or is somebody interface, and see what the parties already agreed to or
else claiming ownership of the land? Questions can be brought forward, in a well organised way that enables
asked about the emotions of the parties and about what them to work efficiently.
worries them. In their own words, and in their own time,
they can speak about their needs and choose from a Informational justice means that people get relevant and
list of suggestions for fair solutions. Online procedures sufficient information, at the appropriate time. An online
reduce stress, because there is no hurry; having to tell procedure for issues around termination of employment
a lawyer or a judge everything in an hour. People can can provide a framework for the issues that typically
reflect, change their mind or refine their answers. They arise: reasons for organisational change on the side of
can give their own perspective first, and then be made the employer, reflections on the competencies of the
to interact with the other party. A well designed intake employee, options for a next job, education needs, time
of a procedure provides a structure which ensures that for the transition and possibly compensation. The rules
people give all information that is generally needed. A and legal criteria for each item can be made accessible
helper or coach can be made available, by telephone, through links on the page for each issue.
chat or in a meeting, clarifying questions and reassuring
Distributive justice
Informational justice fair outcomes, according
information of the to needs, equal treatment,
right time and place, according to contribution,
sufficient, understandable just deserts
Restorative justice
undo harm, compensate,
remedy situation
Procedural justice FAIRNESS FAIRNESS
voice, participation OF PROCEDURE OF outcomes
Effective outcomes
timely, likely to be complied with,
solving the underlying problem
Interpersonal justice
respect, respectful Transparancy of outcomes
interaction and language based on clear criteria
comparable to others
in similar situations
Experts on ODR and fairness during the 2016 ODR “Fairness and access to justice in delivering justice
conference online; seven pillars of wisdom:
1. There must be acceptance of the underlying
“ODR processes are designed and implemented and principle of access to courts and tribunals at
practitioners function with commitment to reducing proportionate and affordable cost.
bias in the delivery of the process. They are designed 2. Online determination must be supplemented
and implemented to facilitate and uphold due pro- by off-line: it cannot be exclusive.
cess; without bias or benefits for or against individu- 3. Individualized assistance must be available
als or groups, including those based on algorithms” to online users
(Leah Wing, University of Massachusetts/Amherst). 4. Online determination alone is not enough:
systems need to integrate with information
“It is desirable to disclose any contractual relation- and assistance.
ship between the ODR administrator and a particular 5. ODR must be developed with clear and precise
vendor, so that users of the service are informed of user-oriented goals and be rigorously monitored
potential conflicts of interest” (Leah Wing, Univer- against them.
sity of Massachusetts/Amherst). 6. Online requires a different culture from the
judicial: there must be constant feedback and
“Does ODR permit people to voice what matters to improvement
them? People that use ecommerce yes, but some 7. Online is no excuse for any drop in quality:
people do not know how to use a computer, they will ODR results must be as legally correct as offline
not have an opportunity for voice. That is why it is so (Professor Roger Smith, former director of Legal
important to have a parallel system” (Nancy Welsh, Action Group and JUSTICE).”
Professor of Law at Penn State University).
Online procedures can also frame the conflict in such a A website can frame the communication in more pro-
way that a respectful dialogue is most likely. Disre- ductive ways, using the best practices from mediation.
spect is the most frequently cited form of injustice. If needed, the communication patterns can be made a
When people are asked about their needs and worries, separate issue to work on.
they are less likely to come up with accusations or to
denigrate the other party. Once they feel heard, they On the other hand, a small percentage of online com-
are more likely to listen to the other party with respect. munication tends to be abusive. We haven’t heard
In a courtroom or in a direct conversation between the about online dispute resolution platforms creating or
parties, there is always the issue of who is listened to attracting huge quantities of unrespectful communica-
first. When both parties can submit their own views tion. Moderation may be needed in some situations,
first, and then look at the worries and needs of the however. An online environment should not increase
other party, they are more likely to give and receive conflict behaviour.
recognition. Usually, disturbed communication and
unproductive interaction patterns are one of the key
problems in a dispute.
being requested, and to give a short reason for the

Case Study: Jainarain Kissoon, modification. A deadline is put on every request,
Our Family Wizard which cues the other parent to respond in a timely
How ODR creates neutral spaces to promote manner. Approved requests will adjust the parent-
communication and agreements ing schedule accordingly without interrupting the
rest of the calendar.
“For high conflict co-parents, disputes can be
quick to occur when information is hard to interpret The best thing about parenting time modification
or is not readily available. This is especially true requests on OFW® is that parents have the option
when discussing matters dealing with parent- to propose trades in parenting time. Instead of just
ing time or shared expenses. However, with requesting or forfeiting time, offering to trade or
some added structure to facilitate the sharing of swap time can incentivize the other parent to con-
complete information in a neutral space, these sider the offer. If a parent receives a trade request
discussions can be more productive every time. The but isn’t in full agreement, that parent can submit
OurFamilyWizard® (OFW®) platform is designed to a counter offer with their proposed dates. Being
promote clear, concise, and timely communication able to offer trades in parenting time opens up the
between co-parents in a structured and unbiased possibility for negotiations to take place, giving
environment. parents a chance to mediate their own issues and
reach agreements that are favorable on both sides.
OFW® is comprised of tools that help co-parents to Regardless of whether a request is approved,
more easily manage all aspects of their parenting negotiated with a counter offer, or simply ignored,
plan. Both parents have access to features includ- a complete history of each request submitted is
ing a shared family calendar, expense and payment maintained indefinitely on the calendar in order to
log, family information bank, and more. Templates preserve a complete record of what was proposed.
built into the tools prompt parents to create entries
with complete details that will be promptly shared Another benefit of using OFW® is that it maintains
with the other parent. Being able to provide quick co-parent communication in a highly organized
and accurate information can be very important in format. Keeping documentation in order is of great
time-sensitive situations such as in the case of a importance for co-parents, especially when communi-
parenting time exchange request. cating about shared expenses and reimbursements.
An OFW® calendar will outline a family’s regu- Costs like unreimbursed medical expenses are ones
lar parenting schedule and holiday agreement; that can lead parents to quickly threaten each other
however, there will be times when each parent will with going back to court to seek compensation.
need to propose a brief change to some part of this When they finally reach the courtroom, insufficient
agenda. OFW®’s patented parenting time modifica- or unclear data regarding the costs and reimburse-
tion tool requires that a parent enters the dates ment requests can only prolong litigation or result
Disputes process
Landlords and tenants have options for resolving
disputes – Self-resolution, Fastback resolution,
mediation or Tenancy Tribunal hearings.
1 Self-resolution
Self-resolution means sorting out
problems by talking to the other person.
It can lead to a less stressful and more
positive working relationship in the
tenancy.
2 Fast-track Resolution
FastTrack Resolutiuon is a quick way to
confirm agreements reached between
landlords and tenants.
3 Mediation
Mediation helps landlords and tenants
talk about and solve their problem. 4 Tenancy Tribunal
The Tenancy Tribunal can formalise what is
agreed at mediation, or can make a ruling on
an issue that can’t be resolved and issue an
order that is legally binding on the parties
involved in the dispute.
in an unfair ruling. In this situation, having accurate While many co-parents are able to communicate and
facts laid out in a way that is easy to interpret can reach resolutions through OFW® on their own, their
lead to less confusion and fewer court appearances. legal and mental health practitioners can be granted
Using the expense and payment tracking tools on access to oversee client activity. OFW® Professional
OFW®, parents can record child-related spending Access provides a direct view into co-parent commu-
and upload copies of receipts as costs are incurred. nication as well as the opportunity for professionals to
They can even take a photo of a receipt on their interact with their clients directly through the website.
smartphone and upload it using the OFW® mobile
app. Every expense is categorized based on each While having activity monitored is always an option,
parent’s amount of responsibility for different types OFW® has proven so effective at helping co-parents
of costs. The assigned category will do the math to to reduce conflict on their own that family law judges
calculate the amount that the other parent owes in in all 50 states in the United States, Washington D.C.,
reimbursement. Once submitted, the other parent and 5 Canadian provinces are regularly ordering its
has immediate access to review and respond to the use in contested cases. Whether co-parents are in
request. Reporting tools allow parents to readily constant conflict or only have a few issues to sort out,
demonstrate an overview requests, reimbursements, OFW® can improve their chances of coming to resolu-
and debts yet to be paid. Organized expense histo- tions on their own through the help of this highly-
ries and reports that are easy to read make it a much structured, neutral environment.”
simpler task for the court to get a clear picture of a
family’s expense history and make a fair ruling.
Can online dispute resolution contribute to fair,
OFW® maintains a neutral zone for co-parents balanced outcomes? If the parties in a court case are
to communicate about all sorts of matters in a shown the most relevant rules for determining child
non-hostile environment. Tools and templates cue support or the relevant sentencing guidelines, this
co-parents for information focused only on one topic increases the probability that they obtain outcomes
in order to help create more order within their com- that are fair. Outcomes that are generally fair, or rather
munication–something that often lacks in email or standard in judgments and settlement agreements
text message correspondence. OFW® does provide can be offered as suggestions, or as templates to
parents with a tool through which they can send work from. An ODR platform can display the most used
messages to each other, but messages are seldom model agreement for people in a similar situation. The
sent when parents are using the other tools to sim- judiciary could even approve certain categories of solu-
plify their communication to just the facts. tions. This can lead to an increasing definition and over-
all vision of what ‘fairness’ is - fairness as an essentially
cultural and democratic concept, but which maintains
the opportunity for courts to adjust where needed.
Online dispute processes also increasingly facilitate This is hardly a new issue for the design of procedures.
the neutral review of settlements. The New Zealand People’s future can be at stake, for instance in eviction
Tenancy Tribunal, for instance, has a fast-track proceedings where banks or landlords may want to
process for confirming agreements (see picture). The get rid of a difficult customer, ignoring the impact on
mediator talks privately with the tenant to confirm they the family and the broader community. Most of these
have agreed to and understood all conditions of the disputes are settled between the parties directly,
agreement. If the tenant is unsure about any part of some of them through lawyers, some of them at the
the agreement, or if there is a problem with the appli- steps of courthouse, some of them with only one party
cation, the mediator will immediately call the landlord. represented, some of them inside the courtroom whilst
Then a 3-way mediation telephone conference takes the judge retreated in his chambers. Is this settlement
place to discuss just the issue that prevented the what each of the parties really want? In all of these sit-
agreement from being confirmed and formalised. 34 uations the responsibility for informed consent has to
Review by a neutral lawyer or mediator is one way to be allocated somehow between the parties themselves
alleviate worries about fairness and to protect weaker and the professionals assisting them.
parties. Another emerging technology is to let parties
check boxes that confirm that they have thought about The platform is a new player in this game that can
known risks for fairness, or even made some analysis increase the level of protection, but also cause others
of this. The Rechtwijzer divorce platform contains to take less responsibility because they assume the
such extra warnings for a number of issues, one of platform gives protection already. The same dynamics
them being the calculation of alimony according to a are known from courtrooms where judges hesitate to
standard calculation method for this. Whether this interfere when lawyers obviously miss points or a liti-
will really protect people, or just make them tick the gant seems to give in to easily. Online dispute resolu-
boxes, remains to be seen. Another option is to identify tion providers and courts have to deeply rethink these
signals early on with a high risk for unfair agreements: issues. They can also build in feedback mechanisms
domestic violence? Huge income differences? where participants are asked to rate the fairness of
outcomes or complain about fairness with the provider.
An online dispute resolution procedure is likely to be
aimed at agreements. Online dispute resolution can also contribute to timely,
effective outcomes. Depending on the type of problem
Is the settlement and individual needs, the timing of phases and actions
can be programmed. An interesting experience of many
obtained through online dispute resolution providers is that users expect

much faster responses than in offline procedures. This
informed consent? is an incentive for professionals working on the plat-
Fast Track Resolution. (2015).

38
form to deliver their contributions more quickly as well. An online system cannot directly provide restorative
Delays can be monitored, followed up on and acted on justice. Victims of accidents and crimes need information
much easier than in off line procedures. A standardised about what happened. Most of them want some interac-
process, with clearly circumscribed tasks for lawyers, tion with the persons who contributed to their victimisa-
experts and judges, is less likely to lead to delays than tion, because they look for explanations, motives and
an open ended procedure, where case-management is acknowledgments, perhaps leading to an apology. They
not centralised. Of nine proven tools to reduce court need psychological or medical assistance, and support
delay, eight can be more easily be implemented with to reorganise their lives or on a continuous basis. Some
the help of online dispute resolution (see Table). victims need compensation for loss of earnings, and a
punitive sanction may be appropriate. Whether online
Effectiveness can be monitored in any procedure, dispute resolution can support this, depends on the
but in court procedures this is not built in as a stan- design of the procedure. There is no intrinsic reason why
dard. Automated client reviews can be part of the online dispute resolution would be better in providing
system, leading to data giving feedback about what such remedies than an offline procedure. In some cases
solutions work or do not work. Online platforms such it may enable appropriate communication between
as ourfamilywizard.com are set up to help parents participants, reducing tensions and fear. In other cases
to monitor their parenting plans and also to reduce face to face contact may be more helpful and can be
uncertainties about what has been communicated supported online.
between them. This is an example of how ODR sys-
tems can log information about compliance, making
oversight by courts much easier and court. National Center for State Courts. (n.d.).
39
Case flow management tools that are proven Possible online dispute
to be effective (National Centre for State Courts39) resolution contribution
Case-disposition time standards Yes

Early court intervention Yes
Continuous court control of case progress Yes
Use of differentiated case management Less so
Meaningful pretrial events and schedules Yes
Limiting of continuances Yes
Effecting calendaring and docketing practices Yes
Use of information systems to monitor age and status of cases Yes
Control of post-disposition case events Yes
What do I get compared to what others got in a similar 3.4 The promise of humanising
situation? This is an important point of reference for the delivery of justice
participants in legal procedures. In an online dispute Online dispute resolution has the connotation of
resolution environment, the tendency will be to stan- robotised justice, in which human interventions are
dardise and to inform people about commonly used stripped away. The reality of online legal services
solutions and criteria. This may increase the transpar- is very different. Leading online platforms such as
ency of outcomes, and thus the overall user experience. LegalZoom, Clio, Avvo, Rechtwijzer and the applica-
Individualised reasons for decisions or for deviation tions of the Modria platform fully integrate human
from standards can be communicated more easily. If the interventions into their processes. The added value
dispute interface is organised issue per issue, a judge of the system is the thoughtful organisation of the
or an arbiter can indicate which issues are decided on process, matching clients needs with knowledge about
the basis of a standardised formula, and devote special what works best and the best experts for helping
attention to the more individualised decisions. people out. Economically, the human interventions are
also still very prominent. These experts typically take
At the beginning of this paragraph, we asked whether 75% to 95% of the revenues generated within the
ODR platforms can deliver high quality outcomes platform. ODR is not so much online judge or lawyer,
through fair processes. The table above, summarizing but a far more sophisticated version of ancient rules
the analysis, first confirms that that justice is a multi- of procedure. On top of this, it streamlines most if not
faceted concept. Getting procedures right requires all administrative processes, payments and archiving
working on all these dimensions. Second, the analysis needs of courts. For lawyers and experts, a well posi-
suggests that online procedures can indeed improve tioned ODR system also provides marketing and sales.
the probability of fair outcomes through timely, effec-
tive procedures, in which parties can have voice and What this creates in a well designed ODR system, is time
participate on an equal footing. But much depends on and budget for high quality human interaction with the
how human interventions by lawyers, judges and other parties. Longer hearings, with more in depth dialogue.
experts are integrated in the system. More support of people during the most difficult mo-
ments of their lives; less calls, letters, motions and briefs
to keep the court system in motion. More sophisticated
and individualised solutions; less arguments and case
law summaries that are repeated again and again. More
of what lawyers, mediators or judges feel most compe-
tent to do and where they can add most value.
Next generation criminal procedure Fact-finding can also be supported online. Inspired by
best practices in courts, from investigative journalism,
Will criminal procedures be innovated and conducted from academic research and from neutral investiga-
online in a few years from now? One area of innovations by special committees, innovative procedures
tion happens in so-called problem solving courts, have been developed which center on a “map of
where judges oversee a process of coping with crime. facts”. This is a neutral description of what is known
The defendant is expected to participate in hear- and uncontested, what is seen by participants from
ing that also involves victims, family members and different perspectives and what is unknown. During
the community. It is a cooperative process, where the procedure, the map of fact is continuously im-
victims are aided in recovery and offenders are held proved by contributions from the parties, by experts,
accountable, but also get access to adequate treat- by witnesses or by results of additional investigations.
ment. Monitoring compliance is essential as well. An online procedure can provide a structure for this
Logging agreements and monitoring progress could map of facts and visualizations that make the process
be supported with an online system, which could more transparent for all participants.
also help to share information.
Another cooperative process that may be sup-

ported online is plea-bargaining and other types of
settlement of criminal proceedings. Online processes
enable participants to engage with issues at a
distance, with more time for reflection and with more
access to information. In criminal justice, a sub-
stantial number of defendants will need additional,
personal assistance, however.
The promise of ODR for those working in the legal The selection of people appearing in courtrooms does
professions is that they will be saved from repetitive and not make life easier for courts. Difficult people tend to
administrative tasks, and can move up the value chain to have more difficulties. So quite a few people appearing
engage in solving problems between people or organ- in courts have little IT skills, cognitive capabilities or
isations. Bringing peace and justice, individualised and may need to be assisted in their interaction with others
in an equal way, earning a fair share of the value they because of low social skills. In the stages of diagnosing
add, that is what most of them went to lawschool for. and triaging, who can use ODR and who needs what
level of support?
Getting the integration of platform and human
services right, is by no means easy. People appearing When developing these interactions, and finding out
in courtrooms vary enormously in their expectations, what can be done online and what with live human
their motivation and their needs for assistance. assistance, ODR providers tend to rely on research and
Nowadays, all these different clients also expect to be best practices from judges, lawyers and mediators.
served through multiple channels. This may include Nowadays, quite a few dispute resolution interventions
a person at a desk, in a meeting, by smartphone, by have been researched. This research supports the
e-mail, by chat, by video-conferencing and through plausibility of some dispute resolution trajectories over
web-interfaces helping them to navigate complicated others. But often, best practices are not very explicit,
procedures, available 24/7. Some people will have or even contested, so a lot of new research is needed.
difficulties using online procedures, because of low In a court hearing, is it generally better to first ask the
IT or communication skills, just as quite a few people parties what is most important to them? Or should the
have difficulties understanding current court forms and facts be clarified first and foremost? How to deal with
procedures. For them, personal assistance will remain signals of domestic violence when these come up dur-
essential and this has to be provided iin a way that still ing separation proceedings? When the answer is:
empowers them. Friends, family-members, social work- “It depends,” a further inquiry is needed.
ers, lawyers, citizen advice centres and paralegals may
have a role to play here. All these challenges have to be In order to improve the design process, innova-
met and it will take a lot of time before courts and ODR tors would benefit from a culture of working in an
providers have sorted them out completely. evidence based manner. Procedures can be compared
to medical treatments or therapies. In the medical
sector, hundreds of treatment guidelines drafted by
professional bodies help practitioners to optimise
their services to patients. Hospitals setting up new
services can also benefit from this way of sharing and
updating knowledge. Having such guidelines avail-
able, would greatly facilitate the work on designing
innovative procedures.
3.5 The promise of financial ODR can also optimise the allocation of tasks between
sustainability and growth the parties, lawyers, judges and other professionals in
Our 2013 trend report was called Trialogue, Releasing a procedure. A lawyer, judge or expert has easy access
the Value of Courts. The title refers to the trap most to all information, well organized. So the time needed
courts across the world find themselves in, namely: for high quality interventions can be reduced. Because
if courts offer more user-friendly procedures, and tasks are well defined, and users of the justice systems
add more value to people’s lives, there will be more prefer this, online platforms tend to work with fixed
demand for their services. Courts, and judges working fees that are affordable to most users. Fees for (neutral)
in courts, will experience this as being overburdened. lawyers, arbitrators or mediators are in the 100s of euros
There will be delays, increases of costs of lawyers and or dollars for interventions in standardized scenarios.
other procedural hurdles until there is an equilibrium
between supply and demand for court services. Usually ODR procedures at courts can be self-financing through
this is a low access to justice equilibrium. user contributions. This is already a reality in some
existing court systems, as is illustrated by the example
Can ODR change this? of Austria. Here court procedures are organized in such
a way that courts are fully financed through user fees.
The marginal costs Legal aid, or a waiver from court fees, is available. The
legal aid budget is very low (€19 million in 2012, a little
of every new case more than 2€ per inhabitant compared to 40€ in the
UK and 29€ in the Netherlands). Austrian lawyers
are low in an ODR tend to be paid by a fixed fee, related to the value of
the stakes in court proceedings. According to a recent
system once it is set report, the costs of the system are kept low by a high
degree of standardisation and computerisation of the
up and delivered. judiciary and the use of assistant judges (Rechtspfleger)
especially in the branches with a high numbers of cases.
Cross subsidisation funds criminal proceedings.40
Each extra case is no drain on the budget. It is an
extra opportunity to assist people who need the
court’s assistance.
European judicial systems – Edition 2014 (2012 data): Efficiency and

40
quality of justice (p. 85, Rep.). (n.d.). CEPEJ.

With well organized, ODR-supported procedures, Charging users for court procedures, and financing
courts can be open to every new case because funding courts directly from fees, is somewhat controversial.
is secure. They will not have to reduce their workforce Courts often prefer to be financed from the general
because of cost savings by ODR, but can use ODR as a state budget. But only a few countries (such as
tool to extend their services to caseloads that are cur- Norway) succeed in securing sufficient budget to
rently not reaching the courts because of high costs. give their citizens free access to courts. Jurisdic-
Courts can also use ODR to help clients with the early tions with good performance on civil justice, such as
phases of dispute resolution: diagnosis, intake and ne- the Netherlands, Singapore, Denmark and Germany
gotiation. From a market share of disputes of currently tend to fund a substantial part of their court budgets
around 5% in which courts are asked for a judgment, through court fees.41 In the US, the trend is also to in-
they can grow to assisting perhaps 50% of disputants crease the proportion of court income raised from court
with a track to a fair agreement; mostly negotiated, but charges. A study found that even in Zimbabwe, 55% to
if necessary imposed by a court. The early phases of 60% of the costs of civil justice could be financed from
the process do not require any expensive, personal as- user fees. Stakeholders in this very poor country sup-
sistance, so they can be offered at attractive prices to port this.42 Charging users seems to be the only known
the public. Marginal costs may be limited to assistance way forward towards 100% access to justice.
through a help-desk.
Some ODR procedures at courts would still require
subsidies, because refugees or low skilled criminal
defendants cannot pay court and lawyer fees. A few
general principles for charging are needed as well.
Costs of adjudication can be allocated to parties
according to their resources and their ability to avoid
or resolve conflicts. Organisations then generally pay
a higher proportion of fees than individual citizens,
employees, customers or tenants. A number of new
checks and balances are needed. Overactive courts
could perhaps offer procedures and outcomes that
are biased against defendants, because plaintiffs
would be their target customers. Prices, now set by
courts, should be controlled somehow, because a
court may be seen as a monopolist.
WJP Rule of Law Index. (n.d.).

41
Nyangara, D. (n.d.). Funding Civil Justice in the Age of Fiscal Austerity:

42
The Case of Zimbabwe. World Journal of Social Sciences, 4(2), 149-159.

Case Study: Jin Ho Verdonschot,

HiiL Rechtwijzer Technology
The Rechtwijzer approach to financially
sustainable legal processes
The Rechtwijzer ODR system is funded by user fees.

After the free diagnosis phase, the person starting
a case pays an entry fee of 90€. The other party is
invited to take part in the process for free.
This includes the intake and dialogue/negotiation

phases. Each party can involve a mediator, an ad-
judicator or a reviewer, who all operate under fixed
fee regimes. It is left to the parties who pays the fee.
Add on tools and specialized services are also deliv-
ered for a fixed fee. The fixed fees are determined at
a level that allows skilled and knowledgeable service
providers to work effectively and to generate an
attractive income stream. With a sufficient volume
of cases, the fees cover all costs of updating the
platform and generate income that can be used to
extend and improve the platform. Initial investments
are covered by an access fee for the organization
offering the platform to its clients.
Online procedures require substantial investments, towards the ministry responsible for health care; finan-
though. They also have to be maintained. These costs cial services claims, why not let the ministry of finance
have to be added to the court fees, if the procedure carry that burden?
is to be financially sustainable. So developing ODR
procedures makes most sense for high volume, recur- Online dispute resolution, if well designed and linked
ring disputes, following a certain pattern. Until now, to innovative ways of financing courts, can change
prototypes and sophisticated online platforms have these dynamics. It can open the door for a court system
been developed for: separation/divorce, personal where courts would be responsible for the design of
injury, landlord/tenant problems, property tax assess- procedures and also would be able to charge the users
ment, consumer complaints and claims, debt collection, of these procedures the full costs. ODR can help to
employee/employer issues and neighbour disputes. achieve this, because it lowers the costs of providing
access to justice and makes it more easy to set and
If this promise can be fulfilled, online dispute resolu- charge fees for different problems and user groups.
tion can free the court system from the low access
to justice equilibrium. Courts implementing online 3.6 The promise of partnership
dispute resolution can indeed start thinking about and scale
delivering 100% access to justice. They, and the LegalZoom is a document assembly giant with
lawyers and experts working via an ODR platform, can revenues of $200 million in 2013 and growing. It
then start improving their services, deliver more value offers assistance for setting up companies, drafting
to users, and charge part of it to those users. wills and trusts and other legal documents which are
tweaked for all US jurisdictions. The services for small
Self-financing procedures, supported with ODR, will companies are also available in Canada and will be in
also change the position of governments, who tend to England soon. Economies of scale are key to informa-
struggle with financing courts.39 Governments, trying tion technology, where the marginal costs of helping
to get their budgets right, now have a perverse incen- yet another customer are negligible.
tive to limit access to courts. Why would a ministry
of justice support laws that really allow courts to use Modria, a leading online dispute resolution company
new, more user-friendly procedures, if that leads to in Silicon Valley, has developed a generic platform for
budgetary problems? More access will not only lead setting up online procedures. Every phase, action or role
to claims from the judiciary, but also for extra legal that may occur in a procedure can be configured on the
aid and for extra prosecutors. Currently, ministries platform. Texts informing users and professionals can be
of justice are more likely to divert packages of cases implemented by the supplier of the procedure. Business
away from courts, towards government agencies that rules allow the system to automate certain steps. Pro-
can dispose of cases at lower cost, or shift the access gramming procedures is thus becoming much easier.
to justice problem to other ministries. Ministries of
social affairs might pay for employment courts and Kramer, X., & Kaikuchi, S. (2015). Austerity in Civil Procedure
43
and the Role of Simplified Procedures Erasmus Law Review.

debt restructuring; health care conflicts can be pushed
with the parties, either online, or through whichever

Case Study: Shannon Salter, communication methods work best for the participants,
Civil Resolution Tribunal to help them reach a consensual agreement. The
The building blocks of the world’s first ODR court facilitators have expert dispute resolution training, and
The Civil Resolution Tribunal (CRT) is Canada’s first the CRT technology will help connect these experts
online tribunal, and currently the only ODR system in with the people who need their help, around British
the world that is fully integrated into a justice system. Columbia. If the parties reach an agreement, this can
In 2012, the British Columbia government passed the be turned into a binding order of the CRT, which is
Civil Resolution Tribunal Act, creating a voluntary enforceable as if it were a court order. If the parties do
framework for the CRT to resolve small claims and not reach an agreement, then the facilitator helps the
condominium disputes (a type of neighbour dispute). parties to prepare for the final stage, adjudication.
In response to strong stakeholder demand, the
government amended the Civil Resolution Tribunal During adjudication, a CRT tribunal member, who
Act in 2015, making the CRT mandatory. The CRT will is a lawyer with expertise in the CRT’s areas of
begin accepting claims of people living in buildings jurisdiction, hears the parties’ evidence and sub-
with shared areas (strata claims) on a mandatory basis missions and makes a binding decision. While there
beginning in the summer of 2016. is no limit on a participant’s ability to get legal help
throughout the process, if a hearing becomes nec-
The CRT involves four stages, each part of a seamless, essary, a party will usually have to get the CRT’s
end-to-end process focussed on early, participatory, permission to have a lawyer represent them. CRT
online dispute resolution. The first stage, the Solution hearings will generally take place through elec-
Explorer, is a guided pathway system which uses tronically submitted written documents, or through
interactive questions and answers to give people tai- telephone or videoconferencing.
lored legal information as well as tools and resources,
like template letters, to help them resolve their CRT decisions will be publicly available through the
dispute consensually. The aim is to help people better website. A person who does not agree with a CRT
understand their problem so they can make informed decision can appeal the decision to court. The CRT
decisions about their next steps. has effectively been co-designed by the public who
will use the tribunal.
If someone is not able to resolve their dispute using the
Solution Explorer, the next step is to start a CRT claim, The CRT has worked with stakeholders including
using the online intake process. After serving the oth- com-munity advocates, condominium owners, lawyers,
ers in the dispute with notice of the claim, the parties mediators, judges, and the general public to user test
have a brief opportunity to negotiate directly with each the technology and consult on the CRT’s processes.
other. The CRT provides some tips and suggestions This has increased the CRT’s confidence that they will
for this negotiation, but is not otherwise involved. At be able to meet their mandate of providing fair, afford-
the third stage, facilitation, the CRT works actively able, flexible, and timely access to justice for the public.
Online dispute resolution designers from Modria de- An international consortium between courts, legal aid
veloped and offer standard dispute flows for consumer boards and other organisations supplying ODR proce-
issues and property tax assesment. HiiL has done dures can thus be beneficial. A joint product road map
the same for divorce and separation procedures and may be part of this. Development costs can be shared, IT
for landlord/tenant disputes. The same flow is now risks minimised and quality can be enhanced. If online
offered to divorcees in the Netherlands, Canada (BC) dispute resolution providers would ever become too
and England. Issues between spouses tend to be the powerful, joint purchasing power may be necessary.
same everywhere. The process of informing people,
framing the dialogue, mediation and adjudication can So besides promising better customer journeys, lead-
also be fit into family law practice across the world, ing to more fair outcomes, humanising the delivery of
where these phases already tend to exist. Rules about justice and financial sustainability, ODR also opens the
dividing property, custody and child support are differ- door to partnerships that can make courts stronger and
ent. But they tend to have the same basic structure, so more able to deliver on their ambitions. Perhaps the
national rules can be plug ins in a flow that is used in claims in the report by the commission led by Richard
many countries. Susskind are not that incredible after all.
This hugely increases the scalability, but also has the

potential to enhance the quality of the process. Experts
from different countries and backgrounds can offer sug-
gestions on questions and templates for solutions. By
comparing their suggestions, it becomes clear what are
particularities of one legal system and what are learn-
ings that can benefit divorcees in other countries.
How to build a partnership?
Peter van den Biggelaar is the former Director of

the Board of the Dutch Legal Aid Board (Raad voor
Rechtsbijstand) and has experience with building
a partnership around Rechtwijzer
In order to successfully arrive at a working and

sustainable partnership, common knowledge is
one of the key factors. A shared focus on the need
of people is paramount to achieve such a coopera-
tion, also in order to share the costs and risks of
implementing ODR by helping each other through
resistance. Full cooperation and sharing of best prac-
tices and ideas is also important, as ODR providing
legal aid is quite a new domain - yet for the time being
legal aid boards or other providers of judicial aid com-
mitting to such endeavours have the privilege of being
a frontrunner, thus not facing excessive competition.
Thus one can see it as a burden or privilege to take
the first steps towards embracing ODR mechanisms,
but we see it as the latter, also when considering
the reward one gets afterwards. It is also important
to start small, and assume a proactive role in the
development, being part of and active in innovation,
so as to find the best solutions together. Then we
have seen rapid improvements in the delivery of our
services and satisfaction of our users. Our Rechtwijzer
experience also showcases the preferred position
of first clients and service providers, as they often
receive extra support and privileges being the first
pioneers taking on such a challenge.
4
Issues to be
resolved
“We can learn

maybe more
from our failures
than from our
successes”
- Dory Reiling
Although judiciaries are increasingly open to justice for exploring emotions or listening to personal experi-
technology in their courts, and some have explored ences of victims. Codes of civil and criminal procedure
the potential of ODR40, we do not yet see courts who do not say much about timing and legal costs, whereas
have fully integrated it. There are clearly barriers these are key for effective access to justice.
to adopting this very promising technology. We see
four broad categories of these: legislation barriers,
barriers to investing in and buying ODR systems, Currently,
risk barriers and barriers from the time-honored pact
between courts and lawyers. the rules
4.1 Legislative space and framework of procedure
Court means enclosed space. It is the walled garden
where the sovereign and his entourage sat to listen to
are set by
complaints of citizens, all asking them to intervene on
their behalf. Indeed, judicial institutions are very much
the legislature or
restrained, nowadays not so much by walls but by rules
that are as hard as walls. Courts can not easily leave
by the judiciary
this rule space. There are extensive rules about alloca-
tion of cases between different courts. Rules about The basic design of civil and criminal procedure laws
who can be a judge. Rules about who can appear in dates from the early days of national states. Legal
court. Rules guaranteeing independence. Rules about forms of actions and defences, leading to judgments,
costs and financing of courts. And thousands of rules still determine the flow of court procedures. In the
about court procedures. 19th century these rules were exported to Africa,
the Americas and Asia by the colonisers of the era.
These rules can be a major barrier to implementing Lawyers in emerging states happily accepted the gift
online dispute resolution. Civil procedure rules may talk of good rules of procedure developed in London or
about documents and assume oral or mail communica- Paris over centuries. Nobody at the time expected
tion. They require claims, whereas an online system may these procedures, established in the time of duelling,
start with one party indicating issues for discussion. A neo-classical buildings, gowns and mail coaches, to be
judgment is seen as a decision whether a claim has a there forever. However, the classical rules of procedure
basis in the law and in the facts. Solutions of disputes withstood revolutions in France and Russia, genocides
tend to have the form of agreements about who should in Germany and Rwanda and eras of rapid technologi-
do what next, however. Facts are to be established by cal change in the US and China. They proved extremely
hearing witnesses, a rather unreliable way to establish hard to change.
what is said and done. Videos and mobile phone records
have not been considered. Court hearings now have
prescribed goals and formats, which do not have a place
Issues to be resolved 63
Judges take the liberty to apply the old procedures that this is the way forward. Hearings may now partly
in more modern ways. Within the framework of rules, be focused on settlements, but the preceding phase
some change is possible, such as the shift to settle- of exchanging views in writing is still set up as a battle
ment during court hearings. Rules can be reinterpreted between positions. Judgments are still meant to be
by judges to get rid of some complications. There may final, whereas implementation of court orders is a huge
be an amendment of the rules of procedure suggested problem and years of appeals may follow.
by a member of parliament with a legal background.
But this a slow process. Legal innovation by means of Redesigning court procedures from a user-perspective
committees, case law and supreme court decisions may is thus next to impossible under the current regulatory
take decades to settle down, whereas users of IT are regime for courts. If these procedures are really unfit
accustomed to weekly updates. Major change in civil for purpose of resolving disputes effectively, there
or criminal procedure is a rare occurrence. No court may even be a challenge of them under human rights
system has been able to radically simplify procedures law. Are these procedures really delivering citizens
or to implement a specialisation program, although due process or the right to fair trial under Article 6
countless reformers of procedures, Worldbank/IMF European Convention on Human Rights?
experts and committees have come to the conclusion
It is surprising how much innovation still has come out Orna Rabinovich, a leading expert on ODR and
of these organisations, illustrating the need for it. Most courts, has argued that a new basis for legitimacy
innovations have been suggested from the outside, of procedures is needed. Not the legitimacy of rules
with judges implementing them, often ignoring precise that is the basis for current court procedures. Not
rules of procedure. Judges just started referring cases the legitimacy of consensual processes that is the
to mediators without any legal basis. They found ways basis for mediation and alternative dispute resolu-
to consult with experts without letting them be grilled tion more in general. But the legitimacy of a good
by adversarial lawyers. Appeal courts now routinely design, focusing on user needs, and guaranteed by
ask the parties to visit the court for a hearing before ongoing monitoring over the process and its results.45
any appeal briefs are filed. Most often judges are ap- In our 2013 trend report we recommended a similar
plauded for doing this. Quite a few family judges just strategy, building on the experience that judges
answer the phone and set up a meeting if a couple can be trusted to put aside procedural rules in order
in distress calls them. Giving judges the freedom for to accommodate better procedures. We proposed
“case-management” and being the organiser of the to shift the responsibility for the design of the
process is generally recommended. procedure to the courts, letting courts operate under
general principles of procedural justice, and goals
So what are possible strategies for changing the such as speedy, low cost resolution. The courts can
rules of procedure in order to accommodate online then develop and gradually improve their procedures.
procedures? Fitting in online procedures by counting In this scenario, accountability is not as much ac-
on courts to ignore the rules of procedure may work complished by higher courts checking whether judges
sometimes. But it will also lead to many tensions, followed the precise rules, but by evaluating their
and restrain the options for an optimal design. This performance against the broad principles and goals.
strategy is suitable for quick win pilots with highly How citizens experience procedural justice can be an
motivated participants. It is unlikely that this is the way element of this. Courts would have to report on the
to scale up innovative procedures beyond one court extent they achieve procedural justice, timeliness and
and a limited number of years. other goals.
Another solution can be to set up a new online court,

under a specific legal regime. This has been the basis
for the civil resolution tribunal in British Columbia.44 The
drawback of this approach is that innovation takes place
in a separate organization, with limited scope and bud-
gets. The barriers to scaling up can be substantial. On
the other hand, creating a “subsidiary” for an innovative
model is a known strategy for incumbents to take part in
the innovation process, without being restrained by the https://www.civilresolutionbc.ca
44
Rabinovich-Einy, O. (2015). The Legitimacy Crisis and the future of

45
old model and organization around it. courts.
Case Study: Zbynek Loebl, Youstice The size of the potential market
Reaching solutions, independent of courts for ODR providers46
“Youstice is a general and easily customizable
trust-building platform that gives retailers and What market sizes are we talking about? The average
service providers access to full ODR services and at annual spending on IT for courts in 47 member states
the same time provides opportunities for amicable of the Council of Europe with 800 million inhabit-
complaint resolutions through direct negotiation. ants is 3% of the €33 billion court budgets.47 So the
worldwide market for court IT perhaps has a size of
Through Youstice, customers are able to quickly around €5 billion. Only a part of this will be dedicated
describe their problem and propose solutions in to high volume procedures providing access to justice
their own language. Then the other party - retailer for individuals, however.
or service provider will review the complaint and
either agree or negotiate in its preferred language a With online dispute resolution fully integrated in court
counter-proposal. Because of our structured procedures, new models for financial sustainability
approach, both parties still understand each other of courts are possible as well (See par. 3.5). Online
even though they communicate in different lan- system providers could charge fees for the use of
guages.If an agreement is not reached between the their technology in court procedures and for enabling
two parties, an option is available to escalate the legal services through the platform. Global revenues
unresolved issue to one of accredited Online Dispute of courts are in the order of magnitude of €100
Resolution (ODR) bodies. The dispute is then seam- billion. The global legal services market is estimated
lessly transferred to the appropriate ODR center via at $616 billion in 2014.48 More than half of this is
the Youstice platform and the selected ODR center from transactions, and most revenues from litigation
issues a decision. The decision becomes binding on are from commercial disputes. If one third of court
the parties if both parties accept it, unless the parties revenues and of law firm litigation revenues are cur-
agree otherwise. Youstice then follows whether the rently related to high volume dispute types involving
decision has been implemented by the retailer. If deci- individuals, the size of the dispute resolution market
sions are not implemented, Youstice stops servicing is perhaps €60 billion. If providers of improved online
such retailer or service provider. procedures would charge 5% of these revenues to
courts and lawyers, or to the users of their services,
Youstice is independent of common courts. Parties there is a €3 billion opportunity for them.
are free to initiate court proceedings independently
on resolving their issues via Youstice. 46
European judicial systems – Edition 2014 (2012 data):
Efficiency and quality of justice (CEPEJ)
47
European judicial systems – Edition 2014 (2012 data):
Efficiency and quality of justice (p. 85, Rep.). (n.d.). CEPEJ.
48
Research and Markets: The World’s Largest Market Research Store.
(2015, June).
This strategy of course requires a change in the structure Moreover, the size of court systems is small. Court
of legislation for court procedures. Instead of setting procedures are currently local products, developed for
detailed procedural rules, or requiring the judiciary to a county, a province or a nation, with rather limited
set such rules, parliaments should agree on the broad budgets. Earlier innovations in court procedures
principles and goals. Their approach to civil and criminal did not scale (par. 2.3). So ODR providers trying to
procedure would then be similar to how they treat other deliver procedures to courts will find it not easy to
highly professional services. No member of parliament set up their business.
would ever dream of prescribing in detail the processes
to be followed by surgeons, psychotherapists or archi- Indeed, online dispute resolution providers have been
tects. For judges and lawyers, this is what they do. offering procedures to end-users and lawyers since
the 1990s. There is a lack of clear success stories,
Such a more open and new blueprint for legisla- however, besides the eBay Resolution centre for
tion on court procedures can be tested first. A rule consumer disputes. Many promising examples of ODR
allowing experiments could be implemented. A tryout have not survived the start-up phase, often struggling
of the new model for a specific type of disputes for financially, and only a few platforms have made it to
which procedural reform is urgent is possible as well: scale.49 So for courts, it is difficult to select the right
family justice, for instance, could be an area for this. partners as well. In short, the market for ODR proce-
dures serving courts is not well developed.
4.2 Investing, selling, buying
and independent courts A number of solutions for this dilemma have been
A second challenge for implementation of ODR in proposed. First, the technology of online, modern
courts is associated to how courts should purchase court procedures can be seen as a public good. Recent
ODR systems. For innovators and legal (tech) entre- research has emphasised that the internet, the many
preneurs, developing ODR platforms and introducing technologies now present in our iPhones, innovative
them, courts are a difficult market. Courts tend to medicine and biotech have been developed with public
develop their IT systems in house, such as Electronic money before entrepreneurs stepped in.50 The new
Filing Systems (EFS) and Digital Case Systems (DCS). technology of mechanisms to bring peace in human re-
They do this with the help of IT consultants. Courts lationships would be a great candidate for state backed
have complicated tendering procedures for IT. When research and development. The size of investments
they issue the tender, they are also likely to stay close needed would be rather limited. Online procedures can
to the judicial procedures that are known from case be built from components that are already available in
law and the current legislation. The tender process the legal and dispute resolution domain. It is mostly a
needs to be carefully designed in order to enable the matter of facilitating and testing interactions between
continued innovation process that is necessary.
Schüttel, N. (n.d.). Streitbeilegung im Internet – Zukunft oder Irrweg?
49
Mazzucato, M. (2013), “The Entrepreneurial State – Debunking Public

50
vs. Private Sector Myths”.

people. No major technological breakthroughs such Courts also face the dilemma whether they want to
as a high capacity battery or sequencing the human build ODR in house or buy it as a cloud service. Most
genome are necessary. There are precedents in legal courts until now have build custom IT systems for their
history: Napoleon and Justinian invested in codes procedures and websites with forms as user interfaces.
that benefited dozens of countries and are still the This gives them control over security, over the proce-
basis for property laws, contract law and liability rules dure and over the supporting work-processes. The
throughout the world. approach fits their core value of independence.
Another option is that courts from a number of jurisdic- This independence has a price, however. Courts tend to
tions become member of a consortium investing in fur- build tailor made systems for themselves, fitting their
ther development of ODR applications for courts. Such immediate needs, but not very innovative. The end-user
a cooperation could perhaps be exempt from antitrust experience of these systems is often less than perfect.
rules and tendering procedures. There is a need for col- In this way, courts do not benefit from economies of
laborative networks that can overcome the technological scale. They face considerable IT costs if they want to
challenges and achieve the scale that is needed. A well build a really sophisticated system for the most common
balanced and well governed consortium may be able to and frequent categories of cases. They also need costly
bring in the funds and legitimacy that is required. updates. There is always the risk of another government
IT-project disaster. In practice, their independence eas- range of €100 per case filed. A consortium between
ily leads to dependence on major IT services providers several court systems can generate sufficient revenues
such as IBM, Atos or Hewlett Packard. to enable the ODR provider to invest in R&D for next
versions of the procedure. So the business case for
The alternative is not very attractive either. Should implementing ODR is becoming better.
courts buy new procedures from ODR start-ups from
Silicon Valley? These organizations may be dedi- Buying online procedures from ODR providers also
cated to and specialize in online justice journeys. creates issues of IP ownership. Courts now like to be
They could still fail as a business, though. Or they in control of their core business processes (although
could become as powerful as Google or Facebook. A they never controlled their own procedures and
consortium approach, as described above, could make finance in the past). ODR providers invest in IT and
these risks manageable. A joint product road map can procedures and want IP to protect their business
be agreed on, and a process for dedicated develop- and to attract investors. The optimal solution here
ments wanted by only one court system. But getting seems to be that ODR providers get the IP and offer
this right may be problematic. contractual safeguards to the courts. Both courts
and ODR providers then have an interest that the
A solution for this can be that courts do both in order procedures conform to (principled, goal based) leg-
to hedge their risks and opportunities. A court, want- islation and are evaluated positively by plaintiffs and
ing to offer a user-friendly procedure could continue defendants. But other, more creative solutions may
to develop a general case-management system with be needed. And then there is the interaction with
forms and dispute flows for (say) neighbour conflicts. the legal profession.
Next to that, it could implement an ODR procedure
offered by a trusted commercial ODR vendor or con- 4.3 Risks of implementation
sortium. A plaintiff could then choose between the Compared to letting parliaments decide on the op-
two procedures, the more tested and conservative erating procedures of courts, the risks of buying and
one, or the new one offering an innovative access to implementing online dispute resolution systems are
justice experience. Courts would then learn about probably limited. Still, there is a lot of risk management
new technologies and stimulate their development at to be undertaken. Privacy should be guaranteed. Court
the same time. Over time, the in house or outsourced systems should be protected against hackers and other
trajectory will prevail. security threats. Data should be kept in secure data-
bases with regular backups. Identities of the parties
The good news is that the costs of ODR procedures have to be checked. Service level arrangements need
are dropping rapidly. Sophisticated ODR procedures to be on the safe side.
can now be set up for courts at a cost of €500,000
or less. This is a fraction of the yearly IT budget of a Courts and other adjudicators such as tribunals and
medium sized court system serving 5 million citizens. ombudsmen have experimented in the past with set-
With sufficient case volume, license fees can be in the ting their own standards. They found out, however,
that they can build on the experience of government In this environment where competition is on price and
agencies and industries requiring similar safeguards, personal trust, most lawyers working for individu-
such as the banking or the medical sector. Besides als still practice alone. They may share an office and
copying these standards, there is also the option of services with colleagues each running their own busi-
jointly developing standards with other court systems. ness, or team up in partnership based on a personal
Courts in Alabama are likely to face similar risks as alliance. A few boutique firms may successfully build
those in Belgium or South Korea. a brand aiming at rich individuals willing to pay for
tailor made solutions. But most of these businesses
Courts also have legacy IT systems and administrative are small and personal, struggling to make ends meet
systems, and are investing heavily in digitising current financially. Marketing and sales, administration, office
court procedures. New technologies have to be tested organisation and complying with regulations eat up a
safely, scaled up next to the existing systems, and then lot of time, so they may bill $200 to per hour to clients
perhaps more integrated. If the courts would start leading to only $50 per hour in revenues over a year in
working with cloud based ODR solutions, they would which they worked 2000 hours. Part of this revenue
certainly need interfaces with their administrative comes from legal aid, where government agencies or
systems that will require extra IT development. NGOs give a few hundred euros or pounds per case in
subsidies. From the 100k revenues, the bills have to
Finally, the costs of a change in working methods can be paid first, so these lawyers take little money home.
be substantial. Fine-tuning the interplay between Still, many lawyers find it hugely rewarding to bring
professionals and an IT system can take time. Although order and hope to disrupted lives. In this market, the
the role of judges has been shifting from decision providers of online platforms do not seem to have any
making to managing processes already, the transition problem finding lawyers to engage with.
can still be difficult for at least some judges. Effective
change-management will be needed.
4.4 Engaging the legal profession ODR platforms

Working as a lawyer aiming to help individuals is not
easy. Employees, divorcees, refugees and people in overwhelmingly
custody may need a lawyer urgently, but are then
reluctant to hire one, fearing high fees, escalation and engage trained
loss of control. Competition is tough. In high-internet
penetration countries, 50% of clients start looking
lawyers for
for legal advice online. Lead generating portals set up
by IT-savvy lawyers give them a tiny bit of informa-
providing advice
tion, and then connect clients by e-mail or phone to
a local lawyer. These websites promise solutions and
to clients.
assistance for free or for a few 100 euros.
KEI project, Netherlands At the moment, there is a great deal of work going
The Council for the Judiciary’s Quality and In- on behind the scenes to prepare the necessary
novation programme (Kwaliteit en Innovatie - KEI) digital infrastructure for the new judiciary. In 2015, a
strives towards a modern judicial process that makes number of digital work processes were implemented.
the judiciary more accessible to litigants. Using Meanwhile, it has become possible for all courts
innovation and digitisation, KEI makes the judiciary to submit asylum and detention cases digitally.
more accessible and user-friendly for litigants and Administrators and trustees are increasingly able to
improves and simplifies the way in which judges communicate with courts through their digital files.
and their employees work. The innovations that the Many employees combine their KEI-based work with
KEI programme brings will soon ensure that legal their normal work. The new way of working requires
proceedings are dealt with more rapidly. Those some adjustments from everyone in the Judiciary.
involved will know sooner where they stand. The Some of the jobs will disappear in the future. This
judge will also gain greater control. Furthermore, requires proper guidance. There is a lot of atten-
this programme will ensure greater unity of justice, tion and opportunity for training and continuing
and will be better for the environment when paper education. Everyone will receive sufficient time and
files are replaced by digital files. training to learn how to work with the new work pro-
cesses, the new legislation and the digital resources.
Managers will receive training so that they can guide
their employees in this process.
Lawyers have been diversifying their services during the in outside investors as co-owners, that they cannot set
past decades. They now also perform roles of media- up a venture with psychologists or accountants on an
tors, settlement experts, arbiters, forensic experts, early equal basis or that they cannot advertise their service in
neutral evaluators, damages assessors, reviewers and the way they would prefer. Lawyers are likely to look at
providers of complicated legally sound solutions. In new, new services from the perspective of what is and what
online supported procedures many of these neutral is not allowed. So professional rules, often vague and
roles are needed. Judges cannot take up all these roles open-ended, written for offline legal services of the
themselves. For lawyers, ODR is an opportunity to attract 1980s, are tested to see whether they prescribe the use
clients, and move to roles that are more sophisticated of two lawyers instead of one neutral one. Perhaps the
commanding higher fees. Many lawyers also tell ODR rules require that a lawyer starts each assignment with
providers they like the innovative environment. a face to face meeting? Should each new client show
his passport to prove his identity? Is the general duty of
They are happy to be relieved of the costs and tasks care of lawyers towards their clients perhaps requir-
of marketing, sales, archiving and the many other ing that online platforms send clients away if there is
troubles of running your own office. So online plat- the slightest hint of incompetence, inequality, conflict,
forms can offer access to discrete packages of legal violence, debts or assets?
assistance for a hundreds of dollars or euros, and
specialised services for a few thousands. Many lawyers This is not intentional harassment of newcomers by
see this as a good enough deal compared to working lawyers wanting to protect their monopolies. It is more
on legal aid or going after clients themselves. what lawyers do all day and night, playing with the
rules to find out how to move forward. Lawyers are
The organised bar has proven to be more difficult to assertive and very much aware of the need to protect
deal with. ODR providers are not the only ones experi- their role in society. Too many governments have tried
encing this. Perhaps 60% of legal innovators sharing to curtail their independence. People will trust them
their experiences on the HiiL website innovatingjus- if they safeguard the integrity of the profession. Then
tice.com mention resistance from lawyer organisations politicians will support them. So the lawyers who are
as a barrier to innovation. From the Netherlands, to spending a few years at the end of their career in
Nicaragua and Nigeria. committees at bar associations do just what they are
supposed to do: test how the professional rules should
The dynamics are always the same. The legal profes- be interpreted and protect the common good of an
sion is, unsurprisingly, more heavily regulated than most independent legal profession.
other professions. Regulation is also more heavily used
or felt as a threat, instead of being a tool to protect
customers and generate a level playing field. Online
platforms, or lawyers working through them, are told
that they cannot provide legal advice, that they cannot
share revenues between them, that they cannot bring
Demander Justice, France: For 4 years, the French bar associations have been
Leonard Sellem and Jeremy Oinino having developed launching unsuccessful judicial procedures against
an online small claims platform, Demander Justice, Demander Justice, claiming it is infringing lawyers’
which since its launch in 2012 has processed more monopoly for assisting and representing people
than 250,000 cases. Earlier this year, the Paris Bar before the court. Like many countries, France grants
Association pressed charges against the small firm lawyers a monopoly for legal representation and
for ‘illegal practice of the legal profession’, which advisory. This monopoly is strengthened by the man-
failed in court as the judgment rid Demander Justice datory representation by a lawyer before high courts.
of all charges. This is their personal account: Some other courts, whose vocation is to remain
close to the citizens, allow litigants to represent
Since 2012, Demander Justice has been developing themselves, even without sharp legal knowledge.
websites empowering people to initiate and file a case Demander Justice’s mission is making it easier for
100% online for disputes worth up to €10,000 that citizens to file their cases to these courts. It does not
occur in France. As a first step, Demander Justice’s represent them before the court, nor it give them
software generates the proper demand letter accord- legal advice on the opportunity to file their case or
ing to the purpose of the dispute and the location of the potential outcome of the filing. The struggle of
the plaintiff. The demand letter is then sent via certi- the bar associations against Demander Justice aims
fied mail to the defendant by Demander Justice. If the to extend their monopoly to all courts. The Council
dispute doesn’t get solved in a friendly manner after of French Bar Associations now openly advocates
the demand letter, the case can be filed with the local for mandatory paid consultation prior to any legal
small claim court. During this second step, Demander action and mandatory legal representation before
Justice proceeds with legal requirements and files all courts. Though the last acquittals of Demander
the case on behalf of the plaintiff with the court. The Justice undoubtedly represent a step forward on the
plaintiff would only have to present himself to the road to upgrade access to justice, it is clear that this
small claim court for the hearing. Through its websites road will be long and winding, as numerous trials are
DemanderJustice.com (consumer disputes) and still ongoing, all initiated by lawyers. It is interest-
SaisirPrudhommes.com (labor disputes), it processed ing to note that none of the 250,000 customers of
more than 250.000 cases, with an overall resolution Demander Justice ever sued the company.
rate of 82% (50% with the sole demand letter).
For courts, lawyers have always been essential partners. increases, and many clients would still prefer outsourc-
Lawyers relieve courts of the burden of informing using to lawyers. New procedures are also likely to be
ers. They organise the facts and legal issues in such hybrids with many forms of human assistance.
a way that judges can make decisions. Many judges
started their career as a lawyer, being in the heat of There is also an issue of professional identity that
commercial law practice and making some money from should not be ignored. In a world of ancient rules
it, before changing to a more neutral role that can of procedure, clients urgently needing access and
be continued until the age of 70 or 75. This partner- overburdened courts, lawyers are used to taking the
ship is less strong in the area of justice journeys for lead. The ownership of the process is theirs. Online
individuals, though. Most individuals are appearing in procedures that are truly answering user needs are
court without a lawyer nowadays, if they are allowed to designed and implemented by innovators with a strong
“represent themselves” and do not have funding for a personality who like to own things as well. Hospitals
lawyer through legal aid or insurance. Being a judge is and consultancy firms see similar battles between
more of a separate career track now, independent from highly trained professionals and the managers who
that of a lawyer. want to improve systems of service delivery.
Innovators of legal services experience all this as a major For courts, and for online dispute resolution provid-
risk and a cost. What the bar sees as a test case about ers, the challenge is to move towards a renewed pact
lawyer self-regulation, is a threat to the business model with the legal profession. One strategy is to opt for a
of a start up and thus to its existence. Lawyers and gradual route. Courts and ministries often try to start
judges in panels deciding cases about online platforms implementing online dispute resolution at the low
genuinely believe they are interpreting the rules inde- end of the market: small claims under £25,00051 or
pendently and with a view on the best interests of the neighbour problems between people living in apart-
consumers of legal services. But for providers of online ment buildings.52 This will cause less resistance from
platforms this does not feel like answering to an inde- lawyers, because these disputes are not their core
pendent market regulator. They see it as harassment of business, and the need for less expensive solutions is
new entrants by the vested interests. most obvious here. The drawback, as we have seen,
is that tiny segments of the market at the low end are
Is online dispute resolution against the vested interests not an interesting investment opportunity for ODR
of lawyers? Lawyers specialising in litigation should per- providers. Many innovations of legal procedures such
haps fear that they will lose the opportunity to earn big as (mandatory) mediation or fast-track adjudication
money from assisting rich clients during lengthy court routes have also stagnated after being introduced in
procedures with many stages and appeals. Efficient, on- these areas (see par. 2.2).
line procedures, with clients getting most of their legal
information and guidance from the system, diminishes Briggs, M. T., Lord Justice. (2015). Civil Courts Structure Review: Interim
51
Report (pp. 1-141, Rep.).

the need for these litigation skills. But there are new Civil Resolution Tribunal Act.(2015).
52
opportunities as well. The volume of cases going to court

Another strategy is to face the issues head on. Success- A third element of such a strategy is to engage lawyers
ful innovators such as LegalZoom have fully integrated to become co-owners of the new developments. No
human legal assistance into their services. Lawyers thus online dispute resolution platform can exist without in-
get access to more work and are relieved of low value tegrating the knowledge and skills of lawyers. Lawyers,
administrative tasks and of high cost marketing efforts. with their extensive market knowledge and skills in
Courts implementing ODR can offer lawyers a similar brokering fair solutions, are of course the first and best
deal. They will have to find a new balance between placed to take the lead in developing online dispute
dispute resolution tasks they offer themselves and what resolution platforms, and finding out how they best
they outsource to lawyers. An online platform creates work with clients. But they cannot do this from their
access to new client group. Innovative new services single lawyer businesses or from their three partner
or court interventions can be developed and offered outfit with five lawyer employees striving to become
through the platform. Legal markets for corporates and partner as well. Lawyers are now excluded from taking
governments are thriving. The consumer market can be part in serious innovation. Professional regulations
as lively when innovation really takes off here. forbid them to bring in outside capital and skills. If
lawyers would really be allowed to take part in the
At the same time overzealous defenders of the old game of innovation, the apparent resistance of the
rules from the bar and in courts have to be kept at bay. bar against change might quickly disappear.
LegalZoom countered litigation by state bar associa-
tions by starting, and thereafter settling, an antitrust 4.5 Can the challenges be overcome?
case against the North Carolina bar and submitted The history of innovation at courts does not have many
amicus curiae briefs to the US Supreme Court in cases success stories. This is not because no one tried. These
involving restrictive practices of dentists.53 The only failures provided a great deal of learning about what
truth in these regulatory matters that should be ac- does not work to innovate court procedures and a num-
cepted is what the users want and need. Testing this ber of plausible strategies that may work. The following
continuously and showing the results to regulators is Table summarises the results of this Chapter.
key to success. Courts, and online dispute resolution
providers working with them, are entitled to a level
playing field. Traditional and new services should op-
erate under neutral rules and financial conditions.
North Carolina Board of Dental Examiners v. Federal Trade Commission

53
[Web log post]. (2015, February 25).

Experience Likelihood of
Issue Possible strategies in court breakthrough
systems success
Rigid rules Reform committees, amendments to codes, new case law Major Very slow,
of procedure incremental change
(4.1) Voluntary (ODR) alternatives by consent between the parties Major Very low, only small
market share expected
Counting on courts to ignore rules Some Works for local pilot,
not for scaling up
New legal regime for court, tribunal etc. Major Scope tends to be limited
Wholesale shift responsibility for design to courts, Little Plausible, but requiring
under general principles and goals major change process
Responsibility to court for one area at the time Little Plausible
Market for ODR Tender procedure with requirements set by courts Major Incremental change,
procedures not in one jurisdiction;
well developed breakthrough unlikely
(4.2) Private investments in start ups delivering ODR for courts Some Investors first need
to see courts as buyers
in the market
State backed research and development first Some Substantial,
but long term strategy
Consortium between courts and ODR providers Little Substantial
Developing next generation procedure in house Little Substantial, hedges risks

+ buying ODR procedure from vendor (plaintiffs choose) and stimulates learning
Experience Likelihood of
Issue Possible strategies in court breakthrough
systems success
Risks of Set standards for security, privacy, Major Standards may be

implemen- identity and IT risks for the judiciary unrealistic, some risks
tation (4.3) may be overstated
Follow standards other government agencies Some Good, some residual risk
Develop standards in consortium with other court systems Some Good, some residual risk
Engage legal Engaging groups of lawyers to work via an online platform Some Good start, but not leading
profession (4.4) to widespread acceptance
(4.2) Resolve issues about professional regulations amicably Major Resource intensive, and
may jeopardize innovation
Start with small segments of lawyer market Major Low, ODR will not attain
(small claims, consensual ADR) good quality and scale
Offer lawyers high value work and co-ownership, Little Substantial, but requires
with user needs as criteria revised professional rules
Counter the attacks by overzealous defenders Little Needed as part of strategy,

of current rules resource intensive
5
Models of ODR and

Court Integration
“We need to
conduct business
in a different way,
bring the service
to the people
in a different way.”
- H.E. Al Majid
Now that we have explored the possible advantages of

ODR for courts and the users of these services, as well
as the issues to be resolved, this Chapter investigates
four models of cooperation between ODR and court
procedures. For each model, the advantages and
disadvantages are listed.
5.1 Full Integration

In this model, court procedures merge with ODR pro-
cesses. An example is the model proposed by the Civil
Justice Council report and the HiiL design (see pic-
tures in Section 3.2). In an integrated model, there is a
phase of dispute resolution for diagnosis, negotiation
and adjudication, with additional phases as add ons.
This model builds on the increasing activity of courts in
supporting settlement. The process of letting the par-
ties grow into settlement is seamlessly integrated with
asking the court for a decision.
Models of ODR and Court Integration 81
According to participants in the ODR 2016 conference,

full integration would empower the users, allowing them
to have control over the dispute. Parties themselves are
invited to log in, see the information, negotiate and can
evaluate if the agreement is fair. In that way, the degree
of informed consent can be increased. The fairness of
outcomes can also be ensured by a reviewer assessing
the agreements. Full integration would also reduce the
procedural barriers between the negotiation phases and
adjudication. As a consequence, the user experience
would be more seamless, and a judge can place more
targeted and timely interventions. This can lead to cost
savings and/or more effective delivery of justice to more
citizens needing it. without the involvement of policy makers, however.
New forms of cooperation are needed. Sharing data
An informal vote during the ODR 2016 conference (with adequate protection of privacy) with charities and
revealed that full integration is the preferred option other government organisations whose aim is to support
of most participants. Full integration is not possible people, could be a next step and foster full integration.
5.2 Pre-trial ODR product life cycle, users need to be made aware of
ODR can also be positioned as a separate pretrial this alternative existing. So marketing costs will be
phase. Here, an ODR platform facilitates settlements higher. Will pre-trial ODR be financially feasible for
and possibly mediation and arbitration. If the case both the producer and end-user? In this scenario,
fails to be resolved by the ODR interventions, a party the courts would not be able to claim the successes
can bring the case to court. This is an online ver- of the pre-trial ODR and would not likely to take
sion of current mediation and ADR programmes. An ownership of it.
example of this is the ACAS54 mediation procedure for
employment cases in England. 5.3 ODR as competitors to the courts
ODR systems can also be used to replace court inter-
This method of introducing ODR in a pre-trial phase ventions. Consumer arbitration schemes, specialized
would be easier to implement and transition from. It tribunals outside the court system, and consumer com-
would help courts affected by budget cuts, reducing plaint systems built into e-commerce platforms, give
the number of cases that come to courts. Although plaintiffs an alternative path to justice. Unless they are
having a comparative advantage in terms of finances, dissatisfied with the outcome, they do not need the
there is a possibility that skepticism can occur. How courts to enforce their rights.
are individuals convinced that ODR is an authorita-
tive system? With ODR being in a growth stage of a ACAS Performance Management Conference May 2016.
54
ODR as a competitor to the courts would substitute the

current methods and serve as a judicial system within
itself. A sustainable business model would be needed.
The system would more easily improve by customizing
the procedures specifically to meet the needs of the
parties. ODR as a competitor would bring more to the
court in a shorter amount of time.
This alternative also requires rethinking the entire

model of a court. What constitutes as a court? Is a
court a procedure, a process, or does it adhere to spe-
cific location? This must clearly be defined to remove
the fear of the unknown amongst users. This could be
achieved by making ODR (and ADR) compulsory in cer-
tain categories of cases, but that would require moving
cases from courts to this alternative. This method of
implementation would compete with the courts, but
also with the lawyers.
5.4 ODR platforms as a marketplace On the other hand, the ODR marketplace, although
for legal and adjudication services presented as global, is Western designed. How to
The European Commission’s system for consumer ensure that different stakeholders have a voice in
dispute resolution is an example of a platform that is designing the ODR systems/procedures? And how to
set up as a marketplace for ODR providers, with incen- build the ODR reputation and quality that is beneficial
tives for complainants and defendants to come to the for the public as well as the private sector?
platform. It is an ambitious Europe-wide system. The
system enables a complainant to do an intake, diagno- Finally, the ODR marketplace option should address
ses the conflict and then notifies the other party of the the submission problem: what if both parties cannot
claim. The parties then have 30 days to agree on the agree on an ODR provider? In that case, a choice has
dispute resolution panel. If they agree, the complaint is to be made for them. Or no ODR option would be
sent to that body which deals with the complaint. available at all.
The ODR marketplace option could benefit the provid-

ers and the users. It enables options that go beyond
the mere focus on profit, embracing the justice aspira-
tions and the public good. The marketplace fosters co-
operation, grants a wider selection of service providers
and builds awareness about ODR and justice needs.
Complaint Agreement Dispute handled Outcome of

submitted on dispute by the dispute the procedure
resolution body resolution body
Your complaint form You have agreed with the The dispute This is the outcome
has been submitted other party which dispute resolution body that the dispute
resolution body will handle is handling resolution body
your dispute your dispute has reached
READ MORE READ MORE READ MORE READ MORE

6
Discussion:
Contours of an access
to justice deal
“In due course,

in my country, ODR will
be an integral part of
the going digitalisation
process. It is absolutely
necessary for the
survival of the justice
system in the UK.”
- Lord Justice Fulford
This report focuses on access to justice for individual a low access equilibrium. A procedure that is more
citizens. They need courts, or another form of adjudi- accessible will lead to more court cases. It will also
cation by a third party. Judges tend to be highly ap- strain the legal aid budgets, as well as the funds to
preciated when they finally have time to assist people be allocated to courts.
to arrive at fair outcomes. Too often, people needing
access to justice get stuck, however. The trajectories What is new, is that leading judges in many countries
via initial advice, contracting a lawyer, bargaining for now publicly state that the procedures used in a court
a solution and moving through a multi-layered court of law are not good enough. They are ready to take
system are too complicated. They can take too long action (2.4). Online dispute resolution may be part of
and are often too costly. Only very persistent people the solution.
get it done. Instead of recovering from the most dif-
ficult moments in their relationships to others, many This report contains insights and best practices on
people lose control and feel stressed, not being able to how courts can implement ODR. The benefits of ODR
achieve a fair and workable outcome (Section 2.2). can be huge. Courts can become far more acces-
sible for the 80% of individuals who need them with
Everywhere, courts can be seen innovating their frequently recurring problems for which a standardised
services. Alternative forms of adjudication are being justice journey can be designed (Section 3.2). There is
developed. But by and large, these innovations do not the promise of more fair outcomes and processes (3.3),
scale beyond pilots or a few jurisdictions (2.3). Courts with a more focused and fully human interaction with
tend to be overburdened with information and are judges and (legal) professionals (3.4). Financial sus-
struggling with ever more procedural complexity. tainability of these court services, with citizens paying
for most of them, is possible as well (3.5). Partnerships
In the current institutional set up, courts and govern- between court systems and cross border cooperation
ments tend to have perverse incentives to stay in can increase the quality of outcomes (3.6).
Discussion: Contours of an access to justice deal 89
The costs of Making it happen requires more than introducing yet

another piece of legislation or giving the odd subsidy.
designing and Somehow, the many big and small barriers to really
innovating our court procedures have to be overcome.
implementing ODR What we want to explore is how a deal between major

stakeholders achieving this, or at least a shared vi-
are low compared sion, could look like. Building on the findings above,
we will sketch the contours of such a deal, as a basis
to the IT budgets for discussion. Most of the elements of it are present
in some legal systems, so they are not entirely new.
of courts They need to come together somehow.
6.1 Elements of an access to justice

and dropping (Section 4.2). It is mostly the institu- covenant
tional barriers that keeps citizens and their courts Joint goals can be very motivating. The justice sector
away from 100% access to justice to well-funded and has often left objectives implicit, or used goals that are
independent courts. self-referential. Court strategic plans have tended to
promise independence, accountability or high quality
Most reports end with recommendations, perhaps access to justice. There is now a trend towards explicit
directed to a Ministry of Justice or to politicians goals for justice systems and court procedures, as seen
responsible for the court system. In the conclusions of in the highlight below.
this report, we will not move in that direction. Innovat-
ing court procedures, and reaping the full benefits of Goals have to be operationalised and measurable.
modern forms of dispute resolution, is complicated. So efforts are under way to measure access to justice,
with an increasing focus on how users of the justice criminal justice or small claims, but to provide 100% ac-
system experience procedures at courts and other cess to justice for the 5 or 10 most frequent problems as
dispute resolution processes.55 Just as access to health experienced by citizens.
care is a very general concept, which requires very
different approaches for people with the flu, malaria Stakeholders could work on more detailed terms of
or heart failure, access to justice goals become much reference for each procedure.56 For separation, the
more meaningful if they are specified for specific impact on children is of paramount importance. But
justiciable problems. In the vast research on paths to parents also need to reorganise their lives: their com-
justice, the following access to justice issues always munication and networks of relationships, housing,
surface as being most urgent for individual citizens: finance, work and integration of new partners. Good,
fair solutions for this are needed, with parents being
• family disputes (including separation, led to agreement, instead of disputing contested
domestic violence) issues. Employment disputes should facilitate a good
• violent crime (robbery, assault, sexual assault) transition from job to job, with all outstanding issues
• employment disputes settled. Different goals could be set for each problem
• neighbour issues type. For objections against fines for traffic violations
• debts an obvious goal would be to maximise compliance,
• land use and ownership (in emerging economies but also to protect a citizen acting in good faith
and post-conflict countries) against automated and standardised systems. What
• personal injury (including medical negligence) are desirable outcomes and impacts of each proce-
• theft dure? How fast are outcomes needed? Who needs to
• protection against police conduct and use of be heard and what issues should get most attention?
government powers (including detention) What range of costs for the entire trajectory is ac-
• consumer complaints about goods or services ceptable as a standard, and what can be sustainable
delivered (more prominent in middle and high in exceptional situations? Our experience at HiiL with
income countries) this is that experts can develop such terms of refer-
ence without much difficulty.
Each type of problem requires a different type of treat-
ment. The trend in courts and online dispute resolution 100% access to justice requires a demand led approach,
is clearly to focus innovation on procedures regarding where access to justice is no longer restricted because of
particular types of disputes and crimes. Specialisation is limited capacity or funding for the legal system. This is a
needed and generally works. So the way forward is prob- huge issue for ministries of justice and ministries
ably not to work on broad categories such as civil cases, of finance. How could this ever be acceptable?
The answer is suggested by the way governments have
ensured that other essential goods are delivered and
paid for. 100% access to high quality water, housing,
health care, electricity, telecoms or passports can only
Goals for justice systems 5. People benefit from a civil justice system that
and court procedures values the well-being of those who use it
6. People can be confident that the civil justice
“A justice system that contributes positively to a flour- system is built on and continuously informed
ishing Scotland, helping to create an inclusive and by a solid evidence base58”
respectful society in which all people and communities
live in safety and security, where individual and col- “Sustainable Development Goal 16: Promotion of
lective rights are supported, and where disputes are peaceful and inclusive societies for sustainable
resolved fairly and swiftly.57” development, the provision of access to justice for
all, and building effective, accountable institutions
“NOW, THEREFORE, BE IT RESOLVED that the Con- at all levels.”
ference of Chief Justices and the Conference of State
Court Administrators support the aspirational goal of
100 percent access to effective assistance for essential
civil legal needs and urge their members to provide 100% access to essential goods:
leadership in achieving that goal and to work with their water, healthcare, electricity, telecoms
Access to Justice Commission or other such entities to
develop a strategic plan with realistic and measurable Governments that succeed in giving their citizens
outcomes.” universal access to such goods generally:
1. Ensure that the services are delivered by efficient
“Overarching Objective: The Australian civil justice providers in a sufficiently open market, who are
system contributes to the well-being of the Aus- stimulated to increase the quality of the services
tralian community by fostering social stability and and to keep prices low;
economic growth and contributing to the mainte- 2. Make their citizens pay the costs of use
nance of the rule of law. of these services;
1. People can solve their problems before they 3. Regulate the providers in order to ensure that
become disputes consumers are protected;
2. People can resolve disputes expeditiously 4. Subsidize delivery for people in the most
and at the earliest opportunity remote areas and for people most incapable
3. People are treated fairly and have access to pay for them.
to legal processes that are just
4. People have equitable access to the civil justice
system irrespective of their personal, social or The Strategy for Justice in Scotland Summary (Rep.). (2012).
57
Edinburgh: The Scottish Government.

economic circumstances or background Building an Evidence Base for the Civil Justice System (Rep.). (n.d.).
58
Australian Civil Justice System.

be guaranteed by countries that moved to a public/ Like other actors in the economy, courts will only
private delivery model with some market elements, as introduce new procedures if they have the power to
seen below. do so and can benefit from it. The power to design
legal procedures can be transferred to the courts
The justice sector has a long tradition of delivery by (see Section 4.1), just as hospitals and doctors are
public/private cooperation. State-funded courts, the ones who develop the best possible treatments
private sector lawyers and NGOs all have a role in de- for diseases. This can build on a trend where judges
livery. Moving towards the model that is best practice already do much more than rule following when they
for other essential goods would position courts as have case-management powers. There is broad sup-
important, if not the primary providers of access to port for judges taking up a more active role in cases
justice. They should be stimulated to deliver more with individuals as litigants. Ombudsmen procedures,
useful services to citizens. Using new (ODR) technolo- mediation, arbitration and processes at informal courts
gies - just as public and private water companies also tend to have less formal rules. Such processes can
introduced countless new technologies to provide safe generate high user ratings, if they are sufficiently neu-
drinking water - courts would offer complete justice tral, transparent, guarantee procedural justice and are
journeys to citizens. based on best practices. Shifting the power to design
procedures over to courts is a logical next step.
The quality of access to justice can therefore be in-

The courts should also be able to benefit from better creased, and court delays can be reduced to zero. The
procedures. Like state owned telecoms companies, laws of economics predict more citizens will then be
hospitals or water companies, courts directly receive willing to pay for use of procedures. Commercial litiga-
the fees from clients. This is already happening in some tion, employment disputes, landlord/tenant conflicts,
countries. In the US, state court fees are sometimes conflicts with government agencies and consumer cases
paid in a court trust fund from which the courts are can thus easily be funded by the parties themselves. The
paid. Courts are already claiming a bigger say in the proportion of fees to be paid by each party can be fine-
schedules for court fees. It is generally accepted that tuned in such a way that both parties have sufficient
the extra costs of mediation and other additional incentives to settle and to prevent conflicts in the first
services are paid by users of the service benefiting place. For businesses and government agencies, these
from them.59 conflict costs are part of the costs of doing business. In
standard procedures for the most common conflicts, a
Many well functioning court systems see that their citi- complainant would then have to pay a fee comparable to
zens are willing to pay for effective procedures, with Aus- the price of a new smartphone or television.
tria as the leading example, where 100% of court fees
are recovered from users, and most people can afford Subsidies for some people in some court procedures
to pay the fixed fees of lawyers (Section 3.5). Financing will still be needed. We need good solutions for poor
procedures, including the legal services needed, from user defendants in murder cases and other high impact
fees can thus be another element of an access to justice crimes. Adding legal costs in debt restructuring pro-
deal. ODR can reduce the costs of each additional case to cedures for individuals does not always make sense.
a level where courts can welcome each additional client, Children need protection, and cannot pay costs of
instead of seeing him as an extra burden. court intervention.
In such a system,
a market for
innovative
procedures would
be created.
Reynolds, C., & Hall, J. (2011). Policy Paper - Courts Are Not Revenue
59
Centers (Rep.). Conference of State Court Administrators.

Providers of online procedures are allowed to offer If the design is done by the courts and other suppliers
their innovative and customer-friendly procedures to of procedures, laws of procedure are still needed.
courts, or partner with courts, and try to market pro- Procedural laws would define the general principles
cedures jointly developed to other court systems with and procedural safeguards. The ministry of justice and
similar case-profiles (Section 3.6) parliament could set (or certify) terms of reference for
the procedure. They would still determine the substan-
An element would also be that courts offering proce- tive laws to be enforced and applied by the courts.
dures to citizens face some competition and that citizens
seeking redress are offered choice. They can choose The regulatory role of the state would also include
between - for instance - an adversarial procedure and monitoring the level of court fees60 and ensure protec-
one focusing on problem solving by working on a fair tion of the users of court procedures. More active
agreement. Such competition already exists to some monitoring of the quality is needed than is currently
extent in the form of specialised tribunals, ombudsmen happening through appeals system, which only moni-
procedures or administrative law procedures replacing tors whether the rules are followed. All goals and terms
criminal procedures in courts. For users, these proce- of reference will have to be safeguarded, ensuring a
dures are an alternative to going to court. The providers high quality user experience. A legal procedure should
of these alternative procedures are usually created by not be something to be frightened about, not for the
legislation, however. They are often bound to similar plaintiff and not for the defendant. Courts will always
strict rules of procedures as courts and cannot freely have the task to impose sanctions that deter people
use the fees they collect from citizens. and deliver retributive justice. But going to court
should be safe, and lead to an experience of a fair,
More innovation and better quality can be expected if effective process, with overseeable financial risk, for
outsiders, such as suppliers of ODR platforms, would everyone involved.
be allowed to compete with courts as well. They could
get the right to “challenge” the current procedure. Lawyers should also be party to this deal. The volume
England and the Netherlands now allow groups of of cases going to court would increase, and many
citizens with an innovative approach to express an clients would still prefer outsourcing to lawyers. New
interest to run local services. They can challenge the procedures are also likely to be hybrids with many
local government. In December 2015, the Dutch parlia- forms of human assistance. Roles of mediators, settle-
ment asked the government to open a challenge to the ment experts, arbiters, forensic experts, early neutral
current legal procedure for divorce, which a majority evaluators, damages assessors, reviewers and provid-
in parliament sees as enhancing conflict. Tendering ers of complicated legally sound solutions are already
procedures for certain types of conflicts, or offering performed by lawyers. Lawyers found it not difficult to
a particular court a license to operate for a limited
number of years, would be alternative ways to create
incentives for improving quality. 60
Eaglin, J. M. (2015, September 30). Why Courts Need Guidance on
Imposing Fees and Fines.
Contours of an access to justice deal
1. Goal 100% access to justice for family justice,

then employment justice, etc.
2. Ministry of justice and parliament set concrete
goals and terms of reference for each procedure
3. Courts obtain freedom to design, buy, implement
procedures; and to set and use court fees
4. Suppliers of innovative (ODR) procedures can
challenge courts and get access to market
5. Complainants get fairness quickly, high quality
justice experience, pay lower costs
6. Defendants do not need to fear procedure,
pay fair share (as costs of business)
7. Lawyers litigate less, serve more clients,
move to higher value services, relax their own
regulation, scale up
8. State monitors, pays less in subsidies, more
satisfied citizens, conflicts solved, growth.
make a business from these new roles, in which they The work would become less technical and perhaps
generally add more value. In new procedures many of more inspiring. Supreme courts and proceduralists at
these neutral roles are needed, and judges cannot take appeal courts and universities, would also transition
up all these roles themselves. to new roles. Instead of waiting for decades for high-
est courts to change the rules, courts will adapt their
6.2 How stakeholders would benefit and procedures quickly and work more evidence based:
what would they lose? what works for the problems of citizens will become
Every deal is a trade off. What would be in it for each the most important criterion.
of the stakeholders? Ministries of justice and ministries
of finance would not be faced with uncontrollable Lawyers working for individuals will see their markets
budgets for courts, legal aid and prosecution anymore. expand and will develop new types of services. It is
They would not need to restrict access to justice, as not difficult to find lawyers who want to participate
they currently try to do by increasing court fees, dis- in innovative procedures, not least because working
couraging the use of courts and not upgrading court for individuals as a lawyers is not an easy business.
procedures. They would help society to oversee a court So this group of lawyers is likely to gain from an
system that would gradually deliver more quality, at access to justice deal. Lawyers specialising in litiga-
lower cost for citizens and with less risk for the state tion would perhaps fear that they would lose the
budget. Ministries will have to organise the monitor- opportunity to earn big money from assisting clients
ing and supervision of the procedures delivered by during lengthy court procedures with many stages
courts and other suppliers. This may be risky for them, and appeals. Efficient, online procedures, with clients
because they in a way accept more responsibility getting most of their legal information and guidance
for the quality of access to justice. Independence of from the system, would diminish the need for these
courts, of course, would be an issue here, and should litigation skills. Lawyers would perhaps even see
be carefully safeguarded. So direct monitoring by the their monopoly erode, because designers of innova-
ministries is perhaps not the best solution. tive court procedures would try to get procedures
Members of parliament and legislation professionals at certified for which no lawyer is needed.
the ministry of justice would see their work change as
well. Instead of preparing subtle amendments in de-
tailed rules of procedure, they would work on general
principles and help to set goals and terms of reference.
The organised bar is often seen as a major barrier to valuable and more fair outcomes to citizens. They
innovation, but we saw that this is also a matter of would no longer face major backlogs and be overbur-
attitude and how lawyers test new developments by dened, because they can expect extra income from ex-
applying rules rather than investigating effectiveness tra cases which allows them to scale up their resources.
(Section 4.4). Lawyers could gain even more from a They can also adapt their procedures to make them
deal if they were to revise the rules under which they more efficient. Financially, and in how they process
operate. Currently, lawyers have many rules that prevent cases, they would become more independent. But
them from engaging outside investors and cooperating they would also have to become more entrepreneurial,
effectively with other disciplines. They are educated in a facing the possibility that other courts or providers of
standard way, with a focus on learning the law and how legal procedures will offer better procedures.
to apply it. If these rules were to be relaxed, law firms
would be perfectly positioned to develop innovative Citizens are the ones who can gain most from this deal.
procedures and challenge courts to start using them. As litigants, they would be better served. As taxpayers,
they would have to spend less state money on courts.
Would courts and the judges working in courts benefit And around them, they would see conflicts being
from such an agreement? They would be faced with resolved faster, leading to more fairness and better,
change and uncertainty, but the benefits could be more peaceful relationships.
substantial. Judges and courts would deliver more
Acknowledgements
We thank all the individuals that have contributed to
the trend report. Your support has played a key role
in our success in making Online Dispute Resolution
a catalyst for change and a torch bearer for access
to justice. We appreciate all your effort in taking the
time to provide us with your expertise, insight and
innovations. It is only by working together that we
can revolutionise legal systems and realise the full
potential of ODR.
We hope that these findings have given pause for

thought, and will serve as a stepping stone to fully
implementing ODR into courts and court systems.
Thank you to all the sponsors who provided the finan-
cial support needed for us to make the ODR conference
possible and continue our mission. We appreciate your
trust in believing we can make a difference in the cur-
rent justice system in the near future. A special thank
you as well to the following individuals;
Contributors
Nicole Visschedijk
Willie Pienaar Glenn Rawdon
Meredith Brown
Darin Thompson Petros Zourdoumis
Jainarain Kissoon
Kiat Yi Goh Shannon Salter
Tanja Dompeling
Roger Smith Joyce Raby
Dory Reiling
Chief Justice Scott Carr
Willy Mutunga
Lord Justice Fulford
Colin Rule Ethan Katsh
Peter Van Den Biggelaar
Pablo Cortes Zbynek Loebl
Chittu Nagarajan
Lisellote Maas Jeffrey Aresty
Laura Dowson
Jan Coos Geesink
Sherry MacLennan Aura Esther Vilalta
Richard Chilver
Chris Sherwood Jim Leason
Orna Rabinovich
Janet Martinez Julie MacFarlane
David Bilinsky
Arno Diederen Vikki Rogers
David Larson
Evert Verhulp
Joost van Buchem Eiichiro Mandai
Monica Rands Preuss
Sue Prince Chief Justice

Sundaresh Menon
Jan Moerland
Alistair Ross Agustin Madrid Parra
Daniel Rainey
Rik Visser Lord Justice Briggs
Nancy Welsh
Leah Wing
Léonard Sellem Judge Joyce Aluoch
Graham Ross
Nicolas Vermeys Erik Boerma
H.E. Al Majid
Tom Wynne-Morgan Candice Lee
Emile de Wijs
Athaliah Lesiba Molokomme Lord Justice John Gillen
John Simpson
Sponsors
Modria
Founded in 2011 by Colin Rule and Chittu Nagarajan
from the technology that helped eBay and PayPal
Thomson Reuters resolve millions of disputes, Modria is passionate about
Thomson Reuters provides professionals with the intel- helping companies deliver fast and fair outcomes to
ligence, technology and human expertise they need to any size and type of dispute. We are rooted in deep
find trusted answers.We enable professionals in the expertise and proven technology.
financial and risk, legal, tax and accounting, intellectual
property and science and media markets to make the
decisions that matter most, all powered by the world’s
most trusted news organization.
Achmea Rechtsbijstand
Achmea is a leading insurance company based in
the Netherlands. They provide their customers with
Health, Life and Non-life insurance. Achmea serves
about half of all Dutch households.
The Municipality of The Hague

The Hague municipality is a proud to create an environ-
ment for innovation and legal development. Internation-
ally known as the city of peace and justice, it is home to DAS Rechtsbijstand
central tribunals and institutions such as the Interna- DAS is the market leader for legal expenses insurance.
tional Criminal Court, the International Court of Justice, It is part of a global insurance group, which gives the
Eurojust, Europol, ICTY/ICTR and many more. size and strength to offer in-depth support, specialist
teams and an impressive portfolio of products and
services.
Authors
Maurits Barendrecht Jin Ho Verdonschot
Frances Singleton-Clift Jamie Poeteray
Gintare Petreikyte Filippa Braarud
Previous Trend Reports

Trend Report 1
Trend Report 2
Trend Report 3
Contact information
Prof. Dr. Maurits Barendrecht, Research Director Dr. Jin Ho Verdonschot Director
HiiL Rechtwijzer Technology
T +31 70 762 0700 T +31 70 762 0700
M +31 6 4292 1812 M +31 6 250 36 434
E maurits.barendrecht@hiil.org E jinho.verdonschot@hiil.org
W www.hiil.org W www.hiil.org
Bezuidenhoutseweg 16A, 2594 AV The Hague Bezuidenhoutseweg 16A, 2594 AV The Hague
P.O. Box 93033, 2509 AA The Hague P.O. Box 93033, 2509 AA The Hague
The Netherlands The Netherlands

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HiiL TREND REPORT IV

ODR and the Courts:

A breakthrough agreement between stakeholders

gate the system. Research shows that parties highly

Legal professionals have developed scores of alterna-

Resolving governed and financed by ministries of justice and

differences to justice deal between the major stakeholders that

effectively, leading leading experts in online dispute resolution and in-

cation technology. increasing procedural justice, outcome justice and

“There are barriers

2.2 Courts try to improve their

a procedure With the exception of a few specialised courts, court

leading to a fair intimidating, difficult to understand and not always

Fairness of judgements 5% 43% 27% 10% 15%

Use of new technologies 8% 39% 21% 7% 25%

Execution of judgements 5% 39% 29% 10% 17%

Easily understood judicial decisions 5% 38% 32% 9% 15%

Straightforward proceedings 4% 38% 30% 9% 19%

Cost of proceedings 2% 24% 32% 16% 26%

Length of proceedings 2% 19% 40% 25% 14%

That this is not necessarily true in the Dutch legal

Victims and suspects are entitled to procedural justice,

Family Law Tribal-State Ambitious individual judges and entrepreneurial courts

In the space of civil justice, courts have attempted to

Counselling and parenting courses Courts in Uganda

is not a very as a fundamental failure of access to justice.23

Other court leaders in the UK are expressing similar

Lord Justice Carloway gave recommendations for

Topics for which specialised procedures, courts, tribunals or ombudsmen exist:

Family Commercial Tax Juvenile crime

“We need to look

have to streamline College of Law. Almost single handedly, he developed

the interaction with interviews. Non-technical authors from the courts,

clients themselves. editors can use the program to develop web-based

See the reports and literature on the website of

https://representingyourselfcanada.com/ set up by leading scholars

dispute avoidance The next step in a procedure is to involve the other

is thus one of a ask a court for a decision. Paths to justice surveys

fully integrated resolved by agreement, and in only 5-10% a judge or

Explore family needs Work together Ask mediator for help

1. Information, formulas, calculation tools (certified by government)

CASE STUDY: Next, the other party is invited on Rechtwijzer. After

Dimensions of justice To what extent can

being requested, and to give a short reason for the

obtained through online dispute resolution providers is that users expect

informed consent? is an incentive for professionals working on the plat-

Fast Track Resolution. (2015).

Case-disposition time standards Yes

Another cooperative process that may be sup-

European judicial systems – Edition 2014 (2012 data): Efficiency and

quality of justice (p. 85, Rep.). (n.d.). CEPEJ.

WJP Rule of Law Index. (n.d.).

Nyangara, D. (n.d.). Funding Civil Justice in the Age of Fiscal Austerity:

The Case of Zimbabwe. World Journal of Social Sciences, 4(2), 149-159.

Case Study: Jin Ho Verdonschot,

The Rechtwijzer ODR system is funded by user fees.

This includes the intake and dialogue/negotiation

and the Role of Simplified Procedures Erasmus Law Review.

with the parties, either online, or through whichever