DIGITAL FAMILY JUSTICE: The journey from ADR (Alternative Dispute Resolution) to ODR (Online Dispute Resolution)

DIGITAL FAMILY JUSTICE from ADR to ODR: the journey from traditional court based via Alternative Dispute Resolution towards Online Dispute Resolution in Divorce.

This proposal has been prepared by members of the Family subgroup of the RCSL Legal Professions Working Group and colleagues. The group 's most recent publication, "Delivering Family Justice in the 21st Century" in the Hart Onati Series, 2015, considered  the changes associated with austerity in a neo liberal policy landscape. We now wish to focus on how key aspects of these changes are providing the context for facilitating the rapid emergence of Digital Family Justice.

The policy context remains dominated by the rolling back of state responsibility for financial support for legal help in many family justice systems, which now find themselves under pressure in the face of increasing demand. As the period of austerity continues, with cuts in public and private resources, parties in family disputes are becoming more likely to turn to the help of volunteers or public legal education through advice services and websites. Where cases still go to court there are pressures for them to be dealt with more quickly, without recourse to expert advice and support. This may affect the quality of judicial decision making. There are attempts to reduce the number of courts, and to handle cases remotely with online filing of papers, and video conferencing with witnesses. We noted also the way the role of the legal profession is changing. A narrower range of traditional casework is being carried out by the traditional legal professions, and new forms of more specific task- focussed activity are being carried out not only by lawyers, but also a range of other occupational groups in attempts to cut costs. Professional boundaries are more permeable. Lawyers may find themselves arbitrating or mediating for clients to avoid court costs, rather than advising or representing. Non lawyers are being drawn into giving low- cost legal advice. But a new group of ‘decision- makers’ are appearing in the rapidly developing world of digital justice.  For example, the interactive divorce website Rechtwijzer in the Netherlands added a decision- making option for use where agreement cannot be reached. And in December 2016 HIIL, the co-developer of the Rechtwijzer, won the government's competition to change the divorce system, with a proposal in which the role of lawyers is reduced and partly replaced by a digital track.

The distinction between legal representation, legal advice and legal information is becoming increasingly blurred. For example, in England, non lawyer volunteers are appearing in courts to support unrepresented litigants pro bono in family cases, and can be drawn into giving legal information which comes close to being advice. The distinction is hard to make, and is dependent on the context. For example, the line between helping an unrepresented party to fill in a form, versus advising on  which form to fill in and what to say on it, is hard to draw in the heat of the moment with distressed men and women about to walk into a court hearing about access to their children . Similar developments in response to financial pressures can be seen in other professions, for example medicine ,where nurses are undertaking activities formerly restricted to doctors, such as prescribing drugs, and clinical decisions are being made  jointly by medical expert and patient  aided by interactive diagnostic websites. Whether such changes are driven by economic constraints or ideology, we are cautious. It is difficult to find new options which are cheaper, quicker and better... often only two of these three objectives can be met.  We are concerned that vulnerable men and women and children involved in family matters which are serious enough to lead to family separation and cannot be resolved by the parties alone, should be able to access appropriate support in finding fair and informed settlement.

Our abiding concern is not just the technical formulation of family law, but family justice in practice. Public levels of education have risen, deference to the legal system has decreased, and the www gives wider access to unlimited information. But in family matters information is not enough. Parties need advice on how to use information when making decisions. There is need for caution and careful evaluation as we turn to the recent policy focus: the development of digital process in family cases. The use of interactive websites epitomised by the Dutch Rechtwijzer is increasing with similar developments in British Columbia and the planned development of an Out of Court Digital Pathway in the UK. These changes are accompanied by the development of online information management, mediation and court hearings, and video conferencing in a number of jurisdictions.

We note a common direction of travel towards increased personal responsibility and privatisation in decision making. Instead of the traditional end- to- end all round legal service,  in England a lawyer may now offer for a reduced fee what is called "unbundling", (ie a brief limited to certain parts of the case, or particular tasks to be done). While this option is cheaper for the client who may take over some of the work himself, there are risks associated with the lawyer not knowing what he does not know about the matter, and the client failing to understand the limits of the lawyer's intervention. The lawyer may no longer take on the central role of the traditional lawyer working face to face with the individual client on the totality of their case. There may be gains in terms of increased personal acceptance of responsibility and wider acquisition of dispute resolution skills. But there are risks associated with the failure to address the impact of power imbalance between parties, and limited access to optimum results where there is no skilled advice to help in securing the best possible outcomes for all concerned including children. We must also consider the impact of any reduction in the visibility of clear social norms as embedded in an enforceable legal framework, which may be of even greater importance in more diverse societies.

Digitalisation is becoming the policy of choice for a number of reasons. There are clearly substantial benefits to be obtained from more sophisticated use of IT in the running of court business. The use of interactive websites has made great strides in other areas of government activity, for example in enabling clients to apply for social security benefits online thus cutting administrative costs (though in many cases personal support is still needed). But there remains a serious difficulty in trying to facilitate online interaction when it is not between an individual and government, but between two parties who are in dispute. A computer cannot interrogate evidence, or challenge disclosure, as a court can do. A website can provide accurate and relevant information, but it cannot help the user decide how to respond to it. Recent research in London (Denvir C 2014 "What is the net worth?" UCL PhD) set up a controlled experiment using students with good computer skills, to test a new interactive website designed to deal with legal problems. They were given the example of a landlord and tenant dispute, a common problem for students in many jurisdictions. The students were easily able to use the site to find the information they would need for their case. But when it came to making a decision on what action to take, the computer could not help them. The most common result was that they telephoned their parents to ask for advice, ie they needed a trusted human. Interestingly the Rechtwijzer will not be continued by the government. The cooperation between HiiL and the Dutch Legal Aid Board ends and instead the market will restart the Rechtwijzer. Apparently there were not enough divorcees that used the Rechtwijzer and thus it was not cost-effective. Important lessons might be drawn from this experiment with regard to the working of other online dispute resolution tools. But austerity is not the sole stimulus to developing digital procedures. There is a strong body of opinion , for example in the Netherlands which regards digital dispute resolution as superior to other forms in quality as well as value for money.

We hope to examine these issues, and work towards a better understanding of the benefits and limitations of this new digital phase in the delivery of family justice.

16 papers have been proposed by members of the group from 12 countries. We could welcome additional participants, and expect members of the University of Deusto Faculty teaching the masters courts on family intervention and mediation to join us for a session.

We envisage four sessions, organised into two parts. Part 1, Digital Family Justice: the Context, will focus  on the shrinking role of the state in family justice, and the changing roles of lawyers and others in helping separating families reach agreement setting the stage for change.  Part 2 Digital Family Justice: the Express looks at the development of online services and the rapid journey from ADR to ODR reminiscent of an express train speeding towards family justice online.

PART 1    DIGITAL FAMILY JUSTICE: THE CONTEXT

Session1. Self help and Private ordering: the shrinking role of the state in family justice

In the first session Rachel Treloar will talk about the move towards private ordering and self help in Canada. Verda Irtis will tell us about how the role of family courts is changing in Turkey. Professors Malgorzata Fuszara and Jacek Kurczewski will talk about the public and private expression of family disputes in Poland.

Session 2. Changing professional boundaries: lawyers and mediators in family justice.

The first two  contributors  will talk about the development of  legal advice among non lawyers in England: Lisa Webley will talk about  students acting as supervised lawyers in volunteer clinics, and Rosemary Hunter will talk about other non- lawyer legal advice from mediators and lay advisers in court known as McKenzie Friends who are not permitted to give legal advice. Barbara Willenbacher and Adelheid Kuhne will comment on the German position, and Teresa Piconto will lead a session with colleagues from Catalunia and the Basque Country.

PART 2   DIGITAL FAMILY JUSTICE: THE EXPRESS

Session 3. Online services: Benoit Bastard will discuss the use of IT in court management in France. Jane Mair will talk about the difference between the holistic approach of solicitors to their clients problems, compared with the way the new call centres use discrete elements in Scotland. Liz Trinder will describe the work of legal advisers assessing online divorce applications in the new Divorce Centres in England.  We then move to Australia. The development of online services there will be mapped out by Professors Belinda Fehlberg and Bruce Smyth, while Angela Melville (who has now returned to Australia after her term as SD in Oñati) will talk about the cross cultural benefits of video conferencing in Japanese Australian children cases in Australia.

Session 4.  Digital Family Justice: the arrival of the Express. Finally we will consider the rapid development of digital family justice, looking at both potential for benefit and also our concerns. Bregje Dijksterhuis from the Netherlands will presents the most famous of all family justice websites, The Rechtwijzer, describing recent lawyer concerns about quality of outcomes reached, the reasons why Rechtwijzer ended and the new proposals for the divorce system from HIIL.  Carol Rogerson from Canada will describe the progress of the adapted Rechtwijzer in BC Canada. We end with a contribution from Family Justice colleagues at the Ministry of Justice, London, on the development of digital approaches to Family Justice reform . Mavis Maclean and John Eekelaar will close with the question of whether access to justice still means access to court as set out in the ECHR.

The workshop will bring together the available information relating to online dispute resolution in Family Justice, stimulate the development of new research in the digital divorce field, and invigorate debates about access to justice, both what it means and how it can be improved.

The group has worked together for many years, with new contributors at each stage, and is experienced in getting the most out of the Workshop experience, which is without parallel in terms of enabling people from different disciplines and jurisdictions to communicate and stimulate each other. We have always aimed to respond to IISL hospitality by producing as quickly as possible an account of the cutting edge work done.  We have published a number of books in the Onati series: Family Law and Family Policy in the New Europe, 1997, Making Law for Families, 2000,Family Law and Family Values, 2005, Parenting after Partnering 2007, Managing Family Justice in Diverse Societies, 2013, paperback 2015, and Delivering Family Justice in the early 21st Century Family, 2016. We will discuss publication of this workshop at the meeting.