♫ Raise your hand in the air
If you believe the future had come now♫

Music, Lyrics and recorded by: Ty Bello.

“The future has already arrived. It’s just not evenly distributed yet” said the author William Gibson. Indeed when reading the recent blog post by the legal futurist Roger Smith “Law, Technology and Access to Justice” reflecting on the Dutch experiment with Rechtwizer 2.0 (the online divorce and separation service), one is reminded that rarely does the future appear as originally envisioned.

Rechtwizer was a game changer. It sought to help divorcing couples by providing initially “static” information on how to divorce and then in version 2.0, Online Dispute Resolution services. It did help hundreds of couples achieve a divorce. But Maurits Barendrecht of the Hague Institute for the Internationalization of Law stated that version 2.0 didn’t obtain more than 1% of the users going through the system. 

Roger Smith’s post reflects on any number of possible reasons:

1. Citizens do not want online supported resolution services;
2. Institutional funders – legal aid boards, ministries, courts and law firms – are not ready for online supported dispute resolution services;
3. The market can resolve the access to justice problem, so government is not needed and we, the Hague Institute for the Internationalisation of Law, failed to deliver.

It is important to reflect on each of these and realize that rarely does the future arrive as initially envisioned. Contrast a Tesla with a Model T as an example. The Tesla is a result of decades of development and thought and the exploration of several ideas, some of which worked and some which have gone by the wayside. Rechtweizer did take a different path from BC’s Civil Resolution Tribunal (“CRT”) and the Online Court proposed for the UK. Indeed, Roger Smith has advised that not a penny be spent on further ODR developments until the lessons can be learned from “the new global leader” – BC’s Civil Resolution Tribunal. The eyes of the world are indeed on us at the moment.

I would have to say we can adopt one lesson that Professor Smith noted in his blog – “The move to 2.0 [Editor: the adoption of ODR] was significant. It brought the fledgling programme into opposition with lawyers instead of, as did 1.0, potentially of helping them.”

This concurs with what I have been advocating from the beginning: that the CRT should seek to bring lawyers into the system instead of excluding them in s. 20. It divides the public into two groups – those who can use the system and those who could be using it but are prevented from doing so. It is lawyers who can feed the CRT many cases and assist its development. I think, and have always thought, that lawyers can help the system grow and become more effective at resolving disputes. I think lawyers can play a part in making the future appear by using the CRT to great effectiveness on behalf of their clients.

What lessons does Professor Smith draw? “Well, the Rechtwijzer team should not be too dispirited. They have set a standard which stands as one which others have to meet. The digital naysayers should not use the Rechtwijzer as an alleged example that proves either online advice or online resolution do not work.”

I don’t believe the future has come just yet – it just needs more time to become evenly distributed.