Authors:LAG
Created:2014-12-01
Last updated:2023-09-18
Dutch solution for litigants in person?
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Administrator
Finding cheap and affective alternatives to legal aid funded services is in the minds of many policy makers at the moment. It is clear that the government has a problem, as the courts are increasingly clogged up with litigants in person (LIPs). A recent report found that up to two thirds of cases in the family courts involve at least one party without legal representation. Online services are seen as a potential solution and the Dutch Rechtwijzer system is being touted in policy circles as a possibility.     The first version of Rechtwijzer now in use in the Netherlands, was designed in response to a budget review of legal aid in 2008 by the Dutch government. It provides an interactive experience for the user to guide them through the legal separation process, for example it uses a slider for the user to indicate how “messy” they believe the separation from their partner might be and a maintenance calculator tool.     A second version of the program is being piloted. It is designed to bring the two parties to mutually agreed solutions. Issues such as domestic violence, which mean the system is not appropriate to use, are flagged-up early in the process and taken out for resolution in the courts. An adjudicator, available either on-line or for a face to face meeting, can be brought in if the parties cannot reach agreement.     In both versions of the system, for a separation to be finalised the separation plan, which Netherlands justice system requires, has to be reviewed by a lawyer before it is agreed. The Dutch legal system does not permit a legal separation to be completed unless a lawyer is involved at least in this final process. This ensures that the agreement reached by the parties is fair and legal. This is an important difference to England and Wales. In the Netherlands if a couple want to separate and are above the means test for legal aid, they have to pay for some lawyer involvement in their case, even if it is only at this final stage. The Dutch system is also an inquisitorial one and so it is usual for only one lawyer to be involved in any adjudication or review, which saves costs for the parties, but would be difficult to adapt to our legal system.     A significant advantage of Rechtwijzer is its cost, a maximum of around £800 compared to £4000 for a conventional separation in the Dutch system. For Rechtwijzer each case costs £72 to administer, this includes a licence fee to the software developers and the rest is made of costs to third parties, such a fee of £288 for an adjudicator.     It appears to LAG that the success of Rechtwijzer hinges on human interventions from lawyers which are cheaper to purchase because of the efficiencies the interactive program brings. In our adversarial system these might need to be in the form of independent bespoke advice for both parties, but it should be possible to design such a system. However, we would suggest it would not necessarily stem the rise LIPs, as this is being driven in large part by the cuts to civil legal aid. An English and Welsh Rechtwijzer would have to free or heavily subsidised for it to work, otherwise people will continue to pitch-up at court because they cannot afford to do anything else.