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Case: Tribal-State Joint Jurisdiction Wellness Courts

CASE

Tribal-State Joint Jurisdiction Wellness Courts

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Community Justice Services – Policy Brief / Case: Tribal-State Joint Jurisdiction Wellness Courts

Key fact and figures

Year of establishment	2006
Scope of service	Wellness court that serves as diversion for driving while intoxicated cases
Geographical scope	Cass County, Minnesota, United States of America
Legal entity	Tribal Court and State Court
Type of justice problems addressed	Public Safety
Regulatory embeddedness	Memorandum of Understanding between the courts. (For the first year, it was based on a “handshake” between the courts.) Both courts are exercising jurisdiction together.
Costs of services for citizens (average and range)	For every taxpayer dollar invested in the program, there is a $1.13 return after 5 years.” ^[1]
Average processing time	About 2 years

Background and History ^[2]

In 2006, the Leech Lake Band of Ojibwe Tribal Court and the Cass County District Court of the state of Minnesota, with the Cass County Probation Department and Minnesota Department of Corrections, entered into an agreement to create the multi-jurisdictional Cass County and Leech Lake Band of Ojibwe Wellness Court. ^[3] The first of its kind in the United States, the specialized wellness court’s jurisdiction is jointly shared by both the Tribe and the State and developed in response to the number of repeat-Driving While Intoxicated (DWI) offenders who were also members of the Leech Lake Band of Ojibwe Tribe.

Notably, these cases – which are criminal in nature – were previously only handled by the state court because tribes in Minnesota are generally without criminal jurisdiction. ^[4] But through this post-conviction, post-sentencing DWI court – available to both tribal members and non-members within the jurisdiction of Cass County– tribal and state court judges jointly preside over proceedings that focus on improving the wellness of the individual coming before them rather than meting out punishment. This voluntary program is open to individuals who are 18 years of age or older, have committed multiple DWI offenses, and have been determined to be chemically dependent. In addition, the program screens participants to ensure that they are physically and mentally willing and able to participate in the program and meet its conditions, such as willing to: undergo treatment, seek employment and/or pursue their education, and accept court sanctions for failure to follow through with the court’s expectations. ^[5]

Individuals who participate in the program embark on a journey over two years that encapsulates a people-centered approach to justice:

Phase 1 – Treatment Stage (3 months) – Participants undergo a chemical assessment and treatment program and attend court sessions every two weeks.
Phase 2 – – Transition Stage (minimum of 6 months) – Participants apply the recovery skills they learn to sustain sobriety and maintain individualized case plan and attend court sessions every two weeks.
Phase 3 – Living Well Stage (minimum of 12 months for felony convictions and 6 months for gross misdemeanor convictions) –Participants continue to abstain and maintain recovery and attend court sessions monthly. ^[6]

The mission of the Wellness Court is to reduce the number of repeat substance dependent and DWI offenders by using a coordinated team approach. ^[7] This involves the Tribal Court Judge, the County District Judge, the prosecutor, the defense attorney, law enforcement personnel, social services workers, probation and treatment specialists, who work together to break the cycle of substance abuse, addiction, and crime among selected non-violent offenders. ^[8]

Critically, court sessions are held concurrently in the Tribal and District courtrooms and connected by interactive videoconferencing. This gives clients the option of appearing in whichever courtroom is more convenient for them. Indeed, this close collaboration is evidenced by the fact the Tribe’s flag appears in the District courtroom – a direct result of this program.

The joint jurisdiction has infused the Tribe’s culture into the judicial process, which in turn has meant that tribal members who participate in the program can reconnect with and learn about their culture and traditions. Tribal member participants who were previously disconnected from their Anishinaabe traditions are reconnecting with their culture to great success. Spiritual healers have conducted naming ceremonies, sweat lodges, and talking circles all to further the healing of the participants. The partnership between the two courts and two sovereigns – the Tribe and the State – has also been credited with helping to heal the two separate communities.

Thanks to the success of the original court, the Leech Lake Band of Ojibwe Tribe has stood up additional joint-jurisdiction courts and programs:

In 2009, a Wellness Court for individuals charged with controlled substances was established with the Itasca County District Court.
In 2010, a related program was launched for juvenile delinquency cases for tribal youths who are eligible for diversion. This program includes traditional practices such as talking circles to serve the needs of the youth.
In 2019, a pilot family drug court for cases involving child protection issues (in either tribal or state court) was launched for tribal members and non-Indians living on the reservation.

Outcomes

The Tribal Law and Policy Institute has reported positive outcomes of both the Cass County & Leech Lake Band of Ojibwe Wellness Court and the Itasca County & Leech Lake Band of Ojibwe Wellness Court such as: families being reunited, driver’s licenses being reinstated, participants becoming employed or continuing their education, and abusive relationships ending. ^[9] In addition, participants have tens of thousands of documented days of sobriety among them and have been found to be significantly less likely to reoffend than non-participants. While the average rate of recidivism in the state of Minnesota stands at 60% or more, the rate of recidivism for participants of the Cass County & Leech Lake Band of Ojibwe Wellness Court and the Itasca County & Leech Lake Band of Ojibwe Wellness Court is 6.6% and 16%, respectively. ^[10]

In a 2014 study of the Cass County & Leech Lake Band of Ojibwe Wellness Court, researchers conducted an analysis and found that, over time, the program has the potential to result in significant cost savings and a return on its investment. ^[11] It found:

"The program costs $19,710 per participant. The benefit due to significantly reduced recidivism for program participants over the 2 years…came to $8,946. If these cost savings are projected to 3 more years (to 5 years), they could amount to $22,365 per participant, resulting in a cost-benefit ratio of 1:1.13. That is, for every taxpayer dollar invested in the program, there is a $1.13 return after 5 years. ^[12]."

Lessons learnt

In 2009, the Center for Court Innovation interviewed Judge Korey Wahwassuck, who co-launched the court when she was a tribal judge.^[13] In that interview, she described where the idea of the wellness court originated:

"In late 2005, Judge John Smith from the Cass County District Court and Reno Wells, who is the director of probation for Cass County, approached the chairman of Leech Lake Tribal Council to get a DWI court started. At the time Cass County was one of the most deadly counties for drunk-driving fatalities in the state. People were just coming back through that revolving door. A lot of the people who kept coming back were our tribal members. Cass County wasn’t having any success addressing their underlying problems. There was a general frustration among tribal members, not only because people were coming back through the system, but because there was a feeling that the state courts weren’t helping. The county was looking at starting a drug court, so Judge Smith approached the Band and said, “We’re going to do this and we can’t be successful unless we have your help. Will you partner with us?” This was one of those “right time, right place” sort of things, because I happened to be in the Tribal Council offices that day. It was before I took the bench; I was still a tribal attorney. As soon as the judge and the probation director left, the question was, “So what do they want to do to us now?” There was huge mistrust of the state system. It all gets down to that lack of understanding. I told the chairman that I thought it was a good idea because the drug court model works and it’s a great way for the Leech Lake Band of Ojibwe to start having a say in what happens to tribal members’ cases. Minnesota is a Public Law 280 state, and the Band has not yet enacted any criminal codes of its own, so all DWI cases are handled in the state court. Before we started our partnership, the Band had nothing to do with these cases. Basically the Band sat around on the sidelines and looked at bad results and continued to dislike the state system."

Judge Wahwassuck went on to explain that when both courts decided to move forward together it was originally done with a “handshake” and goodwill.^[14] While the Tribal Council passed a resolution in support of forming the joint court, they did not enter into a formal agreement for the first year. ^[15] And importantly, the joint powers agreement (reproduced at the front of the case study) that was signed in 2007 relied on the simple premise that both the Tribe and the County would exercise their jurisdictions jointly, on the cases that allowed them to, and towards a common set of goals. ^[16]

Judge Wahwassuck also explained how the model grew to a second wellness court with neighboring Itasca County in 2007. The Itasca County Wellness Court invited the Tribe to join a planning team from their activities and from there, their collaboration was born.^[17] Like the Wellness Court with Cass County, the Wellness Court with Itasca County operates with both the tribal and state judges jointly take taking the bench – each exercising their own jurisdiction – to work with both tribal and non-tribal members who pass through their program. ^[18]

She shared that the joint-jurisdictional wellness court has inspired other tribal-state collaborations within the state of Minnesota, while acknowledging at the same time that some tribes remain warry of sharing jurisdiction with state courts.^[19] But she explained that the these models can offer an important intermediate step for tribes still building their courts’ systems so that one day they can handle these case on their own. ^[20]

The success of the court has brought national recognition and interest. Both the Cass County & Leech Lake Band of Ojibwe and Itasca County & Leech Lake Band of Ojibwe wellness courts have won several awards, including the Harvard Honoring Nations Award, the National Association of Drug Court Professionals Cultural Proficiency Courage Award, and the National Criminal Justice Association Outstanding Tribal Criminal Justice Award. ^[21]

But more importantly, the courts are valued by the community they serve with successes continuing to be logged. ^[22] Individuals passing through these programs can experience better health outcomes, employment prospects, opportunities for stable housing, and – critically – family relationships. ^[23]

Authors

This case has been prepared by Maha Jweied, Pathfinders for Justice Advisor Fellow at NYU’s Center on International Cooperation

View References

^[1] Id.

^[2] Some of the background and history of this case study is adapted from Maha Jweied, U.S. Department of Justice & U.S. Department of the Interior Report, Expert Working Group: Native American Traditional Justice Practices (September 2014). The report also provides an overview of indigenous traditional practices in the United States.

^[3] A fuller history of the development of this court can be found at Korey Wahwassuck, The New Face of Justice: Joint Tribal-State Jurisdiction, 47 Washburn L.J. 733 (2008). The Memorandum of Understanding that created the multi-jurisdictional Cass County and Leech Lake Bank of Ojibwe Wellness Court can be found at http://ccllwellnesscourt.files.wordpress.com/2010/10/memorandum-of-understanding.pdf

^[4] Aaron Arnold, Interview: Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court, Cass Lake, Minnesota, 2 Journal of Court Innovation 405 (2009).

^[5] .S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016), citing Zil, Charlene E., Mark S. Waller, Adrian J. Johnson, Paige M. Harrison, and Shannon M. Carey. 2014. Cass County/Leech Lake Band of Ojibwe Wellness Court Walker, MN: Process, Outcome, and Evaluation Report. Portland, Ore.: NPC Research.

^[6] Id.

^[7] Maha Jweied, U.S. Department of Justice & U.S. Department of the Interior Report, Expert Working Group: Native American Traditional Justice Practices (September 2014); see also https://wellnesscourts.org/files/Joint%20Jurisdiction%20-%20Apr_%202019.pdf

^[8] See Cass County and Leech Lake Bank of Ojibwe Wellness Court, General Information, http://ccllwellnesscourt.wordpress.com/general-info/. A flowchart of how the process works can be found by visiting: http://ccllwellnesscourt.files.wordpress.com/2010/10/general-overview-flowchart.pdf.

^[9] Lauren van Schilfgaarde, Tribal Law and Policy Institute, Joint Jurisdiction Wellness Courts Presentation (2019).

^[10] Id.

^[11] U.S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016), citing Zil, Charlene E., Mark S. Waller, Adrian J. Johnson, Paige M. Harrison, and Shannon M. Carey. 2014. Cass County/Leech Lake Band of Ojibwe Wellness Court Walker, MN: Process, Outcome, and Evaluation Report. Portland, Ore.: NPC Research. (Fact Sheet available here.)

^[12] U.S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016).

^[13] Aaron Arnold, Interview: Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court, Cass Lake, Minnesota, 2 Journal of Court Innovation 405 (2009).

^[14] Id.

^[15] Id.

^[16] Id.

^[17] Id.

^[18] Id.

^[19] Id.

^[20] Id.

^[21] Center for Court Innovation Tribal Justice Exchange, Tribal Access to Justice Innovation, Leech Lake Band of Ojibwe Joint Jurisdiction Healing to Wellness Courts, available at: http://www.tribaljustice.org/places/specialized-court-projects/leech-lake-band-of-ojibwe-joint-jurisdiction-healing-to-wellness-courts/.

^[22] Id.

^[23] Id.

Source

Kistemaker, L. (2021). Rechtwijzer and Uitelkaar. nl. Dutch Experiences with ODR for Divorce. Family Court Review, 59(2), 232-243.

Table of Contents

Cases:

Case: Houses of Justice

CASE

Houses of Justice

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Community Justice Services – Policy Brief / Case: Houses of Justice

Key fact and figures

Year of establishment	1995
Scope of service/ Type of justice problems addressed	Family, neighbour, crime, money, public services
Geographical scope	Country-wide (Colombia) – partial coverage
Legal entity	Part of the government – private service providers also included
Regulatory embeddedness	Part of the government
Number of affiliated staff members	Varies per house, depending on services offered
Number of cases resolved	+20 million
Citizen satisfaction	High satisfaction with access, less satisfaction with actual solution of problems
Citizen impact reporting score
Costs of services for citizens (average and range)	none
Average processing time	From days to a few months, depending on case
Annual Budget	Varies per house, depending on services offered

Introduction

The United States Agency for International Development (USAID) supported several programmes in Latin America and the Caribbean region to promote rule of law and democracy in the last decade of the 20th century. One such programme was the Casas de Justicia program that was implemented by the Colombian Government, with support from USAID, in 1995. Casa de Justicia is a multi-door, legal information and community dispute resolution centre with an objective of meeting justice needs of low-income communities. It was launched as a pilot project in two large low-income neighborhoods in Bogotá (Ciudad Bolívar) and Cali (Aguablanca). Over the years, the program expanded into 158 venues in 132 municipalities throughout the country. The main objectives of the programme are:

Multiple reasons make this program interesting for this issue brief: (i) Its long duration (25+ years). (ii) The program’s large scale in terms of both geographical reach and number of users—between 70 and 80% of the general public in Colombia knows of the program (La Rota, p. 174; DeJusticia, P. 78). (iii) Its focus on underserved populations—Casas de Justicia are located mostly in low-income neighbourhoods throughout the country. (iv) The program’s diverse settings of implementation (given large socio-economic and cultural differences across Colombian regions, as well as its multiple justice delivery goals and available services across cities, which enable comparison of service models within one general framework. And finally, (v) the availability of data about the program.

Program description

The World Bank’s comprehensive review of access to justice in Colombia describes the program as follows (Varela and Pearsons, p. 175):

The casas de justicia are multiagency venues that provide information on rights, legal advice, and conflict resolution services. A variety of conciliation options are offered, together with administrative and some formal justice services (Decree 1447 of 2000). Since 1995, the Ministry of the Interior and Justice, with support from USAID, has constructed a system of casas de justicia comprising some 81 houses [158 as of Oct. 2020]. Originally designed for cities with populations in excess of 100,000, casas de justicia provide rapid solutions to everyday interpersonal disputes and neighborhood conflicts. Other issues they address include personal identity verification, domestic and sexual violence, and criminal cases of lesser gravity. Services for displaced populations are also provided, and matters of institutional abuse are considered.

The purpose of the casas de justicia is to facilitate “one-stop” access to legal help for poor people in marginalized or conflictive neighborhoods, and to promote peaceful-dispute resolution and social cohesion. Although they vary in design, casas de justicia incorporate local prosecutors, public defenders, municipal human rights officers, municipal neighborhood affairs units, comisarías de familia, legal aid specialists, social workers, and psychologists in a variety of conciliation services. Many justice houses also include other entities such as nongovernmental women’s organizations, youth mediation services, children’s playrooms, and university law clinics, and personnel such as forensic doctors, community police officers, and representatives for ethnic-communities.

Casas de justicia eliminate or reduce common access barriers and bring justice closer to the people, both physically and culturally. Procedures are free of charge, easy to arrange, and informal. Legal representation (having a lawyer present) is not required. Disputes are resolved in a timely manner. However, the sustainability of the houses is dependent on the continued participation of various institutions from the justice sector, some of which have insufficient staff to assign to small town projects; municipal political will to assume justice and conflict resolution commitments; and municipal budgets for justice services. Unfortunately, all of these factors are compounded when justice houses are located in small, war-torn areas.”

Financing strategy

Developing a sustainable financial model is essential to maintain consistency in the quality of services delivered. Casa de Justicia receives funds from several channels, including national and local governmental entities in Colombia. It has secured partnerships with the legal clinics of local universities and local chambers of commerce, to provide in-site conciliation and legal advice services to users. Municipalities that host the houses of justice are also required to contribute to it but evidence indicates that they do not always prioritise it.

Similarly, various governmental agencies that implement the programme participate in it voluntarily. As a result, there is a lack of consistency in their contributions to the programme. This leads to situations in which, as one of the officers involved told Botero, “if there is coffee one day, sugar may be missing” (figuratively speaking). Since the primary target of the Houses of Justice are marginalized communities, all services are provided free-of-charge—user contributions are not present.

Despite securing stable public-private partnerships and receiving support from bilateral aid agencies, Casas de Justicia faces a shortfall in funds due to inconsistency in municipal and administrative support.

Monitoring outcomes and implementing evidence-based solutions

Evidence indicates that Casas de Justicia has not used outcome monitoring to improve the interventions of the programme as a whole, nor introduced evidence-based interventions. Organisations such as DeJusticia, USAID, Ministerio de Justicia and Colprensa have conducted assessments of the programme and there is some anecdotal evidence and general surveys on user satisfaction. However, multiple studies (Casas de Justicia de Medellin; DeJusticia; USAID; Programa Nacional de Casas de Justicia y Convivencia Ciudadana) indicate that the programme’s information system is deficient and not generally used. Each house captures data on cases coming in, but very little information is available on whether disputes were actually solved.

The lack of proper outcome monitoring prevents evidence-based adjustment of services—since neither the houses nor the individual agencies regularly follow situations of conflict over time, they do not know whether, how and to what extent, a particular justice situation evolves into a downward spiral of conflict that ultimately leads to violence. Moreover, the weaknesses that the existing studies identified have not been addressed.

The programme has also remained essentially unchanged since its formalization under Decree 1477 of 2000. Instead of basing decisions on careful, evidence-based determination of needs and results in the community, decisions on resource allocation, prioritization of cases, and expansion and reduction of services (through the construction of new houses or through adding or removing agencies involved in existing ones), are made on the basis of purely bureaucratic considerations or on the good intentions of government officers (DeJusticia; Lina Buchely et al).

Impact

In terms of dispute resolution rate, a few studies suggest that about 50% of disputes are resolved at the Casas de Justicia. Comparing the performance of the programme to that of the alternative – the formal court system – anecdotal evidence and general surveys on user satisfaction suggest that Casas de Justicia is generally regarded as better. The program’s informal approach (without the need for a lawyer) makes it generally faster than the court system, and in those Houses where there are courts (e.g., small claims courts at Ciudad Bolivar), some evidence suggests that proceedings are handled more efficiently and speedily than in regular courts. Some studies have found the program’s significant influence on shaping social representations of justice among target communities, with meaningful impacts on dispute resolution practices (Navarro Carrascal and Diafeiria).

Anecdotal evidence collected by Botero in several houses across the country, suggest that while some users left the house with a sense of having received an answer to their needs, others felt that the authorities “did more to confuse them than to actually help them”. Even so, it is difficult to ascertain the programme’s impact in a holistic way, given the absence of a proper outcome monitoring system and weaknesses in the programme’s existing data collection and analysis system.

Furthermore, the uneven participation among diverse agencies across houses around the country and unequal commitment from local authorities, makes it extremely difficult to assess whether existing data on justice delivery at the houses of justice are nothing more than “people listened to” (or case files moved from one desk to the other without real impact on people’s lives), as Bucheli, Solano and Recalde suggest, or whether these figures effectively represent over 20 million justice needs actually met, as the Ministry of Justice claims.

Evidence on the program’s effectiveness in rural areas remains disputed. A significant percentage of violence and crime in Colombia takes place in rural settings. Not only the drug and guerrilla conflicts are overwhelmingly rural, but according to Colombian´s National Police (2019), many crimes are also more prevalent in rural areas, including burglary and kidnappings. It is unclear whether the gentle-hand approach to justice of the houses of justice model (which is largely centered around ADR options) is effective to address the most pressing justice needs of the rural population.

The capacity and effectiveness of administrative agencies and procedures to resolve disputes in rural setting, where the State presence in Colombia has been traditionally weak (García Villegas), is also limited—dispute resolution services in large segments of the country have been effectively delivered for decades by guerrilla and paramilitary groups. Casas de Justicia does not seem a viable option to address the most pressing injustice that people suffer in rural settings.

Finally, one highly popular component of the program’s outreach efforts is the mobile Houses of Justice, where the various participating institutions deliver justice off site, at various neighbourhoods or in rural areas. Several experts consulted by Botero consider this kind of program is extremely difficult to sustain under the current model and level of resources, and thus not effective. One expert called it “justicia golondrina” (swallow justice), after the bird that only comes from time to time, without leaving any meaningful footprint. Moreover, some suggest that it may be counterproductive, as it creates unreasonable expectations of access among the public that turn into frustration for lack of follow up.

Scaling

While assessments of the program diverge, the weight of the evidence indicates that the program has been generally effective in addressing the needs of the most vulnerable urban population. Overall, the most prevalent use of the Casas de Justicia program according to DeJusticia, were in family disputes, criminal matters, document petitions, conflicts related to leases and public utilities, employment disputes among others (DeJusticia, p. 54).

According to the programme’s national director at the Ministry of Justice (interview, October 8, 2020), with 158 venues in 132 municipalities throughout the country, the program has reached about 70% of its target population. Given that about three quarters of Colombians live in these cities, in terms of reach, the program has been successful. According to the Colombian Ministry of Justice, central authority in charge of the general direction of the Casas de Justicia program, 15 to 20 million cases have been handled by this multi-door, community dispute resolution centers, from its foundation in 1995(3). (DeJusticia, p. 77-78; Ministerio de Justicia, 2013).

According to the Ministry of Justice, close to 50% of all petitions for conciliation or redress at the houses of justice during the year 2013, were filed by people belonging to the poorest sextile of the Colombian population (“estrato 1”), and another 45% by people belonging to the second and third lowest sextile (Dejusticia, p. 55-56), and this trend remains generally unchanged until today. This means that the program has overwhelmingly served the low- and middle-income urban population, as it was originally intended.

A critical element of this analysis is the justice delivery gap in the Casas de Justicia program: While the numbers vary across sources, it appears that the program is widely known and highly popular among the general public, but not really widely used. (Awareness 70-80% – Overall use 2%. Use among the poor: 10%.). Moreover, according to DeJusticia and La Rota, Lalinde and Upimny (2013, p. 107), by 2013 only 1.8% of the cases handled by any sort of administrative authorities were actually resolved by the Casas de Justicia program. This can be attributed to the lack of consistency of service delivery (independence of political winds at the national, regional and municipal level) and issues of financial sustainability. As a result, critics of the programme call it a highly institutionalized placebo which seeks to defuse neighbour grievances among marginalized communities rather than to actually resolve them (Bucheli, Solano and Recalde).

Integration with the formal justice system

Experts and researchers in the justice sector are increasingly recognising the importance of integrating the formal and informal justice system. In the case of Casa de Justicia, participation of the formal judicial branch remains relatively marginal throughout the country today. Many of the Houses include crime reporting desks of the national prosecutor’s office (Fiscalia General de la Nacion). While some of them (e.g., Ciudad Bolivar) include two small claims courts as part of the services offered, in most of Casas de Justicia the most common type of state agencies present are administrative agencies, mostly at the municipal level (e.g., the office of the municipal ombudsman; the Police Inspector or the community development office). Agencies at the national level such as work and labour inspectors from the Ministry of labor, a delegate of the National Registry office or the Instituto Colombiano de Bienestar Familiar (minors defence agency), are also commonly present. (Ministry of Justice, 2012, p. 12)(6).

Enabling environment

Casa de Justicia, being a government-led programme, received significant support from regulatory and financial systems at the time of its formation. They have become the default avenue for handling conflicts at low-income neighbourhoods throughout the country’s urban centres. However, government-led status has not safeguarded the program from shortfalls in funding and lack of inter-agency coordination. Interviews with senior officials and experts suggest that Casas de Justicia needs more support from regulatory systems in terms of planning and inter-agency coordination to improve service delivery and more funds and logistical support from the administration to expand into rural areas.

Critical success factors

Interagency coordination at the national and local levels of government in Colombia.
Funding collaboration and coordination among different levels of government and branches of government
Consistent funding from bilateral aid agencies (USAID).
Collaboration with and participation of private entities in the programme, including legal clinics of law schools and local chambers of commerce, which offer ADR referral services at the houses.

Lessons learnt

Lessons learnt from the experience of setting up Uitelkaar are:

Deficient service delivery coordination at the houses of justice. While the Houses of Justice represent a major step forward in terms of interagency service delivery collaboration among different levels and branches of government, and with the private sector, they still show some deficiencies. Individual officers from multiple agencies serve under the same roof, but they have little incentive to coordinate among them. Each employee has a different line of command outside the House—the House coordinator is not the boss of any of them. The House coordinator lacks authority to mandate coordination or to punish service delivery failure. For instance, there is virtually nothing the House coordinator can do if one day one of the officers simply do not show up at work at the House because this person was temporarily assigned by his/her agency’s boss to do something else that day or week (or even month).
Deficient inter-agency coordination at the policy level. Inter-agency coordination mechanisms created by the basic law governing the program (Decree 1477 of 2000), have systematically failed over the past two decades. While coordination is supposed to happen through regular inter-agency meetings at various levels (national, regional, local, and at individual houses), these meetings are extremely rare (the top-level coordination meeting has not taken place is several years), and there are no consequences for the agencies or for the individual officers for this deficiency.
Employee turnover. High employee turnover makes capacity training and coordination less efficient and often frustrating to other officers involved.
Barriers for participation of private entities in the program: Other than partnerships with law students and local chambers of commerce, current regulations do not really foster other types of collaboration of the private sector in its development.

Methodology

This paper is based on: Botero, Juan Carlos, “CASE STUDY – Casas de Justicia in Colombia. December 2020, which is available at: https://dashboard.hiil.org/trend-report-2021-delivering-justice/case-study-casas-de-justicia-colombia/

Botero’s study was based on extensive literature review, semi-structured interviews with government officers and users, and field visits to several houses of justice.

Authors

This case has been developed by Juan Botero with suggestions from the HiiL team.

Table of Contents

Cases:

Case: Bataka Court Model

CASE

Bataka Court Model

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Photo by Bataka Court

Community Justice Services – Policy Brief / Case: Bataka Court Model

Key fact and figures

Year of establishment	2014
Scope of service	Civil justice problems and petty crime
Geographical scope	2 districts in Uganda
Legal entity	Privately run foundation
Type of justice problems addressed:	Civil justice problems including disputes related to land, family, neighbours and petty crime
Regulatory embeddedness	Private
Costs of services for citizens (average and range)	Free, no cost

Introduction

Bataka Courts literally translated as ‘Ordinary Citizens Courts’ is a community justice service based in Kagadi district of Uganda. It aims to increase access to justice for the poor by enabling local leaders to deliver justice services. It was conceptualised in the year 2012 with the support from DFID and ODI when these institutions were looking for innovative models that can provide access to justice for the poor in low income countries. It was implemented by World Voices Uganda with support of Overseas Development Institute and Development Research and Training, a non-for-profit organisation based in Uganda in 2014.

Bataka Courts addresses civil justice problems such as disputes related to land, family, neighbours and petty crime ^[1].

The justice gap in Uganda is sizable. The Justice Needs and Satisfaction Survey 2019 conducted by HiiL indicated that about 84% of the people in Uganda experienced a legal problem in the past four years ^[2]. Additionally, access to lawyers for Ugandans is also limited. Since 85% of lawyers are concentrated in the capital city ‘Kampala’, the majority of the Ugandans don’t have access to lawyers ^[3]. Given the inaccessibility of lawyers and high rate of justice problems, a large percentage of the population relies on informal justice services to resolve disputes ^[4].

Justice leaders in Uganda are also promoting informal justice services to fill the justice gap. Hon Justice Duncan Gaswaga, the Deputy Head of the Commercial Division of the High Court of Uganda recognised informal justice systems such as community courts as alternative dispute resolution mechanisms that are faster, cheaper and accessible to Ugandans ^[5].

In such a scenario, Bataka Courts have a significant role to play in bridging the justice gap. “[They] are based within communities, matters are decided quickly and there are no legal or court costs. Their decisions emphasise reconciliation and social harmony” ^[6].

In this report, we outline various aspects of the service delivery model of Bataka Courts, how it has streamlined monitoring outcomes, its impact on the lives of Ugandans and its marketing and financial model. We also outline the challenges that Bataka Courts faces in scaling and factors that make it a successful model of community justice services. Since not much literature is available on it, the information for this report has been drawn from an interview and discussion with Gard Benda, Director at World Voices Uganda who played a leading role in the implementation of Bataka Courts.

Programme Description

World Voices Uganda (2020) and Benda (n.d) provide a comprehensive description of the Bataka Courts model ^[7]. The following paragraphs provide a summary of it.

“Each court has a panel of seven elders who are well respected in the community. The elders should not have a criminal record and should be willing to volunteer as a witness. Community members can directly report a problem to any of the elders who then convene a meeting with other community members. The meeting is conducted in the home of the elder who calls the meeting or any other central meeting place to which the disputing parties have agreed to.

The proceedings of the court are conducted in the local language to make sure everyone understands them. Since Kagadi is a multi-ethnic community, an interpreter is appointed to ensure that those who speak another language are also heard. Once the disputing parties present their case, community members are allowed to raise questions, seek clarifications, add information that is relevant to the dispute and offer their points of view. The case is heard for a period of three weeks where an inquisitorial approach is taken to establish the facts of the case. Once all aspects of the dispute have been discussed, the elders intervene. Elders are required to arrive at a consensus before making the final decision.

The elders provide remedies such as requiring the offender to issue a public apology, participating in community service, compensation for victims of wrongs, restitution, simple refund and recovery of debt and property and compensation. The decisions of the elders are binding for as long as the disputing parties accept it. If the disputing parties are dissatisfied with the outcome, then can report it within a span of 14 days. If the parties would like to escalate the dispute to the formal justice system, the Bataka Courts issue a referral after which the case proceedings start afresh”.

Linking formal and informal justice system

Bataka Courts have integrated with the formal justice system and law enforcement agencies successfully to a large extent. The Local Council Courts — a government-driven community justice service in Uganda, Magistrates who preside over district courts, the police and a few other administrative bodies refer cases to the Bataka Courts ^[8]. “Between 2012 and 2016, over 60 cases were referred to the BC by the Grade1 Magistrates Court in Kagadi, 56 cases were referred from Police, 42 cases from Local Councils, and 16 cases from district institutions” ^[9].

Findings from the discussion with Gard Benda (2021) also indicate that Bataka Courts have collaborated with the formal justice system to improve upon its service delivery model in various ways.

It has developed the rules of dispute resolution mechanism in consultation with the Justice Law and Order Society, which is an arm of the government of Uganda comprising various ministries, law enforcement agencies and other justice sector institutions in Uganda. This was done to ensure that the services delivered address issues related to gender-discriminiation and human rights optimally.
To increase awareness among the functionaires of the formal justice systems of the procedures and principles dispute resolution used by the Bataka Courts, World Voices Uganda has developed a training programme to appraise them. Members of the Bataka Courts monitor the activities of the Bataka Courts along with the district level committees set up by the government.
The Bataka Courts also refer cases to the formal justice system if the disputing parties do not accept their decision or are dissatisfied with the outcome of the hearing ^[10].
Members of the Batak Courts are trained by the police and magistrates who preside over district level courts in laws, procedures and regulations to ensure fundamental human rights are protected ^[11]

Scaling the organisation

Bataka Courts was piloted in the sub-counties of Kyaterekera and Ruteete in Kagadi district. World Voices Uganda later scaled it to ten other sub-counties of Kagadi district and into neighbouring districts of Kyegegwa ^[12]. To make citizens aware of the services delivered by Bataka Courts and to attract users, the World Voices Uganda uses radio programmes and the operation manuals that are distributed among everyday people. But the main factor that prevents it from scaling to all districts in Uganda is scarcity of funding ^[13].

Impact of the organisation

Recent data on the number of cases resolved by Bataka Courts is not available. A report by World Voices Uganda (2020) indicates that between June 2019 and September 2019, in a span of three months, Bataka Courts resolved 155 cases. It indicates that the functionaries of the formal justice system, such as the police, magistrates of the district court are satisfied with the performance of Bataka Courts. A Magistrate from Kibaale says,

“[Bataka Courts are] doing great work. The community refers to the BC as the first response group, before they even report to the police ^[14].”

A police official remarked “BCs seem more appealing to the community. They are direct. They are fast. All win and the people are happy ^[15]..”

Although this is anecdotal evidence, these quotes from legal professionals indicate that the community is satisfied with the speed and efficacy of the services provided by Bataka Courts. As discussed earlier, given that magistrates, police and Local Council Courts refer cases to Bataka Courts, it can also be inferred that Bataka Courts have reduced the backlog of cases experienced by these law enforcement agencies.

Financial strategy of the organisation

Bataka Courts continues to be financially supported by World Voices Uganda ^[16]. It has received funding from HiiL’s Justice Accelerator in 2019 ^[17]. Being a community justice service that addresses justice needs of the poor and marginalised, it does not charge user fees to disputing parties and panel members who preside over the court do so voluntarily. However, the panel members who host the public gatherings and hearings where cases are resolved, have to offer refreshments to all those gathered, as a result of which they incur expenses. All in all, Bataka Courts is currently funded through volunteer labour and donor funding and is yet to explore other sources of funding such as from the government, that can help in achieving financial sustainability.

Lessons learnt

Lessons that can be taken from the experience of setting up Bataka Courts are:

Critical Success Factors

Factors that played a critical role in the success of Bataka Courts are :

Despite being a NGO-led programme, Bataka Courts received buy-in from the formal justice system as well as Local Council Courts, the government-led community justice programme. As a result, magistrates from the formal justice system as well as members of Local Council Courts referred cases to Bataka Courts which helped them in reaching scale in the districts where they operate.
Moreover, linkages with the formal justice system helped Bataka Courts in gaining legitimacy among the people.
Members of Bataka Courts were trained in dispute resolution methods and laws and regulations of the country with the help of training modules. This helped in building the capacity of the justice workers, standardising procedures of dispute resolution and in meeting justice needs of people.

Authors

This case has been developed by the HiiL team based on discussions with Gard Benda on August 12, 2021.

View References

^[1] World Voices Uganda, (2020). Capacity assessment of informal justice actors in delivering justice: Compliance with constitutional required and international human rights standards.

^[2] HiiL (2019). Justice Needs and Satisfaction Survey, Uganda.

^[3] The Justice Law and Order Sector, 2012. Draft Uganda Legal Aid Policy.

^[4] HiiL (2019). Justice Needs and Satisfaction Survey, Uganda.

^[5] Democratic Governance Facility. (2020). Informal justice mechanisms commended from promoting justice (Blog).

^[6] Ssebunya, A. K. (2014). Why local realities matter for Citizens’ Voice and Accountability. Lessons from Mwananchi Uganda pilot projects. Field Actions Science Reports, 11, 1-7.

^[7] World Voices Uganda, (2020).; Benda, N.G. (n.d). Bataka Court Model: Operational Manual. World Voices Uganda.

^[8] Discussion with Gard Benda and working group members, 2021.

^[9] World Voices Uganda, 2020, pg. 31.

^[10] World Voices Uganda, (2020).

^[11] Discussion with Gard Benda and working group members, 2021.

^[12] World Voices Uganda, (2020).

^[13] World Voices Uganda, (2020).

^[14] Ibid.

^[15] Ibid.

^[16] Ibid.

^[17] HiiL, (2022). Advancing people-centred justice in Uganda: where are we seven years later? (Blog).

Table of Contents

Cases:

Case: Sierra Leone Legal Aid Board

CASE

Sierra Leone Legal Aid Board

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Photo by Legal Aid Board Sierra Leone

Community Justice Services – Policy Brief / Case: Sierra Leone Legal Aid Board

Key fact and figures

Year of establishment	2015
Scope of service	Legal representation, advice and education
Geographical scope	Country wide
Legal entity	Government created institution
Type of justice problems addressed	Wide range including criminal and civil, adult and juvenile. Three leading types of criminal cases are larceny, sexual harassment and robbery with aggravation. Most common advice/assistance/mediation cases are child maintenance (65% of the total), land and property disputes (16%), debt (7%) and family disputes (5%)
Regulatory embeddedness	Part of the government
Number of affiliated staff members	58 paid by govt, 33 funded by external donors and 18 volunteers
Number of cases resolved	18,555 represented 49,282 advised/assisted/mediated 45,004 received legal education
Citizen satisfaction	Best performing justice institution In public survey 47% rated excellent Next highest institution only scored 10%
Costs of services for citizens (average and range)	$22 per client (total budget/ 67,000 legal rep and legal advice clients). As budget also covers legal education unit costs for representation/advice likely to be lower
Annual Budget	Government funding $1.0 million ODI estimate other sources to be no more than $0.5 million Total budget $1.5 million

* All figures refer to 2019 unless otherwise stated

Inception of the Legal Aid Board

The establishment of the Sierra Leone Legal Aid Board (SLLAB) has been a long drawn out process. Its genesis lay in a Open Society Justice Initiative in 2002 that explored options to support transitional justice in Sierra Leone, in the aftermath of the civil war and the general elections that followed it. The experiences of Street Law and Black Sash, two NGOs in South Africa that had implemented a pioneering paralegal programme, sparked the interest of local civil society organisation Forum for Human Rights, based in Sierra Leone. Forum for Human Rights perceived lack of access to as one of the drivers of conflict in the country. In response to this interest, the Open Society Foundation began funding community paralegal work which led to the creation of Timap for Justice, an NGO in Sierra Leone in 2005 ^[2].

The UNDP Commission on Legal Empowerment of the Poor and Open Society Foundation supported recommendations of TIMAP in innovatively deploying paralegals to deliver justice services in the community. This increased the interest of international stakeholders further. By 2010, TIMAP and a group of four other NGOs had covered eight of the twelve districts and in 2013, had resolved 4,300 cases that year, owing to the support of the Open Society Foundation ^[3]. The group then also began to advocate for formal recognition of the role paralegals could play ^[4].

At the same time, the judiciary and bar association gave pushback to the institutionalisation of paralegals in the country because they perceived the paralegals to be competitors. To convince them that the paralegals are going to perform tasks that lawyers are not interested in, supporters of the programme utilised the media and held legal conferences with them. In 2009, the Justice Sector Development Programme of the Sierra Leone set up a Pilot National Legal Aid scheme (PNLA) ^[5]. In 2011 the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems were drafted. With support of the Open Society Justice Initiative, the then Attorney-General, Frank Kargbo, worked towards getting the Legal Aid Act in Sierra passed in May 2012. The Act both established the Legal Aid Board and formally recognised the role of paralegals, but there was no solid financial support or provision for funding made by the government.

After much delay, in 2015, the Legal Aid Board secured financing commitments from both government and bilateral and multilateral aid agencies. The government committed to providing a million dollars a year in funding whereas the Charles Stewart Mott Foundation and the Global Fund provided another half a million. To sum up, the Sierra Leone Legal Aid Board began as a community and civil society led initiative and was later assimilated into the government. It is therefore overseen by the government and enforces its actions through the formal legal system.

In 2013, TIMAP — the local NGO that started the initiative — together with four other NGOS, covered 3% of the total legal needs in Sierra Leone. As the Legal Aid Board scaling, the scale has reached to a factor of 10 i.e the Legal Aid Board met one third of the justice needs in the country.

Services provided by the Legal Aid Board

To prevent and resolve disputes, the Legal Aid Board provides justice seekers legal representation and provides support to widows and women who are survivors of domestic violence including expulsion from their matrimonial homes via paralegals. The paralegals provide guidance on dispute resolution methods to administrators of local and informal and traditional courts. They also conduct legal education, awareness and empowerment activities during town hall meetings, community and school outreach events and community radio phone-ins.

The Legal Aid Board monitors justice institutions such as police stations, correctional centres, local courts, informal courts (presided over by traditional authorities) and magistrate courts. It oversees child maintenance matters when couples separate. The Board also seeks to educate people on the rights in both the formal local courts and the informal/traditional courts.

Financing the development of the Legal Aid Board

The Legal Aid Board has scaled up community-based justice advice and assistance by a factor of 10 and has done so affordably, reducing unit costs by a factor of 5 compared to previous donor-supported NGO implemented programmes.

ODI research suggests that even after the scale up, the Legal Aid Board is able to meet only a third of total justice needs ^[6]. This is mirrored by Legal Aid Board’s own concern that while the Act envisaged paralegals in all chiefdoms, it has only been able to place paralegals in one third of the 190 chiefdoms to date. On the other hand, the unit-costs of the Legal Aid Board at $22 per client is in line with ODI global estimates ^[7].

However, funding poses a big challenge to scaling the initiative. The current funding by the Sierra Leone government (9% of the justice budget) is not realistic to expect on a long term basis ^[8]. Bilateral donors have also been unwilling to fund the initiative and other avenues may be needed in the future if these efforts have to continue and grow.

Role of enabling environment in the growth of the Legal Aid Board

The Sierra Leone Legal Aid Board, after its formation, did not experience challenges from regulatory bodies except for opposition by bar associations and lawyers at the inception stage.

After the Legal Aid Board was established, changes in the government did not affect its funing. The political party that came into power after the one that had established the Legal Aid Board continued funding of the Legal Aid Board, in the same capacity as the previous party. Sierra Leone Legal Aid Board is now the most highly regarded legal institution in Sierra Leone with nearly half of the population rating it as ‘excellent’.

Lessons learnt

Lessons learnt from the experience of setting up the Sierra Leone Legal Aid Board are:

Community justice services have to be locally owned by the people of that country. TIMAP and the other NGOs that collaborated with it were able to demonstrate the effectiveness of paralegals before the programme was nationalised.
Rallying the support of existing service providers – lawyers and bar associations — was necessary to be able to institutionalise the paralegals. Similarly, buy-in of national leaders was also essential to the nationalisation of the programme.
Having some ‘smart friends’ with ‘smart finances’ outside can be really helpful. For example, the journey wouldn't have taken off without the Street Lawyers or Open Society Foundation telling the world about the work of the Street Lawyers.
One of the key indicators of the success of the Legal Aid Board has been that the unit cost of resolving a dispute came down massively owing to the deployment of paralegals.

Critical Success Factors

Factors that are critical to the success of the Sierra Leone Legal Aid Board are:

Long term persistence of more than a decade by a group of committed Sierra Leonean champions and a few international colleagues who collectively had the vision and the skills to create successful paralegal programmes and draw on this experience to effectively advocate for change.
Long term investment by both donors and philanthropic agencies over multiple project funding cycles, whose politically smart flexible funding enabled the Sierra Leonean champions and key government ministers and officials to draw inspiration and lessons from other countries (in particular South Africa and Malawi).
Long term commitment of the paralegals in Sierra Leone whose difficult work in remote areas over many years demonstrated what was possible.
The post- conflict recovery of the economy, and hence government revenues, which enabled the government to eventually take on some of the financing costs.
Political stability with the same party in power from 2007-2018 covering most of the key years and the same Attorney-General (Frank Kargbo) between 2010 and 2015.
Political freedom, especially contested elections, which give an incentive to the new incoming government to continue to fund services that are shown and known to benefit people in a cost-effective way.
International efforts to make the case for legal advice for the poorest, most notably the Commission for the Legal Empowerment of the Poor.

Authors

This case has been developed based on Marcus Manuel ^[1] and Claire Manuel’s ODI paper.

View References

^[1] This case has been developed based on

- - Manuel, M., Lavaly, S. and Manuel, C. (forthcoming) ‘Case study of Sierra Leone Legal Aid Board – background paper’ for P. Domingo and A. Pellini (forthcoming) The political economy of domestic resourcing of access to civil justice. London: ODI. (copy attached)

^[2] Maru, V. (2006). Between law and society: paralegals and the provision of justice services in Sierra Leone and worldwide. Yale J. Int’l L., 31, 427; Maru, V., Braima, L., & Jalloh, G. (2018). Squeezing Justice Out of a Broken System: Community Paralegals in Sierra Leone. In V. Maru & V. Gauri (Eds.), Community Paralegals and the Pursuit of Justice (pp. 210-240). Cambridge: Cambridge University Press.

^[3] Maru, V., Braima, L., & Jalloh, G. (2018). Squeezing Justice Out of a Broken System: Community Paralegals in Sierra Leone. In V. Maru & V. Gauri (Eds.), Community Paralegals and the Pursuit of Justice (pp. 210-240). Cambridge: Cambridge University Press.

^[4] Ibid

^[5] Suma, M. (2014). Sierra Leone – Justice sector and the rule of law. Open Society Foundation for West Africa.

^[6] This is based on the latest WJP survey for Sierra Leone shows 54% of households have a legal need every two years, i.e. 27% every year.

^[7] DFID Project Completion Report for AJSP noted unit cost for paralegal services ranged from $70 to $800 with an average of $150 per case. It also noted that the Legal Aid Board offers the best prospect for a longer term more sustainable model.

^[8] Ibid.

Table of Contents

Cases:

Case: Uitelkaar

CASE

Uitelkaar

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Photo by Uitelkaar

One Stop Shop Dispute Resolution – Policy Brief / Case: Uitelkaar

Key fact and figures

Year of establishment	2017
Scope of service	Family (Divorce)
Geographical scope	The Netherlands
Legal entity	For profit company
Regulatory embeddedness	Under the Dutch Legal Aid Act, there is a special regulation for clients with lower income using the procedure offered by Uitelkaar. When eligible, Uitelkaar receives state-financed legal aid to support these clients, and clients only pay a small own contribution (of €37 or €74 per person). Furthermore, Uitelkaar is offered on the website Rechtwijzer, a preliminary provision operated by the Legal Aid Board that helps people find solutions for their legal problems in an interactive manner.
Number of affiliated staff members	16
Number of cases resolved	3835 clients Potentially 24% of the market. Clients without financial aid: 52% Clients with financial aid: 48% – by way of a government regulation designed specially to OSSDR in the Netherlands.)
Citizen satisfaction	8.1 (out of 10)
Costs of services for citizens (average and range)	€37 – €450
Average processing time	25 weeks
Annual Budget	€1 million

Introduction

Online dispute resolution platforms that started off with resolving e-commerce disputes have slowly evolved into One Stop Shop Dispute Resolution platforms that resolve family disputes. Uitelkaar.nl is one such One Stop Shop Dispute Resolution platform that uses technology to assist couples in obtaining a divorce or separation at an affordable price in The Netherlands. The platform is mainly suitable for couples who have low levels of conflict and are reasonably self-reliant. It provides end to end legal services for divorcing couples — from assembling required documents required to finalising the divorce to facilitating agreements on childcare and alimony. Mediators, case-managers and lawyers guide the separating couple through each step-by-step, thus combining technology with human assistance.

Uitelkaar.nl was founded in 2017 by Laura Kistemaker, Kaspar Scheltema and Michel Scheltema with the objective of a) utilising online environment to support people in staying in the drivers’ seat when undertaking problem solving, b) utilising online environments to strengthen the self-efficacy of people by providing a clear and transparent structure, actionable legal information and support tools, all backed by a team of online and offline available professionals, and c) merging the information gathering, intake and inventorisation, dialogue and negotiation, mediation and adjudication to encourages a problem-solving attitude and help people in staying away from polarisation and escalation.

The platform offers three types of plans to users the cost of which ranges from 250 Euros to 500 Euros. Users can also purchase ‘add ons’ such as partner alimony calculation, organising child support, aftercare (legal services provided in the aftermath of the divorce), online advice regarding the housing situation and others. Users having low levels of income are eligible for subsidies.

Process of product development

The first version of Uitelkaar.nl was championed by the then Legal Aid Board in the Netherlands. The Dutch Legal Aid Board and Ministry of Justice were seeking a new solution for divorce that a) would reduce costs of conflict, b) facilitate ownership of the solution, and c) reduce system costs. Hence, they provided initial funding and support to develop a platform called Rechtwijzer uitelkaar. To that end, they mobilised a broad range of stakeholders such as The Hague Institute for Innovation of Law (HiiL), Modria — a software developer along with several lawyers, mediators, legal services counter representatives, financial experts, communication experts, user experience/interaction designers, end-users among others. This platform dealt with divorce in The Netherlands, British Columbia and England & Wales, as well as landlord-tenant issues in The Netherlands.

Rechtwijzer uitelkaar was operational from 2013 to 2016. It was integrated with the Dutch government’s website ‘Rechtwijzer’ that provided users general information and pathways to support services on issues related to consumers, tenancy and debt. When the business model of Rechtwijzer uitelkaar did not prove to be financially viable, Laura Kistemaker, one of the founding members of the platform with the support of HiiL, transformed it into a private company titled ‘Justice42’. Justice42 was backed by social impact funding. The company Justice42 then launched Uitelkaar.nl. It was also supported by the Dutch Legal Aid Board but this time by subsidising the costs borne by couples who want to separate but cannot afford to pay for services provided by Uitelkaar by themselves.

Uitelkaar.nl went live in 2017. Since then, the platform has been continuously expanded and improved. Examples are: addition of parenting plan and mediation (2018), diagnosis tool (2020), redesign of the platform (2021), aftercare (2021), technical integration of add ons (2021), children’s module (2021), modular texts (planned for 2022), assisted process (planned for 2022), connection to electronic court filing (planned for 2022).

User-centred Design

A constant feedback loop with the clients has been built into the system with end-users having been involved in the entire process of the product design cycle. The platform automatically sends out surveys in different phases of the process and produces real time data visualisation in dashboards through PowerBI. This enables the team to analyse how people experience and interact with the platform. Extensive questionnaires are also integrated in the process and feed into data dashboards that are used to identify areas of improvement.

The team of Uitelkaar also interviews end-users to understand their experience of using the platform. The platform has its own online community which serves as a sounding board for various services that the platform provides.

Process of dispute resolution

Uitelkaar aims to facilitate discussions and agreements between the separating couple, deescalate disputes and help the separating couple in transitioning into a new kind of relationship. While the platform is automated and offers a digitally structured process, it also provides human assistance through case managers, lawyers and mediators. The process of using online dispute resolution services at Uitelkaar to initiate a divorce is as follows:

Once the parties (or one of the parties) decide to use Uitelkaar, they are introduced to the different services offered by it and are provided an orientation of the platform and the range of services that are provided.
When they decide the services that they would like to use, the two parties to the disputes (two accounts (partner A + B), one case) are registered on the platform.
Then both parties complete an online questionnaire in which they provide information about themselves that is relevant to the dispute at hand. This step is known as intake.
The next step is a dialogue between the parties to facilitate agreements, based on personalised suggestions offered by a case manager appointed by Uitelkaar. The disputing parties can reach out to the case manager via the platform, phone call and video conferencing. If further help is needed, then the parties can seek assistance of a mediator or take advantage of other add ons such as legal advice, alimony calculations, pension advice, mortgage advice, notary services, and mental coaching. They can interact with the mediator via online messaging, phone calls and in-person meetings.
The case manager documents agreements on various aspects of the divorce such as division of assets, alimony, mortgage, parenting plan and so on. These agreements are then reviewed by a lawyer who interacts with the disputing parties via the platform, phone calls or in person meetings. The disputing parties are then provided feedback in several live/online negotiation meetings held before the divorce is filed in the court.
Post issuance of a court order, Uitelkaar also allows the disputing parties to modify agreements if they wish to.

Submission problem

One of the challenges that Uitelkaar encounters is getting both parties to the dispute to agree on using the platform. In the Netherlands context, however, is that 80% of divorcing couples follow a less or more cooperative process. The ODR process hence facilitates a majority of divorcing couples unless the submission problem is such that one partner may want to use the platform, whereas the other might want to go offline.

Impact

Uitelkaar has invested a lot in building and implementing an impact measurement matrix. New benchmarks are created even for the new additions or changes to evaluate whether they increase or decrease the impact. Reports that calculated the social return on investment indicated that for every Euro investment, social returns of 5.8 Euros were generated ^[1].

To monitor the satisfaction level of users, the platform sends automatic surveys at various stages of dispute resolution and aggregates the data on a real time basis on a Dashboard. After users complete the separation process, Uitelkar conducts another survey to understand whether the platform helped the users or disputing parties in moving on with their lives, in coping with negative emotions and in caring for their children ^[2].

Integration with the formal justice system

The organisation is periodically vetted by the Legal Aid Board. For this, it has to satisfy a long list of quality criteria. The vetting process allows the public authorities to refer to the platform, either digitally or through the legal aid service centres.

The dispute resolution process is strictly speaking a fully private process: it is not formally embedded in the court system. The scope of the process is to support people to reach an agreement, which is formalised in the divorce plan. This plan can be submitted to the court (in The Netherlands, there is an option that one lawyer does this on behalf of both spouses). The court then approves and formalises the plan, i.e. the output follows the regular process. Uitelkaar is mentioned in the policies of the Dutch Legal Aid board, enabling lower income people to get part of the fees covered by a state subsidy.

In general, integration into processes of partners in the ‘supply chain’ (organisations in the justice system) has been one of the biggest challenges. It takes a lot of lobbying and even when there is agreement, it takes long decision-making processes. As a one-stop-shop dispute resolution platform, Uiteklaar wants to create as many integrations that benefit the clients as possible. An example of an integration that recently took root is one with Legal Services Counters. Another one is with the governmental organisation responsible for maintenance allowance. Officers of this organisation now join a case on Uitelkaar to perform alimony calculations. They share the outcomes and communicate with clients through the platform.

In theory, the courts could easily adopt a process like this, and integrate the different kinds of services in their process. The concerns that they might have mostly relate to the leading interpretation of the independence of the judiciary: rather than a conception of a neutral judge, the interpretation dictates that courts do not cooperate with other organisations in their primary processes.

Scaling

Acquisition costs are high due to the one-off character of divorce. Running costs of the platform are also high. Therefore, there is a need for volume. Currently, it is the online divorce platform that meets the criteria set by the Legal Aid Board. However, this is not communicated widely (for example on the government website pages about divorce). Competing with search engine rankings of government services, puts a strain on marketing budgets, while leaving citizens in the dark about governmental approval and quality of service. Other online divorce providers that demonstrably deliver less quality, but are not restrained by the Legal Aid Board criteria, are allowed to have a competitive advantage this way. In addition, these providers receive higher legal aid fees due to being allowed to follow a different financial legal aid scheme than the one UitElkaar is bound to. In order to be able to continue and scale the platform, it is needed that the government sets up a uniform regulatory system for all online divorce platforms and communicates widely which platform does meet the criteria.

Enabling Environment

As mentioned before, Uitelkaar.nl was preceded by Rechtwijzer uitlelkaar. Rechtwijzer uitelkaar received positive reviews from its users and also received international recognition, but the Dutch bar association raised several concerns and asked the lawyers who collaborated with the platform on how they maintained duty of care. It was resistant to this new tool where the role of lawyers was being redefined from being a director of divorce procedures to that of facilitators and reviewers of divorce procedures. Eventually, the platform had to be shelved as it faced financial difficulties since the platform did not generate sufficient revenue via users and funding from the Dutch Legal Aid Board had also come to a stop. However the Dutch Legal Aid Board maintained its stance that it was open to innovations such as this one, but cannot itself be an innovator.

Uitelkaar.nl was launched again by Laura Kistemaker and her associates in 2017 with the help of social impact funds. To show its support for the platform, the Dutch Legal Aid Board advertises the platform on its website Rechtwijzer. To be able to take advantage of this kind of advertisement, Uitelkaar.nl has to meet several criteria set out by the government. Another way the Dutch government supports Uitelkaar.nl is by subsidising the cost borne by low-income couples when using Uitelkaar.nl. However, Uitelkaar.nl wishes to receive more visibility via referrals made on several other government websites such as a Rechtwijzer (Kistemaker 2021). As for the response of lawyers to this new platform, they continue to have reservations about it.

Other competitors in the market

Uitelkaar.nl is a preferred supplier for the digital divorce procedure.There are no competing ODR processes in the Netherlands for divorce that provide end-to-end legal services, with access to legal professionals, to couples who are undergoing separation. Another factor that sets Uitelkaar apart from other service providers is that it is vetted by the Dutch Legal Aid Board. Even so, non-ODR routes for divorce are currently available and are likely to exist for the foreseeable future in the Dutch context. They include :

Either one divorce lawyer, often certified as a mediator, acts for both spouses seeking a divorce, or
One separate divorce lawyer, often certified mediator, works for each spouse, or
The spouses seeking a divorce reach out to mediators without formal legal qualifications, or
There are a few one stop shop dispute resolution platforms (which can be companies with in-house legal, mediation and financial capabilities), or
Websites offering templates for divorce plans.
In addition to these, there is a larger group of lawyers who use an online proposition in the online marketing communication. The more common process of these is that people can fill out a questionnaire, where a word or pdf document is generated upon submission.

Lessons learnt

Lessons learnt from the experience of setting up Uitelkaar are:

‘Submission Problem’ is still an important missing gap. One first needs to convince two people who are not always agreeing with each other to use the same platform to agree on a divorce plan. A strategy that works is to have one of the divorcing partners on board and then help him/her to convince the other. Seducing rather than submitting works.
Focusing on one strategic geographical area with a specific justice issue is a great starting point. However, over time, it is important to expand and modify the platform to other geographic areas as well as justice problems.
How can we ensure a mindset sync between the public and private sector? In the end, bringing about a change is about people and their mindsets. Things take a long time when working with the government and decision-making is not always transparent. There is a constant tension because one has to survive as an independent organisation. For example, to work with the public sector, the private players need to develop patience and the ability to wear many hats, including those of a civil servant and an entrepreneur. The influence of the public sector is also significant in deciding the direction of work for the private providers. Key question is to create a shared mindset between the public and the private sector. It starts from working together - creating joint platforms and projects to get to know one another. This relationship building requires a lot of investment in time and resources.
The potential for private service providers to integrate services in the process is huge. This is because many divorces typically are a bundle of issues with a different nature (financial, social, pedagogical, legal, communicative, administrative). For the private sector providers, it becomes a mix of software development and consulting. Significant amount of work is also about changing the narrative about the use and need of the one stop shop dispute resolution platforms. Being a privately owned business also allows for bringing more innovative and dynamic thinking into the system, while focusing on making sure the people-centred approach is not ignored.
The lobby of the lawyers and mediators continues to be too big to go for all digitally backed dispute resolution processes such as one stop shop dispute resolution platforms. There is also a strong lobby of the Bar Association which is not much in favour either. There is an existential fear on the side of the lawyers. This is the root of their opposition. They start telling the world that the platform cannot have the same quality that they bring and that OSSDR is a sub-optimal way to get to a solution and may create other kinds of issues for the users. OSSDR platforms can try to prove themselves on providing a great quality product. Getting vetted by the government and being transparent is a huge validation. Funnily, however, this does not convince the lawyers - even satisfied users do not convince them! Resistance is also a sign of it being a truly disruptive innovation. There is no ‘association’ of private ODR suppliers yet which can help against these lobbies for now.
A good strategy is to align with stakeholders who can be your ally in the process. For example, there are innovative lawyers, who can see a value in OSSDR platforms, who can help in convincing the Bar Association. It is important to realise that all lawyers may not be disrupted. There will be those who can also gain other sources of income from OSSDR platforms, such as becoming a mediator/arbitrator in changing times. Even other prominent voices that can help create a stronger collective voice for integration of OSSDR in the formal systems help.
If the government provides ODR as a default service, it would be a huge leap forward. Being an open platform focused solely on the end-user, one needs a lot of marketing power. One has to become known, especially in the field of disputes. This is not very easy to do. People do not think about the disputes until they experience it. It is difficult to create a brand name in dispute resolution. Thus, a more suitable approach for marketing could be taking the slower route, that is to become embedded in the public system and become the preferred supplier.

Critical Success Factors

Factors that played a critical role in the success of Uitelkaar are:

Authors

This case has been developed by Laura Kistemaker and Jin Ho Verdonschot with suggestions from the HiiL team.

View references

^[1] Presentation by Laura Kistemaker to the working group members, 23 September 2022 ^[2] Ibid.

Source

Kistemaker, L. (2021). Rechtwijzer and Uitelkaar. nl. Dutch Experiences with ODR for Divorce. Family Court Review, 59(2), 232-243.

Table of Contents

Cases:

Case: BC Civil Resolution Tribunal

CASE

British Columbia Civil Resolution Tribunal

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Photo by Civil Resolution Tribunal

One Stop Shop Dispute Resolution – Policy Brief / Case: British Columbia Civil Resolution Tribunal

Key fact and figures

Year of establishment	2016
Scope of service	Condominium, small claims, non-profit and motor vehicle personal injury disputes.
Geographical scope	British Columbia, Canada
Legal entity	Administrative tribunal
Regulatory embeddedness	Authorised under the BC Civil Resolution Tribunal Act (part of the government)
Number of affiliated staff members	95
Number of cases resolved	Approximately 5,000 per year
Citizen satisfaction	According to the Participant Satisfaction Survey (2021), 80% felt the CRT’s online services weren’t difficult to use, 89% agreed the CRT provided information that prepared them for dispute resolution, 84% felt their CRT dispute was handled in a timely manner, 91% felt the CRT treated them fairly throughout the process. For more information, see the section on ‘Impact.
Costs of services for citizens (average and range)	$125 filing fee, further $100 fee if adjudication is necessary. Fee waiver for people with a low income.
Average processing time	Median small claims time to resolution is 57 days
Annual Budget	$15 million CAD

Introduction

The British Columbia Civil Resolution Tribunal (CRT), formed in 2016, is the first online administrative tribunal in Canada and one of the first of its kind in the world. It is part of the formal justice system, and can resolve condominium, small claims, non-profit and vehicle accident disputes. Modelled on some of the private online dispute resolution platforms, for instance those of eBay or PayPal, the vision for the platform evolved to provide multi-channel service, with a focus on access to justice for vulnerable people.

The BC Civil Resolution Tribunal was set up in response to the dissatisfaction that the owners of condominiums in British Columbia expressed with respect to the time, expense, and complexity of resolving their minor disputes at the BC Supreme Court. So the Ministry of Justice in British Columbia developed the idea of the BC Civil Resolution Tribunal as a more accessible way to resolve everyday disputes between citizens.

Process of establishing the platform

The process of developing the one stop shop dispute resolution platform included the Ministry of Justice, technology partner PricewaterhouseCoopers, a business analyst, a user experience expert and initial team that was leading the development of this platform. Together, the team used an agile development process which created room to do extensive user testing between sprints. The prototype was primarily tested with advocates who represent the most marginalised sections of society, including people who don’t speak English as a first language, new immigrants to Canada, people with physical or cognitive impairments, people with mental health issues, people with a low income, and others.

After that, the prototype was tested with everyday people and lawyers to ensure that the legal information that this prototype provides to people was correct. Because the technical aspects of the platform were also being developed at the same time, these two processes of user testing and technical development were able to integrate seamlessly.

The team always explores opportunities to improve services provided by the platform through private software providers. Much of the BC Civil Resolution Tribunal is based on Microsoft 365 and other everyday computer applications. Off the shelf software, including Salesforce has been integrated to run the technical process smoothly.

In addition to the survey, BC Civil Resolution Tribunal recently created short videos using fictional characters to show the user journey. One video gives information about ‘How to make a claim with BC Civil Resolution Tribunal’ and another on Accident Benefit.

Services offered by the platform

The BC Civil Resolution Tribunal offers support to users in all stages of dispute resolution that the users are likely to experience. The first stage in the system is a free expert system called the Solution Explorer, which offers users free legal information and tools to resolve their problems. If the users need additional help, they can file an application for dispute resolution on the platform. As a starting point, the BC Civil Resolution Tribunal serves one of the parties in the dispute, and at the appropriate time, both parties are invited to negotiate. If the parties can resolve their dispute at the negotiation phase, it is turned into a binding court order.

Many disputing parties need additional help, which is when a mediator steps in and helps them in reaching an agreement. If mediation fails, as a last resort, one of the tribunal members from the BC Civil Resolution Tribunal makes a binding decision based on the evidence and submissions.

While the Solution Explorer and application form are online, the BC Civil Resolution Tribunal also has a human component in much of its services. This includes the intake staff, the mediators who work with the parties to achieve settlement, and the tribunal members who resolve disputes if that is unsuccessful.

Much of the focus of the BC Civil Resolution Tribunal is on providing the users with choices about where, when and how to resolve their disputes. It also emphasises on collaborative dispute resolution.

The decisions and orders of the BC Civil Resolution Tribunal are electronically validated and emailed to the parties, unless they’ve requested a mailed copy. They then need to take the order to a court registry or other government agency in order to enforce it.

Impact of the platform

The BC Civil Resolution Tribunal collects feedback from users via surveys. So far, the feedback on the services provided has been quite positive. According to the Participant Satisfaction Survey (2021),

96% users agreed that BC Civil Resolution Tribunal staff were professional in each interaction,
80% felt the CRT's online services weren't difficult to use,
89% agreed the CRT provided information that prepared them for dispute resolution,
84% felt their CRT dispute was handled in a timely manner,
82% didn't find the CRT process difficult to understand and
91% felt the CRT treated them fairly throughout the process.

One of the users of the platform expressed his satisfaction with the services offered by the platform saying “BC Civil Resolution Tribunal provided an easy and user friendly process to get the dispute resolved.” Another user remarked that there is no need to involve lawyers and that the services provided are affordable.

Role of enabling environment in the growth of the platform

The BC Civil Resolution Tribunal Act was created by the British Columbia Ministry of Justice, in response to a strong need in the condominium community for an accessible resolution method for everyday neighbour disputes. Because the platform was set up by the government itself, it did not encounter any regulatory barriers. It has exclusive jurisdiction over condominium, small claims and motor vehicle disputes disputes and the discretion to determine the method of hearing, among other procedural issues.

The platform coordinates with the courts to make sure they are aware of the format of the orders and understand how to make sure they are authentic. If users want to go directly to court without going through BC Civil Resolution Tribunal, there is a process in the legislation by which a person can apply to the court for an exemption, but this is almost never used.

Marketing strategy of the platform

The team at the BC Civil Resolution Tribunal initially used Google Ads to direct people with particular dispute types to the platform’s website, but that now happens organically as search engine rankings are optimised. Apart from Google Ads, the team also did a lot of outreach with community organisations, paid media, and community advocates.

Scaling strategy of the platform

The BC Civil Resolution Tribunal has scaled considerably over the last five years, gaining a new area of jurisdiction almost every year. Using the same general process and software, the platform has seamlessly scaled up by adding staff in proportion to new dispute volumes. The government’s decision to expand the BC Civil Resolution Tribunal’s jurisdiction to include new dispute areas was directly related to the tribunal’s success (reported monthly in participant satisfaction surveys) in providing accessible, understandable, timely, affordable, and fair access to justice.

Financial strategy of the platform

As a public sector body, the BC Civil Resolution Tribunal has faced challenges in receiving public funds that can be challenging in the current fiscal environment. Having said that, factors that help the platform in attracting funds are participant satisfaction, detailed data on case volumes and cost per case, as well as being able to demonstrate responsible use of taxpayer funds by operating a paperless, small footprint, remote operation.

Apart from receiving funds from the government, the BC Civil Resolution Tribunal also charges an application fee to users. Because the platform’s aim is to keep its services affordable, the fee exemptions have been decided upon after conducting consultations with community legal advocates.

Lessons learnt

Lessons that can be taken from the experience of setting up BC Civil Resolution Tribunal are:

One of the other key lessons that can be drawn from the experience of setting up the BC Civil Resolution Tribunal is that identifying a dispute area where the inconvenience for the public is very high, but the stakes are fairly low is a helpful starting point. This particular dispute area would have the opportunity to demonstrate success while also experimenting with a new dispute resolution method without resulting in significant consequences to the parties. In British Columbia, starting with condominium disputes and then small claims disputes demonstrates this approach. This also makes the project more manageable, because the product design can focus around one common, high-volume dispute type.
Initially, because the majority of the legal professionals in British Columbia were not familiar with a one stop shop dispute resolution, they were opposed to it. Much of that opposition has dissipated as the BC Civil Resolution Tribunal has become well-established and well regarded by the public. This indicates that good outcomes delivered by a new dispute resolution method can help in rallying the support of legal professionals.
When the BC Civil Resolution Tribunal gained jurisdiction over motor vehicle accidents, cases from the courts were redirected into the BC Civil Resolution Tribunal, which adversely affected the practice of personal injury lawyers so they resisted this change. While this did not prevent the BC Civil Resolution Tribunal from including motor vehicle accidents in its jurisdiction, it is important to note that when setting up a new dispute resolution system, legal professionals are likely to resist it if it affects their livelihood.
Initially, the team of the BC Civil Resolution Tribunal spent a lot of time speculating about user preferences in a group of lawyers and technology professionals. To improve upon this step, the team began user testing with the most vulnerable users.

Critical Success Factors

The factors has helped the BC Civil Resolution in scaling and improving its service delivery model are:

Having exclusive jurisdiction over small claims, condominiums and vehicle accidents helped the BC Civil Resolution Tribunal in attracting users . Although a few private options exist, the costs associated with using services offered by private mediators or arbitrators ensure that the majority of the claims are channelled towards the BC Civil Resolution Tribunal.
User satisfaction surveys with disputing parties post resolution of the dispute demonstrated that the services offered by the BC Civil Resolution Tribunal are accessible, efficient and affordable. This evidence of being able to provide good outcomes to users helped the platform in consistently receiving funds from the government.
The high level of satisfaction expressed by users with the services provided by BC Civil Resolution Tribunal can be attributed to its user-centred design. The following points describe the several features of BC Civil Resolution Tribunal that make it user-friendly:

While developing the procedures and software that will be used by the BC Civil Resolution, the team undertook user-testing with a focus on those who are most vulnerable and marginalised in the Canadian society such as new immigrants,those who don't speak English as a first language, new immigrants to Canada, people with physical or cognitive impairments and others.
The procedures that the BC Civil Resolution Tribunal takes the users through at every stage also address the users needs holistically. It starts with providing the users information that indicates the various pathways that the user can take to resolve the problem. Then it offers the users the chance to negotiate with the disputing party on their own, mediation and lastly, if nothing works, then adjudication.
For those who are not comfortable using web-based platforms, the BC Civil Resolution Tribunal offers paper-based or telephone based services.
To keep the services accessible and affordable ,the team consulted community legal advocates and thereafter granted fee exemptions to those facing financial hardships.

Authors

This case has been developed by Shannon Salter with suggestions from the HiiL team.

Source

Salter, S. (2017). Online Dispute Resolution and justice system integration: British Columbia’s BC Civil Resolution Tribunal. Windsor Yearbook of Access to Justice / Recueil annuel de Windsor d’accès à la justice, 34(1), 112–129.

BC Civil Resolution Tribunal (2021). Participant Satisfaction Survey, (blog).

Table of Contents

March 20, 2022February 15, 2023

Cases:

Case: Resolve Dispute Online

CASE

Resolve Dispute Online

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Photo by Resolve Disputes Online

One Stop Shop Dispute Resolution – Policy Brief / Case: Resolve Dispute Online

Key fact and figures

Year of establishment	2016
Scope of service	ODR, Access to Justice in the B2B Sector
Geographical scope	Global
Legal entity	Private company
Regulatory embeddedness	Independent of the government
Number of affiliated staff members	30
Citizen satisfaction	4 out of 5
Citizen impact reporting score	75%

Introduction

Resolve Disputes Online is a dispute resolution software that professionals, courts, tribunals, and Ombudsmen who provide alternative dispute resolution methods can use. Founded by Aditya Shivkumar and Joe Al-Khayat in 2016, Resolve Disputes Online has evolved from being a one stop stop dispute resolution centre that provides services to individual customers to being a dispute resolution software that hosts negotiation, mediation and arbitration. The software’s features include a case management system, secure file sharing, encrypted communications, brand integration and reporting of key statistics and performance indicators. Currently, Resolve Disputes Online has clients in the USA, South America, Africa, Australia and South East Asia. They include banks, insurance companies, solo practitioners, ombudsmen, alternative dispute resolution centres, courts and tribunals.

Operating method

Resolve Disputes Online provides a software solution to businesses who in turn provide dispute resolution services to individual customers. In theory, it is a B2b2C business, but the company’s main clients are businesses. So, the company experience’s an enterprise sales cycle where negotiating with the customer and closing the deal takes upto three months. The Global Head of Sales gives a demo to the customer as a first step. Then, the Head of Product Development and Global Head of Sales interact with the customer to understand their requirements – this is the diagnosis phase. Then Resolve Disputes Online makes a plan to configure their software solution to match the needs of the customer. Once the customer is satisfied with the solution that is being offered, the two parties sign the contract. Thereafter, Resolve Disputes Online install the software in the IT systems of the client.

Post installation, there is a two week period in which Resolve Disputes Online provides User Acceptance Testing. Here, the company trains the staff of the client company in using the software. Resolve Disputes Online encourages the client company to group its staff in user groups and assigns them different roles in relation to the product to ensure that the staff of the client company becomes familiar with the software. After that, the client can make the software public to its end consumers for the purpose of dispute resolution.

For the duration that the client uses the software, Resolve Disputes Online provides them technical support. The company supports the client in relation to technology-based queries, any further configurations required in the software and in resolving the end consumer’s problems. For example, if the claimant and the defendant – who are the customers of the client to whom Resolve Disputes Online is providing the software – have a problem in using the platform, they need to go to the client company. They are the end consumer’s first point of contact. If the client company is unable to resolve the problem, it forwards it to the technical support team of Resolve Disputes Online. If the problem is not resolved by the technical support team, then the Product Development team of Resolve Disputes Online takes care of it.

Therefore, unlike online dispute resolution platforms that provide services to consumers (B to C) where the consumer for the most part learns to use the platform on their own, Resolve Disputes Online has to hand hold the client for the entire duration of their collaboration.

Scaling

In 2011, the founders started off by providing mediation services in the UK via an online platform to consumers. Within three years, they realised that the market for this service was not ripe yet. This led them to develop Resolve Disputes Online that provides an online software for businesses instead of individual consumers. The Covid-19 pandemic accelerated the demand for online dispute resolution as a result of which the demand for ready-made dispute resolution software increased. Along with courts, tribunals and business, of late, solo practitioners have also begun using Resolve Dispute Online’s software. To sum up, Resolve Disputes Online has a clientele that includes courts, tribunals, alternative dispute resolution centres, banks, insurance companies, fast moving consumer goods companies and solo practitioners from all over the world.

In the past one year, Resolve Disputes Online has also moved from being a customisable software to a configurable software as a result of which it can provide its products a diverse clientele. In short, adapting the product is also helping Resolve Disputes Online in achieving scale.

Financial sustainability

Initially, when the company offered B to C services, it was entirely funded by the two co-founders and had to tackle scarcity of funds. Once Resolve Disputes Online began providing B to B services, it attracted more users as well as funds from investors. Over a period of time, Resolve Disputes Online entered into stable partnerships with courts, tribunals, alternative dispute resolution centres from all over the world, which stabilised their revenue model.

Marketing

The founders have consciously chosen to not market their product, they prefer to rely on word of mouth publicity. They believe that given that the online dispute resolution industry is still up and coming, a good product will attract attention with ease. This is proved by the fact that the majority of the pilots that the company conducted for clients, eventually converted into large scale projects. Having said that, while the company does not engage potential customers on Twitter, Facebook or LinkedIn, it does bring together important stakeholders via round table discussions to gain visibility and to create awareness about the merits of ODR.

Enabling Environment

A company like Resolve Disputes Online that provides software for dispute resolution is not as affected by rules and regulations as a platform that provides dispute resolution services would be. It has been able to function in different jurisdictions in the world with ease. However, for Resolve Disputes Online to scale exponentially, more courts, tribunals, and countries need to embrace online dispute resolution as one of the core components of the justice system.

Aditya Shivkumar, the co-founder of Resolve Disputes Online suggests

“Countries like India must have a centre, led by a chief justice innovation officer, that is dedicated to justice innovation in their formal justice system. The chief judicial innovation officer should promote innovation and technology in the justice system and the centre should be assigned the authority to digitise the rules and procedures of the formal justice system. This will also ensure uniformity, consistency and standardisation in the approach taken by courts in India when it comes to adoption of technology. For instance, a few Lok Adalats (alternative dispute resolution platforms) in India have begun using online dispute resolution technology, but not all. Similarly, the High Court in the state of Kerala went paperless in 2021, but the rest of the high courts in the country have not.”

Moreover, countries should set aside a separate budget to digitise the justice system which will enable them to purchase the softwares such as that of Resolve Disputes Online. For example, the UK government has earmarked 1 billion pounds to digitise court services. More initiatives like these where governments have the bandwidth to budget for online dispute resolution platforms, along with a centre that can institutionalise use of technology in the justice system are needed.

Lessons learnt

The main lessons that can be taken from the experience of setting up Resolve Disputes Online is to adapt the product to fit the need and demand in the market. The first venture of the founders of Resolve Disputes Online was a B to C company that provided online, dispute resolution services such negotiation, mediation and arbitration. But in 2011, the market for online dispute resolution was not ripe. Therefore, the founders switched to providing a software solution to businesses, which had more takers than the previous B to C model.

Critical Success Factors

Factors that played a critical role in the success of Resolve Disputes Online are:

Created a niche for themselves as service providers and catering to the government agencies as a clear product delivery option. Helped in scaling and creating a unique value proposition.
Looked beyond focusing on one jurisdiction to multiple jurisdictions - which helped in uniform product creation. This helped expand across countries. Which can be quite a win in the justice innovation sector which is usually quite geography specific.

Authors

This case has been developed by Manasi Nikam from the HiiL team after interviewing Aditya Shivkumar. The two interviews were held on November 9, 2021 and January 21, 2022.

Table of Contents

Cases:

Case: Utatuzi Center

CASE

Utatuzi Center

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One Stop Shop Dispute Resolution – Policy Brief / Case: Utatuzi Center

Key fact and figures

Year of establishment	2020
Scope of service/ Type of justice problems addressed	Alternative Dispute Resolution (ADR): mSMEs Property/Real Estate Individuals
Geographical scope	Kenya
Legal entity	Private company
Regulatory embeddedness	Independent of the government but have a working relationship with the formal justice system
Number of affiliated staff members	18
Number of cases resolved	30
Costs of services for citizens (average and range)	US$200 Tiered retainer
Average processing time	2 weeks to 2 months depending on complexity, compared to an average of 3-5 years for real estate disputes in the Kenyan courts

Introduction

Known as the ‘Silicon Savannah’, Kenya has become a hot spot for tech-based start-ups. Utatuzi Centre is one such start-up based in Nairobi that offers mediation and arbitration services facilitated by an online platform to small, medium and large businesses. Founded by three lawyers – Miururi Wanyoike, Josephine Wairumi and Erastus Njaga, the aim of Utatuzi Centre is to provide a convenient, affordable and effective way of resolving disputes.

Process of dispute resolution

While Utatuzi provides technological assistance such as the online platform, video-conferencing software and case management software, professionals who work in alternative dispute resolution work with disputing parties to resolve their problem. This combination of technology and alternative dispute resolution methods is what sets Utatuzi Centre apart from its competitors.

Disputing parties can choose from 150 mediators and 90 arbitrators with whose help they would like to resolve the dispute. These professionals are not full-time employees of Utatuzi Centre, they also work independently outside of the Centre. Although Utatuzi Centre is an online dispute resolution platform, mediators meet parties to the dispute in person if required.

User-centred approach

Knowing the importance of user-friendly platforms in service delivery, the founders took several steps to ensure that the Centre remains user-friendly. Given that a significant percentage of the population does not have access to the internet and internet-enabled devices (40%), the Centre assists customers in using the case management software and online platform. It has also developed a video-conferencing platform that allows users to participate in a call by clicking on a link, unlike Zoom and Google which require the user to go through additional steps such as downloading an application or signing up.

Utatuzi also collects feedback from users on the interface and ease of use of the online platform as well as on the satisfaction of users with the mediators to be able to improve the platform. However, information on how this feedback is used to improve the services provided is not available.

Financial sustainability

Utatuzi Centre has received grants from justice accelerators in the past. It also takes user fees from customers for the services they offer. On an average, the company charges 200 USD on a tiered retained basis where the fee is also dependent on the customer’s core business, revenue, team size, duration of existence, frequency and value of the disputes. As of now, Utatuzi Centre has resolved 30 cases so the revenue from user fees is quite low. This is because although the judiciary in Kenya is in favour of alternative dispute resolution systems, the people in the country have not embraced it yet. They still prefer resolving disputes using adversarial dispute resolution methods offered by courts.

To increase the demand for their services, Utatuzi Centre is reaching out to potential customers via social media platforms such as Facebook, Twitter and LinkedIn. So far, this strategy has not proved wholly successful.

Given that Utatuzi Centre is still in nascent stages of growth, the founders believe that exploring funding from investors such as venture capitalists or impact investors is not an option at this stage. Moreover, they note that managing the expectations of investors who wish to see very high growth rates in the business, becomes difficult for an enterprise that is just taking off.

Regulatory environment

The usage of alternative dispute resolution methods is promoted in Kenya as it has a high potential in reducing the backlog of cases in courts. But there are no specific regulations that support or regulate private alternative dispute resolution mechanisms such as the Utatuzi Centre.

On the other hand, at times lawyers advise everyday people to go to court instead of using mediation to resolve disputes, to protect their self-interest.

Conclusion

Set up in 2020, Utatuzi Centre is in the process of expanding its services and reaching out to more users as well as investors that can help in funding the platform. While developing the platform, the founders learnt the importance of adapting the platform to the needs of the users. They provide offline services and provide assistance to users in using the case management software.

Some of the challenges that Utatuzi Centre faces are attracting users, changing the mindset of everyday people as well as lawyers and encouraging them to use alternative dispute resolution mechanisms and attracting investments from private funders.

As the justice sector and people throughout the world are experiencing change and embracing innovation, it would be interesting to see how this Kenyan one stop shop dispute resolution charts out its path to scale.

Authors

This case has been developed by Manasi Nikam from the HiiL team after interviewing Muiruri Wanyoike, Josephine Wairimu and Erastus Njaga on November 16, 2021.

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