Annex A: Annotated Bibliography

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The articles in the annotated bibliography are presented in two sections. The first section pertains to the family justice system and the second pertains to the civil justice system. Within each section, the articles are organized alphabetically by author.

Family Justice Literature

Bell, F. 2019. “Family Law, Access to Justice, And Automation.” Macquarie Law Journal, 19, 103-132. Available at: https://www.mq.edu.au/__data/assets/pdf_file/0004/866290/Family-Law-Access-to-Justice-and-Automation.pdf

Purpose:

• The article explores the use of artificial intelligence (AI) within the Australian family justice system.
• It examines the potential benefits and negative impacts of using AI and automating court processing systems as part of a larger category of digital technologies aimed at replacing court processes operated by hand (e.g., paper-based forms).

Methodology:

• The author reviews literature about AI and automation and its implementation in legal practice by providing case examples of AI software programs.
• The author applies this knowledge to family law practice and discusses the benefits and concerns of AI and automation within this area of legal practice.

Key Findings:

• AI is an umbrella term that usually refers to software processes or automated systems. These systems follow a set of pre-programmed or computational steps to analyze data to infer a probability.
• Supervised machine learning can be useful in certain legal contexts (i.e., review of documents for discovery) and when combined with expert systems (e.g., decision trees), more sophisticated tools can be developed.
• AI or automated systems are believed to improve access to justice by enabling clients to do some (i.e., unbundling) or all of their own legal work or by passing along cost-savings when lawyers use technology to work more efficiently.
• Individual automation applications could be useful in addressing issues around costs to individuals and concerns over the delay and inefficiencies in the court system.
• Examples of AI for information provision and automated drafting:
  • Document assembly applications that assist in drafting legal documents for both litigants and lawyers;
  • Online guided interviews and guided form-filling software that walk users step by step through the litigation process and completes forms based on questions answered by the user; and
  • Do-it-yourself kits for different forms including divorce.
• Chatbots or expert systems, for example, Australia’s Settify is a family law client intake system where potential clients respond to a series of questions before their first in-person with a lawyer to help generate a list of instructions and save time.
• AI Predictive analysis applications examples include:
  • Big data can be used to provide lawyers and litigants with likely outcomes of a potential case based on similar cases (i.e., Australia’s Split-Up); and 
  • Machine text reading may enable automated programs to analyse large datasets to identify patterns without help from a human (i.e., Lex Machina).
• AI ODR examples include:
  • AI can be used as a third party mediator or decision maker (i.e., eBay’s Modria dispute resolution system); and
  • Rechtwijzer (“Road to Justice”), an online divorce resolution application from the Netherlands and British Columbia’s Civil Resolution Tribunal.
• Although AI and automated systems can make systems more efficient and increase availability of low cost options for some people; it can also lead to a two-tiered justice system where cost continues to be a factor in accessing lawyers. 
• AI and automated systems could have ethical consequences if they move from providing legal information to providing legal advice.
• AI predictive analysis uses court data so it misses relevant information from cases settled outside of court. 
• Family law decisions are highly discretionary, whereas AI uses algorithms to determine case outcomes based on a subset of cases. This assumes that the experience of a population provides the “fairest” outcome for everyone. It also assumes that past decisions are just and does not consider that they may not have been.
• AI and automated programs may not be able to recognize or capture complicated issues within relationships such as “coercion, control, or fear”.
• AI and automation can act as a supplement to family legal practitioners’ work. Practitioners should understand that there are limitations to AI and automated systems, especially with vulnerable populations.
• Increasing access to affordable options like “self-help” automated options is important; however, these options should not substitute professional legal advice or providing adequate funding for courts, Legal aid, or community legal services.

Greacen, J. 2019. “Eighteen Ways Courts Should Use Technology to Better Serve Their Customers.” Family Court Review, 57(4), 515-538. Available at: https://iaals.du.edu/sites/default/files/documents/publications/eighteen_ways_courts_should_use_technology.pdf

Purpose:

• The article outlines 18 ways to develop next generation (NextGen) court technology standards to simplify the family law process and increase the use of technology “to empower litigants” with tools.

Methodology:

• A literature review of family and civil justice literature, technology literature, court reports, and court websites.

Key Findings:

• Build court websites so that they are mobile friendly to make access to information easy.
• Enable litigants to use smartphones to present photo, video or other information in court rooms and enable the use of telephone or videoconferencing in court appearances (i.e., Bring your own device concept, any device can connect through wireless presentation system, Alaska’s Remote Telephonic appearance program).
• The use of scheduling software for processing convenience.
• Online payment structure for fees, fines and other financial obligations.
• Mapping software/interactive displays that provide a map of the courthouse and instructions on how to navigate the courthouse.
• Remote/online access to information and forms to simplify the completion of forms.
• Electronic document filing for self-represented litigants.
• Automating orders/judgment creation for efficiency (i.e., tagging data for draft order forms instead of using saved PDF images with handwritten notations, XML tagging, using a single data field within the court case management system to record all tagged data about a singular case).
  • Online triaging portals.
  • ODR.
  • Automated court messaging /court case notification guided messaging (i.e., includes reminders, just in time legal information, notifications of filings, court hearings, warnings and/or to-do items).
  • The use of available technology like smartphones or other electronic devices or applications to simplify services (i.e., recording serving of a summons).
  • Elimination of notarization requirement for court filings.
  • Adding additional identification information about litigants to their case management profile (i.e., e-mail address, physical disability, impairments; other special needs).

Hodson, D. 2019. “The Role, Benefits, and Concerns of Digital Technology in the Family Justice System.” International Family Law Group. Available at: https://www.iflg.uk.com/printpdf/989

Purpose:

• The article examines the benefits, impacts, and issues related to the use of digital technology within the family justice system for the administration, resolution, practice and access to justice.

Methodology:

• The author reviewed family law and justice reports from the United Kingdom’s government. 
• A review of programs and projects that have been implemented in a variety of countries including the United Kingdom, Australia, Singapore, and the Netherlands was also done.

Key Findings:

• The author explores four distinct elements of the justice system and their relationship with digital technology, specifically a) the administration of justice, b) the resolution of justice, c) the practice of justice, and d) access to justice.
• Some administrative processes could be streamlined by being moved online to increase efficiency and accessibility.
  • Automation of/standardization of forms and/or orders to provide ease of use for both self-represented-litigants and legal practitioners. 
  • Digital e-filing and storage (i.e., United Kingdom government online divorce e-filing pilot).
  • Digital bundling of required documents & digital unbundling of services.
  • Use of intranet spreadsheets for financial documentation to store, share and organize information within the courthouse or jurisdiction.
  • Document display systems in courtrooms.
  • Computer assisted transcription.
  • Pre-recorded or remote examinations (similar to ones used in criminal courts).
• Digital technologies can be used in the adjudication process to achieve cost savings and efficiencies.
  • AI predictive analysis could produce similar outcomes for simple cases or be used for fact-finding and investigation. However, family law data is limited to cases before the courts.
  • Use of online applications to simplify case processing do not require courtrooms or courthouses (i.e., eBay Modria Dispute Resolution System). Online arbitration uses online applications, electronic hearings and digital communication and questioning between parties and arbitrators, analysis of cases, and award writing.
• Family justice practitioners are changing the way they deliver legal services with the increase in technology including unbundling of services so that clients do not need a lawyer throughout. 
• E-mediation and e-negotiation (through videoconferencing) requires new skills, working practices, boundaries and training.
• Netherlands Rechtwijzer divorce platform allows for faster processing of simplified cases without removing the need for legal specialists.
• Digital technology can only lead to increased access to justice if people are able to use the technology.
  • People need to be able to access the technology and have digital literacy.
  • Access to the internet is an issue for some due to poverty but also in some rural and remote areas.
  • An individual’s ability to engage with online court processes can also be impaired by emotional distress, which legal practitioners are trained to address. 
• Ensuring that the emotional needs of children and the needs of victims of domestic violence are met are important challenges for any on-line approach.

MacLennan, S. 2016. “Empowerment, Technology, and Family Law.” eAccess to Justice. 197-209. University of Ottawa Press. Available at: https://ruor.uottawa.ca/bitstream/10393/35566/1/9780776624303_eAccess.pdf

Purpose:

• Strategies for successful online service delivery are presented based on lessons learned from British Columbia’s Legal Service Society’s (LSS) family law public legal education and information (PLEI) service initiatives.

Methodology:

• A review of LSS online programs and initiatives provide case examples of successful online service delivery.

Key Findings:

• Although the digital divide between impoverished communities and communities with greater access to digital services is still operating, online services should be implemented (with supplement print services where needed).
• Online services provide considerable benefits that include the ability of users to access services remotely, reduce costs, 24/7 accessibility and mobile compatibility.
• It is important to provide services that both empower the end user and allow for quick and easy access to solutions for their legal matters.
• Online services and products should address physical accessibility issues (e.g., adjustable font sizes, vocabulary used, and easy navigability). LSS expanded its products to include a live chat service that directs users to relevant information.
• To inform content development, LSS collaborated with an advisory committee and undertook community consultations to ensure online resources meet user needs.
• LSS implemented user testing and listening labs to adapt the design of court forms, including a successful interactive “do-your-own-separation agreement.”
• A network of advocates, community intermediaries, members from the private Bar, legal aid offices, local agents and community partners are part of the LSS network and have trained staff to assist end-users with online LSS services.
• Using games and gamification, to educate users, as well as using game design principles to motivate users to complete online tasks.
• Interactive question and answer modules, guided pathways, lead users to desired resources. This approach can help users navigate online platforms without feeling overwhelmed. (i.e., Netherlands Rechtwijzer divorce platform).
• Use of emotional design principles that both empower the user and encourage completion can be impactful within online delivery platforms. In addition to guided pathways, the use of reflexive questions can lead users to more positive outcomes.
• Integration of PLEI and services, like guided pathways, with online service delivery platforms like ODR could optimize service delivery (e.g., Rechtwijzer links family law PLEI using guided pathways and a suite of online services such as negotiation online mediators and aftercare).

R. A. Malatest & Associates Ltd. 2019. “MyLawBC Evaluation.” Prepared for British Columbia Legal Services Society. Available at: https://legalaid.bc.ca/sites/default/files/2019-06/MyLawBCevaluationReport2019_0.pdf

Purpose:

• This report presents the results of an evaluation of MyLawBC and related pathways between 2017 and 2019.

Methodology:

• Pop-up survey on MyLawBC (n=1823), user feedback survey (n=397), interviews with justice stakeholder representatives (n=18), interviews with MyLawBC pathway users (n=10), and Google analytics web traffic data (October 1, 2017 – January 31, 2019).

Key Findings:

• MyLawBC is an online platform that uses online tools to create customized plans, actively guides people to resources, and connects people to in-person resources.
• Majority of site users reported improved understanding of laws, legal options, and their responsibilities. They felt more confident in seeking out legal information independently, and understanding their legal issues.
• Justice representatives were positive about the site as it allows users to self-advocate, but indicated that the tools and information apply to limited, narrow circumstances. Those with more complex legal issues require more assistance.
• Although the site appears to be improving access to justice for straightforward legal issues, there is demand for additional or expanded tools, as well as translation of the tools so that they are accessible to non-English speakers.

Tait, C. 2013. “Evaluation of the Distance Family Mediation Project: Report on Phase lll of the Technology-Assisted Family Mediation Project.” Prepared for Mediate BC Society. Available at: https://www.mediatebc.com/sites/default/files/Distance-Family-Mediation-Evaluation-Report-FINAL.pdf

Purpose:

• The Technology-Assisted Family Mediation Project (or Distance Family Mediation Project) was a multi-phase project which took place between 2007 and 2012.
• Its primary objective was to demonstrate the potential of using technology to provide quality mediation services to families in British Colombia and possibly across Canada.

Methodology:

• Review of program documents, practice guidelines developed during the pilot project, records regarding inquiries, pilot project mediation cases, and British Columbia demographic data.
• Survey of clients (paper and on-line).
• Telephone and in-person interviews of Project Mediators.

Key Findings:

• Mediators preferred video-enabled technologies when assessing safety issues at a distance compared to landline telephones, cell phones, and e-mail.
• Mediators suggested that low conflict cases where both parties are comfortable with technology are the best suited to distance mediation. However, given that parties are physically not in the same room, distance mediation could also be beneficial for high conflict cases.
• In addition to improved access to service, efficiency and convenience, clients highlighted the advantage of being physically separate from the other party, and that they saved time and money.
• Full or partial settlement of issues was achieved in 85% of cases that used web-conferencing, which compares to settlement rates for other family mediations where technology was not used.
• Just over half of the mediators felt that the difficulty of achieving an agreement was about the same for distance mediation as for in-person mediation, however, some felt that parties’ commitment could be slightly less in distance mediation.
• Web-conferencing was able to simulate face-to-face mediation, yet there was the potential for technical difficulties.
• Overall, between 60% and 70% of clients were either satisfied or very satisfied with the mediation process and their outcomes.
• A third of client survey respondents would not have been able to use an alternative service to resolve their issues if the distance mediation service had not been available.
• Clients chose distance mediation because they and the other party lived in different communities; there was a desire to avoid travel or in-person mediation, the flexibility of hours, reduced fees, environmental reasons and a preference for communicating using technology.
• Telephone was used more than web-conferencing among 40-49 year olds. Those with lower incomes used web-conferencing and telephone/cell phones in nearly the same proportion, while those of higher incomes used the telephone much less.

Tait, C. 2016. “Evaluation of Online Parenting After Separation.” Prepared for Ministry of Justice: Family Justice Service Division. Available at: https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-services-branch/fjsd/opas-report-phase2.pdf

Purpose:

• This report presents the findings from a two-phase evaluation that compared results from the Online Parenting After Separation (OPAS) Project to the in-person Parenting After Separation (PAS) in British Columbia.

Methodology:

• The evaluation analyzed OPAS and PAS participation data, client feedback and court data from the pilot OPAS sites and six in-person PAS sites for comparison.
• The comparison sites were Kelowna, Prince George, Nanaimo, Abbotsford, North Vancouver and Chilliwack.

Key Findings:

• Both the OPAS and PAS had more people register than complete the course. Although the OPAS had a larger drop-off rate than the in-person PAS sites during the pilot period, when controlling for court activity, completions for OPAS and PAS were similar.
• Seven to ten months’ post-participation, PAS participants were more likely to have spoken to a mediator or had mediation sessions, while OPAS were more likely to have spoken to a lawyer.
• Overall diversion rate from court was 11% for PAS participants and 9% for OPAS participants.
• Both PAS and OPAS participants gave positive ratings to convenience and ease of use of the courses, satisfaction and willingness to recommend the courses to others, and the achievement of intended learning outcomes.
• Advantages of the PAS course are based on the interactive nature of the sessions between parents who attend and the facilitators, whereas the disadvantages were the inconvenience of session schedules and the limited availability of locations.
• The advantages to OPAS are the convenience of the schedule, not needing to travel or to find childcare, ability to reach more people than PAS, it is less expensive to administer than PAS and can be accessible in smaller communities with internet service, where it may not be possible to have in-person sessions.
• Disadvantages to OPAS are the lack of interpersonal interaction that normally happens in-person, technical issues, need for high-speed internet, access to a computer and/or a webcam and other equipment and English literacy.

Civil Law Literature

Cashman, P. and E. Ginnivan. 2019. “Digital Justice: Online Resolution of Minor Civil Disputes and the Use of Digital Technology in Complex Litigation and Class Actions.” Macquarie Law Journal,19,39-79. Available at: https://www.mq.edu.au/__data/assets/pdf_file/0012/866289/Digital-Justice.pdf

Purpose:

• The article examines how digital technology is used to resolve high-volume minor claims at low-transaction costs and compares its use in large-scale complex class action cases.
• Specifically, the article examines technology use in client intake, claim management, discovery processes, trial procedures and the implementation of settlements.

Methodology:

• A literature review examines the use of digital technology in Australian and Canadian civil courts and their incorporation of ODR.

Key Findings:

• The justice system often lags behind the rapidly changing society that is increasingly reliant on digital technology.
• ODR was initially developed as a digital platform to allow people to progress through low-value commercial disputes (i.e. Amazon, eBay, PayPal) entirely online. This process may include the use of information delivered through guided pathways, blind bidding, hybrid alternative dispute resolution (including facilitated negotiation and early neutral evaluation, either with human input or artificial intelligence algorithms), digital communication (such as remote or video participation in hearings and asynchronous messaging), and uploading and responding to evidence online.
• Court-integrated ODR has had the greatest effect in high-volume, low-value disputes, where parties are usually unrepresented and are looking for rapid resolution of the claim.
• Combining various digital options and methods that can facilitate the quick resolution of most claims at a minimal cost should be adapted to other types of claims resolution.
• ODR can empower parties to resolve disputes early, while freeing up court and judicial resources to deal with complex matters.
• Examples of ODR include:
  • Victorian Civil and Administrative Tribunal (VCAT) small claims project and the Legal Services Commission of South Australia family law platform in Australia;
  • British Columbia Civil Resolution Tribunal (CRT), a mandatory forum for small claims disputes under $5,000 and all strata property claims;
  • Money Claim Online in the United Kingdom allows people with claims up to £10,000 to issue a claim, file a defence and attend online mediation;
  • Traffic Penalty Tribunal in the United Kingdom allows parties to share evidence, continuous hearings through asynchronous messaging, and e-decisions;
  • Rechtwijzer in the Netherlands was (it was discontinued after three years due to cost) an online platform for resolving relationship disputes that enabled online dialogue between the parties, mediation, adjudication and neutral review of all agreements;
  • Matterhorn from the United States is a cloud-based ODR platform that deals with high-volume claims through real time or asynchronous communication, sends reminders to parties and a third party facilitator, mediator or arbitrator can assist with the resolution of claims; and
  • European Union’s ODR platform offers automatic translation, facilitates the resolution of consumer complaints arising from online transactions.
• ODR is one means to remove or minimize barriers caused by the cost, time and delay involved in going to court by:
  • removing the justice process from physical locations;
  • moving from a synchronous (at the same time) to an asynchronous (at different times) process to make it convenient; and
  •  enabling people to resolve disputes at the earliest opportunity and at minimal cost.
• ODR relies on parties having both digital access and ability to navigate an online platform. A platform that does not address the connection between socio-economic disadvantage, low digital literacy and exclusion from the legal system risks contributing to further marginalization.
• ODR can both expand open justice by making processes more transparent but also more opaque given that proceedings are removed from the public realm.
• The permanence of information and evidence exchanged via ODR is a concern, as some sensitive information could be misused in the future.
• ODR can strengthen procedural fairness by allowing creative thinking about how to make the process fairer. However, it depends on how the ORD platform is structured.
• The tension between the desire for individual justice and the need to resolve disputes quickly, efficiently and economically needs to be creatively resolved.

Prescott, J.J. 2017. “Improving Access to Justice in State Courts with Platform Technology.” Vanderbilt Law Review, 70, 1993-2050. Available at: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2912&context=articles

Purpose:

• The article explores the outcomes of implementing an ODR platform to improve access to justice in Michigan.

Methodology:

• A statistical analysis compared the ODR platform Matterhorn with traditional court-based practices in civil actions.
• The case study used regression analysis to compare case duration, percentage of fines and fees due that are paid at case closure and the case default rate to in relation to access to justice and efficiency of courts.

Key Findings:

• Access to justice in courts has predominately required access to physical courthouses and the in-person, real-time availability of justice system decision makers.
• “Physically going to court costs money, takes time, creates fear and confusion, and presents both real and perceived risks.” (p. 1996)
• For complex litigation that require credibility determinations and have diverse forms of evidence, the costs of being physically in a courtroom can be made; however, for cases that are straightforward and decisions can be made based on paper the need to physically go to court is less evident. 
• The use of ODR platforms have re-envisioned the way people go to court.
• Technology has the potential to reduce the non-legal costs related to using brick and mortar courthouses and increase access to justice including:
  • Physical costs that limit courthouse access (i.e., limited access to dependable transportation, accessibility for individuals with physical/mental disabilities and vulnerable populations);
  • Psychological costs that limit the ability of presenting oneself in court (i.e., anxiety, fear, stigma, confusion, shame); and
  •  Economic costs due to courts operating during set business hours (i.e., cost of transportation; employment or other opportunity losses; lack of/cost of childcare)
• Most of the technologies implemented in the United States could be categorized as remote or online legal aid, online form completion, video technology, triage services, mobile access and online case resolutions.
• Technology has been used as an access point to traditional court processes to help track cases, integrate scheduling, online payment for paying fines and reduce backlogs.
• Online platform technology, similar to a courthouse that brings parties together to exchange arguments, evidence, and information and agree to a particular outcome, attempts to accomplish what courthouses seek to achieve by operating in a virtual space.
• Platform technology is designed to work asynchronously and in real-time through text, voice and video to limit barriers to access.
• Matterhorn facilitates ODR by including a third-party decision maker to resolve civil disputes (i.e., traffic infractions, outstanding warrants).
  • The platform applies eligibility criteria to determine if a litigant’s matter can be resolved through online resolution. The litigant retains the option of using the in-person court processes.
• Results showed that Matterhorn users had faster case closure rates, shorter case duration and faster compliance (increasing court efficiency) as well as lower default rates.
  • This type of platform technology could help in providing better efficiency in handling at-risk for default cases earlier in the resolution process.
  • It could also help improve compliance in terms of fees and fines as improving access to decision makers could encourage more productive relationships between litigants and court actors or law enforcement.
• Although perception of procedural fairness while using Matterhorn by litigants was beyond the scope of the study, survey results showed positive experiences for users in terms of accessibility and ease of use.
• Online platform technology can reduce case duration; improve litigant satisfaction; and ensure that the public see courts are open, responsive, efficient and effective.

Salyzyn, A. 2012. “A New Lens: Reframing the Conversation about the Use of Video Conferencing in Civil Trials in Ontario.” Osgoode Hall Law Journal, 50(2), 429-463. Available at: https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1026&context=ohlj

Purpose:

• The article examines the use of videoconferencing in Ontario courtrooms for witness testimony in civil trials and its transformative potential.

Methodology:

• A literature review of reports assessing the use of videoconferencing, Ontario case data and legal literature. 

Key Findings:

• Videoconferencing technology alters the interaction between court participants within the physical composition of the courthouse.
• Videoconferencing may impede assessments of credibility depending on the witness (i.e., children are less believable than experts)
• Studies have found that videoconferencing technology can impede emotional connections between courtroom participants and lead to harsher treatment from judges and other adjudicators.
• Caution is warranted, as the impact of videoconferencing on different populations is still unclear and could lead to unequal justice. Vulnerable communities may disproportionately experience the possible negative effects court technologies could have on the quality of adjudication.
• Although videoconferencing holds promise in making courts more accessible for northern populations, the quality of this access is an important consideration.
• Videoconferencing technology opens up the possibility of multiple, simultaneous, and interactive sites of adjudication. However, by disrupting the geography of the adjudication process, videoconferencing can impact the solemnity and respect of the civil justice system.
• The public nature of courts contributes to the function of democracies, removing this aspect can underwrite the legitimacy of the legal system.
• Considerations for increasing the use of videoconferencing need to move beyond discussions of cost and efficiency.

Schellhammer, E.P. 2013. “A Technology Opportunity for Court Modernization: Remote Appearances.” Prepared for Association of Canadian Court Administrators & Canadian Centre for Court Technology. Available at: https://silo.tips/download/a-technology-opportunity-for-court-modernization-remote-appearances

Purpose:

• This paper explores how remote appearances are currently being used by courts, under what circumstances they are appropriate, who can appear remotely, and how technology can be employed to improve court efficiencies and promote access to justice.

Methodology:

• A survey of court participants (n=218).

Key Findings:

• Knowledge of existing practices for remote appearances or the availability of the technologies would be helpful in the decision-making process (for both litigants and justice actors).
• Review of existing approaches in a variety of jurisdictions would be helpful to understand current developments and how they could be adopted across Canada.
• There needs to be standard protocols and best practices for court usage.
• Remote appearances may be helpful to geographically isolated Canadians.
• Common law principle of adversarial confrontation and the solemnity of court needs to be reconciled with implementing new technologies like remote appearances and honouring the underlying principles of the justice system.
• Efficiency is one of the main advantages to using remote appearances due to the benefit of cost-saving within the court process. However, these efficiencies need to be carefully assessed to ensure that the principles of fairness are maintained throughout the process.

Sourdin, T., B. Li and T. Burke. 2019. “Just, Quick and Cheap: Civil Dispute Resolution and Technology.” Macquarie Law Journal, 19, 17-38. Available at: https://www.mq.edu.au/__data/assets/pdf_file/0008/866294/Macquarie-Law-Journal-Vol-19.pdf

Purpose:

• The article explores how technology may assist civil dispute resolution approaches through an examination of the benefits and concerns identified for different categories of technologies (supportive, replacement, and disruptive).

Methodology:

• A literature review of current and potential technologies that can be implemented within the civil justice system.

Key Findings:

• The different types of technologies that are being used in dispute resolution can be categorized into the following: supportive technologies (e.g., free online legal applications); replacement technologies (e.g., videoconferencing) and disruptive technologies (e.g., artificial intelligence (AI)).
• The following intended and unintended consequences were identified when implementing technology:
  • Perceptions that technology can affect procedural fairness, quality, timeliness and objectivity;
  • Accessibility of technologies; are they easy to use and available to vulnerable or geographically isolated populations?
  • Ability to access services based on age, geographical location and economic circumstances;
  • The procedural process is further removed with the use of technology, where limited visibility impacts the public’s perception of justice “being done”; and
  • Implementation of technologies could be affected by the cost and/or readiness of different sectors.
• Supportive Technologies: assist with informing, supporting or advising individuals through the civil justice system. Although limited in providing resources for complex legal issues, supportive technologies like online education resources and free legal applications can help individuals find appropriate legal information and advice (i.e., free legal service apps), e-counselling, videoconferencing (i.e., Zoom, Skype).
• Replacement Technologies: often use videoconferencing or other platforms to replace certain functions or actions completed in-person and can alleviate some issues faced by geographically isolated individuals (i.e., British Columbia CRT, Family Relationship Advisory Line (FRAL) in Australia).
• Disruptive Technologies: change how judges and legal professionals administer justice through the use of artificial intelligence (AI) to make judicial decisions, utilizing big data for inferential and predictive analytics (i.e., Deadbeat Map that pinpoints locations of debtors in China, Lex Machina - data analytical tool), and automation to evolve court IT operating system capacities. There are concerns related to visibility of the judicial process, ethical concerns and how AI could affect the executive role of the judiciary were raised.
• Proper implementation of technologies and approaches requires the civil justice system to devise programs that consider the overall interaction between court actors and litigants to “ensure due process is followed.”
• The unbundling of legal services is suggested as clients are more likely to seek limited scope services (supportive technologies) when trying to resolve disputes.
• Preserving the concept of open justice includes maintaining the perception of administrative fairness and access to justice.
• When using technology for dispute resolution it is important to consider efficacy versus system efficiency. How courts remain just without losing the quality of “just” resolutions, especially when considering whether processes are considered just and fair.

Toohey, L., M. Moore, K. Dart and D. Toohey. 2019. “Meeting the Access to Civil Justice Challenge: Digital Inclusion, Algorithmic Justice, and Human-Centred Design.” Macquarie Law Journal, 19, 133-156. Available at: https://www.mq.edu.au/__data/assets/pdf_file/0008/866294/Macquarie-Law-Journal-Vol-19.pdf

Purpose:

• This article explores two of the most significant challenges to the use of technology in Australia to increase access to civil justice, digital inclusion and algorithmic justice.

Methodology:

• A review of literature is used to explore the scope of technological change in civil justice that ranges from the delivery of legal information to automation platforms.

Key Findings:

• Technological innovations that have the potential to greatly impact access to justice in civil disputes include:
  • new ways of delivering services (i.e., e-courts, electronic filing and online call-overs);
  • facilitating self-help by providing user-friendly, free or low cost online tools like court forms, videos and legal information;
  • unbundled generators for filing legal documents; use of mobile legal apps; and
  • development of automation platforms.
• Access to justice encompasses both procedural and substantive justice. There is a need to ensure that justice is still seen as having a level of integrity and accuracy as well as ensuring that the justice is timely, at a low cost and consistent with human rights frameworks.
• Digital inclusivity recognizes that there are barriers for communities that are most in need for access to justice solutions (i.e., older people, people with disabilities, Indigenous people, people from lower socio-economic communities, rural and remote communities, and people for whom English is a second language). This can result in a two-tiered system of justice.
• Algorithmic bias refers to situations where the rules that form part of an algorithm are biased or technology fails to perform the required rules resulting in a bias, or a combination of both.
• “Black Box Tinkering” is a method that involves presenting an algorithm with different scenarios to reveal the decision making process and identify any biases.
• Legal design recognizes that users are key to innovating legal systems by focusing on how usable, useful, and engaging legal services are.

Wolf, J.M. 2012. “Collaborative technology improves Access to Justice.” New York Journal of Legislation and Public Policy, 3, 759-790. Available at: https://www.nyujlpp.org/wp-content/uploads/2013/01/Wolf-Collaborative-Technology.pdf

Purpose:

• This article explores ways to use interactive collaborative technology via the Internet to improve access to justice for people without representation by lawyers (PRLs).

Methodology:

• A review of policies and legislation across the United States.

Key Findings:

• Low and moderate income Americans address their legal matters without assistance of lawyers.
• PRLs suffer negative case outcomes largely due to unfamiliarity with basic procedural concepts.
• Collaborative technology should be used to help PRLs in accessing solutions and resolving disputes through more appropriate means than litigation.
• Collaborative technology, interactive software and services via the Internet, (i.e., ODR, online document assembly services, unbundling and delivery technology, and the creative adaption of familiar technologies) for unbundling enable PRLs to resolve disputes through means that are more appropriate than litigation. They aim to reduce PRLs’ legal knowledge deficit, make traditional legal and alternative dispute resolution services more accessible and affordable to close the justice gap.
• ODR include automated online triage systems to help PRLs select the most appropriate dispute resolution forum such as:
  • British Columbia Resolution Centre (Modria algorithm); and 
  • Juripax (Netherlands and Germany) and The Mediation Room (United Kingdom) offer mediators and parties full service ODR environments.
• Online document assembly Services which aid PRLs in processing court documents, for example:
  • A2J Author (United States): a free tool to build and implement web-based court forms, and uploads onto a server. PRLs can use guided interview software to complete and print ready-to-file court documents;
  • EZLegalFile (United States): online document assembly and data collection services for PRLs;
  • I-Can! Legal (United States): helps PRLs in completing court forms;
  • Legal Genie (LASOC): an assisted question and answer system to complete court forms and pleadings, which can also connect PRLs to an attorney to review documents and offer legal advice; and
  • Legal Services National Technology Project, Pro Bono Net, LegalZoom and LawHelp.
• Technology for unbundling and delivery of legal services include:
  • RocketLawyer: online tool recommending legal services, enables form completion, document review by a lawyer, low cost retainer services and a “Find a Lawyer” service; and
  • AVVO and LawPivot: online lawyer crowdsourcing that offers free “Ask a Lawyer” consultation services.
• Creative adaptation of familiar online technology such as: videoconferencing, online video instruction, online “Ask a Librarian” services, online workplaces, electronic charting, and online mind mapping services.

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