Findings

The following section provides a summary of some key findings from the 14 studies and media scan. The annotated bibliography and media scan provide information about specific types of technologies studied and explore issues related to the modernization of the family and civil justice systems that are outside the scope of this report.

Use of Technology Studies

Of the 14 studies identified between 2010 and 2020, six were from Canada, three were from the United States (US), four from Australia, and one from the United Kingdom (UK). Six of these studies focused on the family justice system (four of these Canadian, one Australian and one from the UK), eight more broadly on civil justice systems, and two on both the family and civil court systems. The studies included are as follows:

The term “technology,” within the documents reviewed, referred to a broad range of online platforms and services. Sourdin et al. (2019) classified the different types of technology in three ways: supporting those involved in the system (supportive technology), replacing elements of the system that were previously conducted by humans (replacement technology), and disrupting or fundamentally transforming the system (disruptive technology).

Types of studies

Five of the six Canadian studies were evaluations, program reviews or included a survey of program users. One of the international studies involved a statistical analysis of an online dispute resolution (ODR) platform compared to traditional court-based practices in the United States. These studies included an analysis of impacts of the technology on access to justice. The remaining studies were literature reviews.

Ten of the studies were published within the past five years (2016 to 2019) and four were conducted in 2012 and 2013. It is notable that all of the Canadian evaluations and program reviews focused on supportive and replacement technologies in British Columbia. Research into the use of disruptive technologies would benefit from similar rigorous forms of study over time.

Types of technology

The term “technology” is broad and encompasses a variety of tools. In the studies and articles reviewed, technology ranged from the use of telephones, printers, e-mail and monitors, to the use of artificial intelligence. However, the use of videoconferencing and e-filing/sharing platforms were discussed most frequently, especially in the media articles.

In Canada, prior to 2020, most reforms involved supportive and replacement technologies, whereas international studies also included the use of artificial intelligence, algorithms and automation for some administrative decision-making processes.

The studies between 2012 and 2017 mostly focused on supportive technologies such as telephone and videoconferencing that helped facilitate ODR or deliver programs (e.g., parenting after separation) remotely. The studies in 2019 focused on replacement technologies such as online digital platforms that replace paper-based processes, as well as disruptive technologies that use artificial intelligence and algorithms for decision-making and automation of court processes. The 2019 studies also called for a modernization of the family and civil justice systems by adopting new technologies. Annotations of the studies and media articles reviewed can be found in Annex A and B, respectively. A list of some of the online platforms and digital technologies identified in the studies is included in Annex C of this report.

Although there appears to have been an increase in use of technology between 2012 and 2019, technology was mainly used to address the need for remote access and to increase the efficiency of administrative processes. Technology was not widely adopted by family and civil justice systems until the COVID-19 pandemic.

During the pandemic, Canadian courts turned to videoconferencing technology to hear matters when public health measures restricted in-person court appearances. The use of online alternative dispute resolution options (e.g., mediation, arbitration and collaborative family law), the adoption of virtual platforms (e.g., Zoom) in the courts and electronic document sharing and filing became essential to keeping the court system operating. A list of some of the online platforms and digital technologies used by Canadian courts during the pandemic that were identified in media articles is included in Annex B of this report.

Increased Access to Justice

Canadian Context

A number of the Canadian studies found that technology helped increase access and/or enhanced the experience of individuals involved in the family justice and civil justice systems. Findings from these studies indicated that online web-based services provided considerable benefits that include the ability of users to access services remotely, reduced costs, enabled 24/7 access and mobile compatibility (MacLennan 2016). Online or virtual mediation improved access to services, administrative efficiency, and convenience. Clients saved time and money, and some highlighted the advantage of being physically separate from the other party (Tait 2013). Online parenting after separation programs were also found to be less expensive to administer than in-person programs. They allowed flexible scheduling, eliminated the need for travel and childcare, were able to reach more people, and were more accessible for people living in rural and/or remote communities without internet service (Tait 2016).

Online platforms were found to help empower users to identify, mitigate, or manage their legal issues; guide users to appropriate resources; and connect them with in-person services. These platforms help users improve their understanding of laws, legal options, and their responsibilities. Users felt more confident in seeking out legal information independently, and in understanding their legal issues (Malatest 2019). These Canadian studies highlight that it is important for the justice system to provide services that both empower the end user, especially self-represented litigants, and allow for quick and easy access to services or tools that may assist in resolving their legal dispute (MacLennan 2016).

In 2020, Canadian courts (family, civil and criminal) used a number of different technologies to help keep courts operating. These included telephone conferencing and videoconferencing (e.g., Zoom, Skype) for remote-hearings, settlement cases, ODR and mediation. New integrated case management systems and virtual platforms were also piloted,2 recognizing the need to further modernize the court system to enable access to justice within the public health restrictions. The pandemic highlighted a need to move beyond implementing a patchwork of technological solutions to allow for more integration of online technology with the older in-person family court systems.3

The Department of Justice Canada’s 2021 National Justice Survey, a public opinion survey of over 3,200 Canadians, asked how comfortable respondents would be in accessing the family justice system in a number of scenarios using technology. About 87% of respondents indicated that they were moderately or highly comfortable with looking for information and reading about the family justice system online, 80% with completing forms online using fillable PDF forms, and 71% with using videoconferencing platforms (e.g., Zoom, MS Teams, and Google Meet) for what would normally be in-person meetings, mediation, or court sessions (Justice Canada 2021).

Artificial Intelligence

Artificial Intelligence (AI) refers to software processes or automated systems that follow a set of pre-programmed/computational steps to analyze data to infer a probability of outcome. AI or automated systems are intended to improve access to justice by enabling clients to do all or some of their own legal work or by passing along cost-savings when lawyers use technology to work more efficiently (Bell 2019). Simple AI includes tools that guide users to a proposed solution to their problems. Questions and answers are generated based on the user's answers. For example, the British Columbia Civil Resolution Tribunal online is a tool that provides users with a “Solutions Explorer.” The tool includes simple questions for the user regarding their dispute, and based on those answers, provides legal information and tools, classifies the dispute, and provides the appropriate online application form (Cashman 2019; Bell 2019).4 Rechtwijzer, a similar online dispute resolution platform based in the Netherlands, guided separating couples to a solution based on points of agreement from a guided questionnaire (Bell 2019; Cashman 2019). The Rechtwijzer platform was replaced by a new platform, Uitelkaar.nl that guides separating couples to “design their own separation agreements” in a similar fashion (Bell 2019). More advanced AI tools include Lex Machina’s legal analytical platform that uses raw data from four different sources including state and federal courts, and provides predictive analytics on a variety of outcomes. These include: successful case strategies; likely responses/outcomes for judicial decisions based on the deciding judge’s decision history for a legal issue; previous litigation experience of opposing counsel including experience before specific judges and courts; among others (Sourdin 2019).5 From basic automated self-help modules to predictive analytics, AI tools can stream-line the legal process for both users and lawyers when interacting with the justice system, provide access to affordable options and increase efficiency and productivity for legal actors. However, these tools are not seen as substitutes for professional legal advice or adequately funded courts, legal aid, or community legal services (Bell 2019).

Online dispute resolution

ODR, initially developed as a digital platform to allow people to progress through low-value commercial disputes (e.g., Amazon, eBay, and PayPal) entirely online, can empower parties to resolve disputes early, while freeing up court and judicial resources to deal with complex matters (Cashman and Ginnivan 2019). Court-integrated ODR that combines various digital options (e.g., digital communication, uploading and responding to evidence online) can facilitate the quick resolution of most claims at a minimal cost in high-volume, low-value disputes, where parties are usually unrepresented and they are looking for a rapid resolution of the claim (Cashman and Ginnivan 2019).

Online platform technology is designed to work asynchronously and in real-time to limit barriers to access (Prescott 2017). Similar to a courthouse, the platform brings parties together to exchange arguments, evidence, and information and to come to an agreement (Prescott 2017). ODR removes or minimizes barriers caused by the cost, time and delay 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, allowing people to resolve disputes at the earliest opportunity and at minimal cost (Cashman and Ginnivan 2019). A statistical analysis of the United States’ Matterhorn online court platform found that users had faster closure rates, shorter case duration, faster compliance and lower default rates. Court efficiency was also increased with the online court platform (Prescott 2017).

Considerations for the Use of Technology

Although there is some evidence that technology has increased access to the courts (especially during the pandemic), as well as to family justice services, the studies also highlighted a number of limitations that are also important to consider.

One of the main considerations is digital inclusivity, where all individuals and communities including the most disadvantaged have access and can use information and communication technology (Toohey et al. 2019). A main barrier to access for some, is the availability and reliability of internet services or devices to use the internet due to costs or limited services available in rural or remote communities (Cashman and Ginnivan 2019). This includes the potential for technical difficulties while using web-conferencing services or limited ability to use some platforms (Tait 2013; 2016).

Difficulties arising from the inability of service providers (i.e., mediators) to read visual and non-verbal cues or address power dynamics when interacting through the online platform also affects service delivery (Tait 2013). There is also a need to ensure that online services/products address physical accessibility issues such as adjustable font sizes, vocabulary used, and navigability (MacLennan 2016).

These barriers disproportionately affect communities with the highest need for access to justice solutions (e.g., older people, people with disabilities, Indigenous people, people from lower socio-economic communities, people living in rural and remote communities, and people for whom English is a second language). Online platforms that do not address the connection between socio-economic disadvantages, low digital literacy and exclusion from the legal system risk contributing to further marginalization.

Although AI and automated systems are expected to increase efficiency and the availability of low cost options for some people, there could be ethical consequences if there is a move from the use of AI to provide legal information to its use to provide legal advice. Family law decisions are highly discretionary, whereas AI systems use algorithms to determine case outcomes based on a subset of cases from the courts that miss relevant information from cases settled outside of court. This assumes that the experience of a population provides the fairest outcomes for everyone. AI systems are not able to recognize systematic biases. There are also concerns that AI and automated programs may not be able to recognize or capture complicated issues within relationships such as coercion, control, or fear (Bell 2019).

The use of videoconferencing and online platforms (e.g., e-filing, document sharing, ODR, and online mediation) helped to keep Canadian courts operating during the pandemic. The media scan, however, identified a number of concerns with the sudden shift to relying on technology to keep courts operating. These included potential privacy and integrity issues with the implementation of online court proceedings, as well as barriers for some including disadvantaged populations that have limited access to Wi-Fi, cellphones and computers and those with low digital literacy. The media articles also discussed the need to move beyond adopting a patchwork of online platforms and resources within the existing court system to fully integrate technology and bring Canadian courts into the 21st Century.6

Footnotes

2 See the media articles between June and August 2020.

3 See the media articles between September and December 2020.

6 See the media articles between September and December 2020.