Artificial Intelligence and Family ODR

What is Artificially Intelligence really? Why are so many people so enamored with it? And, how will AI impact legal services, especially for small firms or sole practitioners today and into the future?

What it is

In the last ten years Artificial Intelligence (AI) has become a buzzword hovering over many industries, including the legal industry. It is a concept that we all think we understand based on the media or our own experiences with Amazon’s Alexa, Apple’s Siri or IBM’s Watson.  Yet, the fact is that the majority of us have little to no understanding of AIs current practical application in our own industry or what it may mean to our practices tomorrow.  To some, the potential of AI spreading and growing throughout the legal sector feels almost Orwellian-like partners or worse—replacements– who will deliver better, faster, and cheaper legal services.

Artificial intelligence (AI) is a broad term that encompasses a wide umbrella of technologies designed to help computers understand key concepts, relationships, and complexities through the analysis of large data sets. Unlike most of the legal software we have all used to date, cognitive AI tools are trained as opposed to programmed.  They are tools that automate logic-based processes, help make decisions or actually taught to make decisions rather than just simply keep our information organized in our workflow processes.

AI powered platforms now have the capacity to consolidate great amounts of human knowledge, make sense out of disparate data sets, translate information, organize it into patterns, test it for consistency, and then generate useful output.  The outcome? A machine-generated imitation of intelligent human behaviour where computers are increasingly performing tasks that have in the past required specialized human skills and intelligence. For example, AI-based Family Law platforms are highlighting real life, often overlooked human details, linking them to relevant legal information and providing suggestions for lawyers negotiating agreements.

As AI tools continue to make their way deeper into the legal industry, some have voiced concerns that the technology will remove the human aspect of legal services, leaving clients in the care of robots and machines.  They imagine a justice journey evolving into the equivalent of the automated customer care phone-based voice recognition services used by the retail, hospitality and banking industries.

But that’s neither the case, nor direction AI-based legal technology is taking.   AI-based legal solutions are useful tools because they can simplify complex processes.  In and of itself, AI is not good or bad and surely not the magic solution to every problem.  Still, intelligence itself is core to what makes us human, and AI can be an extension of that very human quality. Done right, AI actually helps legal professionals accentuate human capabilities, helping us to humanize what are often very dehumanizing processes. The ultimate paradox is that AI is proving to be very powerful catalyst for reclaiming people-centric skills.

This is particularly true with family law.  Consider the financial disclosure process.  A critical and necessary step in separation and divorce, but in and of itself, perhaps one of the most frustrating and dehumanizing processes as it dismantles the history of clients’ relationships into lines of assets and liabilities, dollars and cents. 

Clients struggle, spending countless hours gathering, submitting and explaining a vast array of documents and financial variables with their lawyer.  And, many are frustrated at the real and human cost of this exercise.  Rather, clients want to tell the story and provide the context so that the lawyer can help guide them with mindful decisions.  AI-based systems have made this process efficient, faster and easier, ultimately enabling the family law professional to provide the thoughtful wisdom their clients retained them for in the first place.

Another promising example of AI is Natural Language Processing, which takes the form of language recognition. This AI delves into the meaning, intent and tone of our language, our words, and our sentiments and derives insights that help to better mimic human communication.  Known as Tone Analyzing Software, this natural language processing can detect joy, fear, sadness, anger, and other emotions found in submitted text.  The analyzer interprets the communication sentiment of text and makes suggestions on how it can be adjusted to reach a more neutralized, more simplified, straightforward or even less adversarial tone. The result is a message that improves communication between the disputant parties, minimizes unnecessary disputes and decreases the overall level of hostility.

PRACTICAL USE FOR LAWYERS

An entire generation of lawyers are now charting a course towards legal innovation, led by AI-infused technologies. This is creating significant benefits, both for the legal profession and to their clients.

First and foremost is the delivery of more cost-effective services. For example, a lawyer using an AI legal research platform can save on time and costly resources used in researching and solution generating. This enables them to spend more effort on cases and statutes that provide direct value to the client’s situation.

And, AI is not just for the big firms or those in the area of contract law. Sole Practitioners and small firms are finding widespread AI implementation in numerous legal processes such as predictive analytics, court integrations, risk management processes, client triaging, and more.

Take, for example, smart marketing.  AI applications will highlight a client’s legal needs and then matching them with service providers who can best resolve that specific need. Chatbots, directional marketing, and automated online client intake solutions extract the most relevant data from a client—saving time for both the client and the lawyers—and distil it to the need-to-know information back to the service provider in real time.  From a lawyer’s perspective, this reduces the initial (and oftentimes free) consultation to determine if this is a client, or a case appropriate to their particular practice.

And perhaps while obvious, it is worth highlighting  that these online solutions address the access to legal services that often plague remote communities by making legal resources available whenever and wherever is most convenient to the client.

ONLINE DISPUTE RESOLUTION AND AI

Online Dispute Resolution (ODR), a growing legal technology being endorsed and adopted more and more by courts for Alternative Dispute Resolution (ADR) through online negotiation, mediation or arbitration, is also benefiting from AI development.  In Family Law, AI is being leveraged to address the human-centered pain points involved in family matters, like never before.  Here, AI is helping participants to not only deal with the symptoms of the legal problem but also direct attention to the root cause of the dispute that would otherwise continue to inflame tensions if not properly resolved.  For example, with AI driving financial calculations and assessments, and highlighting specific issues for resolution, the parties become more focused in their online meditations and negotiations, with far less emotional strife.

Now, that is not to say that traditional family law software, which typically deals with the administrative portions of the process such as scheduling, communications, and document generation are not benefiting from AI.  With these solutions, AI improves efficiency, resulting in a more “convenient” justice journey.  However, when AI is geared toward the core “dispute resolution” functions, like providing domestic violence screening, facilitating neutrality, addressing power imbalances, financial projections, or generating parenting solutions specific to each family, the impact to the justice journey for all parties is quite profound.  Marrying the two together, AI-based administration with AI-assisted dispute resolution, facilitates even more profound results by generating efficient legal outcomes while highlighting, minimizing, or even resolving core aspects of the disputes (often even before they arise).

Again, these solutions are not just for the big firms.  Many sole practitioners and small firms have already embraced practical AI-assisted tools for marketing, onboarding and triage, as well as scheduling virtual and in-person meetings for which all parties are simply better prepared.

SLOW UPTAKE BY LAWYERS

Still, even though AI has been a fixture of social discourse for more than ten years and is prevalent in many industries, the legal industry has been comparatively slow to take advantage of the benefits offered by this new technology. Other industries (e.g. financial, health, insurance, retail goods, sports) have leveraged data analytics in order to improve client services, product quality, reduce expenses, and generally increase efficiencies, the legal sector is one of the last to leverage these same opportunities. Whether this can be explained by the law’s adherence to history or a number of other factors, the crux of the situation is that lawyers, and the legal industry in general, are missing significant opportunities to optimize the practice of law while putting the humanity back into the justice process.

The dystopian narrative may suggest that most lawyers relate to AI with dread, fear, and uncertainty, even though the statistics suggest those sentiments are misplaced. In general, a law firm’s use of AI varies greatly depending on firm size; with larger firms being more frequent users. In a 2019 ABA survey, only 35% of respondents from the smallest tier of firms indicated they were using AI tools in comparison to 75% from the largest firms. Perhaps this is a result of perception of resources.  That is, that sole practitioners and lawyers from small firms assume they do not have the resources to facilitate the use of tools.

It is also possible that lawyers mistakenly believe that AI tools are geared solely towards large firms. This view neglects the fact that an increasing amount of AI tools have been developed specifically to assist small firms and sole practitioners in working more efficiently and to reduce unnecessary expenses. In providing these lawyers with additional resources, lawyers in sole or small firms may have the most to gain by utilizing AI technology from a competitive standpoint.

Another notable reason for adoption reluctance is the expectation that the AI-powered technology will be perfect from the very beginning. When the tools fail to work exactly as expected or are deficient in any way, some lawyers see that as validation for why AI should not be incorporated on a widespread scale.

What these lawyers fail to recognize is that technology development is iterative; it simply becomes better the more times it undertakes the task. In essence, it “learns.”  For the legal industry, AI works exactly the same way.  The more the industry adopts, and processes more data, the better and more useful it will become.

THE IRONY OF ADOPTION

Today, we are seeing the increasing growth in AI research in development around augmenting and enhancing the human element, rather than replacing it.  And herein lies the real irony.  Research shows that, particularly in the legal industry, technology failures are often the result of human hesitation, misaligned expectations or in the very manual process that the technology was designed to improve in the first place.  Translation:  It seems we’re just as reluctant to address the fact that there may be fundamental problems in our human-led systems as we are in adopting technology-based systems.

And that’s the true irony of adoption:  Research shows that AI utilized in conjunction with human expertise is actually the most powerful model of AI usage.

The baseline against which we should measure AI should not be 100% machine-led perfection. Rather, it should be measured against a baseline set by a technologically unassisted lawyer.  That is, when an AI-solution is gaining accuracy, bench-marking the technologically assisted lawyer against the same unassisted lawyer is the true measurement.  And that measurement should include more than just time and cost savings, but client satisfaction as well.

ACCESS TO DATA IS KEY

A notable challenge for true, widespread adoption of AI in the legal industry that provides obvious and unprecedented positive impact across the board is access to data.  AI is not only dependent on but thrives on access to data.  This means the industry will need to embrace open and labelled datasets within and even across jurisdictions.  Just a like a good lawyer, AI requires access to a large pool of ever-growing data upon which to draw from, analyze, and train.

Courts hold relatively small datasets, with limited protocols to facilitate analysis. With many civil law cases being settled in confidential mediations and litigated negotiations, the availability of data becomes even sparser. AI is only as good as the data it can access. In order to truly unlock its potential, deep learning or algorithmic solutions, an emphasis on gathering protected, anonymized and reliable data will need to be a core priority for various constituents and stakeholders within the legal system.

SUMMARY

AI partnerships are the new norm.  When we shop online, AI is in the background guiding us to what we need.  When we drive somewhere new, GPS systems guide us to where we want to go.  When we install new thermostats, AI helps us stay comfortable, while conserving energy.  And today’s clients, all which embrace AI in their daily lives, will not only assume that their lawyers are using technology, but will expect they will use that technology to better understand their changing needs, objectives, emotional states and necessities.   This will become truer for tomorrow’s clients—the “digital natives” who grew up with, and rely on, technology.

The legal industry’s resistance to change and hesitation to adopt technology is in and of itself a hindrance to access to justice.  It is inevitable that the legal system will integrate more AI tools, whether driven by the latest generation of lawyers and/or as a reaction to backlogs caused by inefficiencies or the need for remote access. As a result, lawyers’ skills will need change in order for them to succeed.  They will need to be more tech literate and data inclined.

And succeed, they will.  Research indicates that data-driven organizations are 23 times more likely to acquire clients, 6 times as likely to retain them, and 19 times as likely to be profitable when compared to firms not leveraging data (The McKinsey Global Institute).  Early adopters in the legal industry are already gaining a significant competitive advantage over their competitors, increasing client service, driving client satisfaction and improving revenue opportunities.  And without a doubt, AI-infused technology is leveling the playing field for sole practitioners and small firms—proving that partnering with AI allows them to have the resources that until now, were only found at the large firms.  And all the while, ‘re-humanizing’ our existing processes.

[1] Executive Director, SIËSDE Dispute Resolution Technologies, http://welcome.siesde.com/

[2] Innovation Lawyer, SIËSDE Dispute Resolution Technologies, http://welcome.siesde.com/