Family law is specific to each jurisdiction but there are common elements. In most countries, divorce operates under the supervision of the courts and, thus, amounts to the largest single source of civil court claims after debt. Canada deals with around 70,000 divorces a year. England and Wales has over 106,000; Australia around 48,000 and the US around 880,000. The proportion of unrepresented litigants is high in all common law countries and has recently risen significantly in England and Wales because of cuts to legal aid. In private law family cases, the percentage of unrepresented litigants was down to 36. In Canada, there are reliable estimates that between 50 and 80 per cent of parties to divorce are unrepresented. As in England and Wales, the proportion has grown rapidly over the last twenty years and particularly the last five.
An unsurprising consequence of this is that there has been considerable interest around the world in the contribution that technology might make. A consequence of the transnational nature of technology has been that there has also been unprecedented cross-national collaboration. In the ODR field, the Dutch Rechtwijzer inspired considerable interest around world. Its use of guided pathways directly spawned MyLawBC.com and an, as yet unrealised, project in England and Wales by the NGO Resolution. In the field of legal education, BC’s Families Change programme has spread throughout Canada and to four US states – Vermont, Maine, California and Connecticut.
Divorce and other family-related litigation has unique features relating to the high number of cases, the emotional engagement of the parties, the role of the court in protecting non-parties such as children, the widespread nature of family breakup that involves families rich and poor alike. But, in many ways, these just represent extensions of the considerations involved in many legal matters. Thus, an overview of current developments needs to consider general innovation in the delivery of legal services need to be considered as well as those specifically relating to family cases. Family litigation also contains specialist areas of jurisdiction, such as that relating to domestic violence, which raise specific issues.
There are various ways of looking at different developments but the following might be helpful in opening up discussion:
- online information, advice and referral.
- interactive provision such as guided pathways, chatbots or artificial intelligence
- various forms of virtual legal practice.
- online communities.
- online dispute resolution (ODR).
- online education and training.
- innovative reporting mechanisms.
1. Online Information and Referral
The quality and presentation of information on the net has received significant attention and has improved. Ontario hosts the Steps for Justice project led by CLEO with cross-agency authoritative coverage of family law as elsewhere that opens with a few Q and As and then proceeds to clear statements of the law. The equivalent in England and Wales would be citizensadvice.org.uk which is a comprehensive jurisdiction-wide site backed by a national network of advice bureaux staffed by full timers and volunteers. Its information on family breakdown is very clearly set out.
2. Interactive provision
The internet has encouraged interactive provision. Guided pathways were one of the innovations behind the Rechtwijzer and can be seen in MyLawBC. They allow a much more personalised service by defining through a series of preliminary questions what the user actually wants to know. Chatbots take this one stage further by appearing to be a human in asking questions. And the addition of artificial intelligence must represent a further step. So, we have to reckon that Siri or Alexa will soon be able your divorce questions and make appropriate referrals – particularly if the system knows where you are. Less ambitiously, automated online document assembly along the lines, for example, of A2J author in the US holds the prospect of assistance for family litigants as for others. There must be opportunities to combine an interactive front end, possibly a chatbot, with a document assembly programme. That would allow a programme to populate court forms from conversational responses: it does not have to look like a form for users.
3. Virtual legal practice
There are almost limitless variants of virtual legal practice. In England and Wales, professional deregulation has encouraged law firms to establish a self-standing online presence with separate back office provision and offer largely online fixed price packaged products such as divorce. Interestingly, initial interest in this in England and Wales has rather dropped off and the once market leader, Co-operative Legal Services, has now largely refocused itself around probate. The emergence of Skype allows providers to offer video services to supplement or replace face to face meetings with clients.
4. Online communities
Online communities can provide support people going through family breakup. An example from the UK would be MumsNet – where discussion is not specific to family matters but can include it. A curious hybrid is also emerging – as in Wikivorce which is presented as ‘a well respected, award winning social enterprise’ – where online communities co-exist with links to a solicitors practices. The internet is not, of course, always neutral in its presentation of information. Online communities can be highly partisan, encouraging the notion, for example, that divorce judges favour women (or men) and encouraging conflict rather than setting out to resolve it.
5. Online Dispute Resolution (ODR)
ODR can impact on family cases in two ways. First, divorce can become, in whole or in part, an online process. There are considerable attractions to courts and Ministries from such a position since it holds out the hope of reducing cost. Divorce applications have recently gone online in the court modernisation programme in England and Wales. Second, processes ancillary to those of the court can be put online. This was the model of the Rechtwijzer where the result of guided pathway advice and then the offer of online mediation was an agreement which went to the court for final approval. It was hoped that this would be chosen by litigants in sufficient numbers and sufficient cost to make it self-financing. Unfortunately, it never met its target – which was around 10 per cent of all users. However, its successor, uitelkaar.nl, has less stringent targets and may survive.
6. Online legal education
The net has the capacity to conflate public legal education and information/advice. A number of jurisdictions, for example, have videos and information on self-representation which can be accessed by a user about to go into a court. The Families Change programme is a good example of online public legal education extending beyond the parties to the action to others, eg children.
7. Innovative reporting mechanisms
A number of jurisdictions have apps designed for those suffering domestic violence with particular features such as a capacity to log events and to exit at speed and without trace. These can give information; encourage reporting; add credibility to logged events; and help boost victim’s confidence.
Issues of course remain – among them that of digital exclusion. How do we integrate digital provision with existing methods of delivery that preserve access to those who cannot or will not use the internet. But, particularly if governments are to slash legal aid as they have in England and Wales, Ministries of Justice as well as providers have to give more attention to digital delivery.
This paper has been produced for a conference to be held at Ryerson University, Toronto on 4th June 2018 as part of its Global Family Justice Initiative.