Technology and the Delivery of Family Law

Family law: distinct but similar 

The delivery of family law has a number of particular characteristics. it is a major area of court activity and legal practice in almost all jurisdictions – reflecting the social prevalence of family problems. In 2020, there were just over 100,000 divorces granted in England and Wales. Throw in partners, children and others involved and divorce alone will, thus, have involved around 250,000 potential clients – many with issues of considerable factual and legal complexity. Some of these cases have been fought by people of considerable means – with the media particularly alive to London becoming the jurisdiction of choice for divorcing Russian oligarchs. The current record award appears to be that of around £500m to Tatiana Akhmedova in 2021.

But, it is, of course, not just the rich who incur the cost and the emotion In England and Wales, we owe the legal aid scheme as it was developed just after the Second World War to the Law Society’s determination to open up family law to private practitioners after wartime provision by a small group of salaried lawyers. Fifty years of increasingly sophisticated assistance to those on low incomes came to a screeching halt with the “LASPO cuts’ introduced in 2012 legislation. The Ministry of Justice’s own analysis of their impact concluded that the savings had overshot their mark: ‘In 2017-18, the scope changes saw legal aid spending fall by approximately … £160m in family cases, compared to … £130m estimated in the impact assessments (IA) that accompanied the Act.’ Perhaps predictably, the Ministry of Justice held out the hope that the internet might come to the rescue: ‘We will explore how web based products, better signposting and join up of support services can provide routes for those seeking help and guidance to resolve their problems.’

Thus, family law has a number of characteristics – generally shared internationally but particularly accentuated by the history of this jurisdiction – which make it a fertile field for exploration of the Ministry’s ‘web based products’ which might assist provision for those on low incomes who are unable to afford the legal resources available to such as Ms Akhmedova. Many legal practices are already involved in this area – in England and Wales, particularly because of the former provision of legal aid. Family law problems are experienced by rich and poor alike. So, there are opportunities for cross subsidy in terms of the capital cost of building web-based provision. There is a degree of repetition of basic advice. Just by way of illustrating the international relevance of this, a study of ‘direct to public digital tools in Canada’ by the University of Ottawa listed Family as by far the largest area for ‘tools that serve a particular area of law’.

Militating against automated provision in family cases, few participants in divorces and family breakdowns will be free from a degree of emotional engagement in the process – a fact which is likely to make automation difficult. To quote from the Amazon blurb of a £250 (no less) paperback (and this was published in 2001) on ‘The Art of Family Law; Skills for Successful Practice’: ‘The practice of family law now involves much more than a simple knowledge of the substantive law and court work. With increasing emphasis on negotiation and mediation, lawyers need to be equipped with a range of problem-solving and people skills together with strategies to enable them to practice effectively.’ So, the challenge for those seeking to use web-based products to produce low or no price services is to communicate the law and practice, to manage their clients’ needs and emotions; to safeguard the interests of non-parties – usually the children. 

Thus, family law has its distinctive characteristics. But, it is also an area of legal practice with common elements with others. 

Improvements in the ‘back office’

There are a host of ‘back office’ improvements that technology has made available for all types practice. They are important in bringing down the unit price of assistance. Implementation has been accelerated by Covid. Before the epidemic, the notion of ‘virtual practice’ was seen as cutting edge and rather exotic. The American Bar Association Legal Practice Division published the first edition of Stephanie Kimbro’s book on Virtual Law Practice in 2010. Its blurb for the second edition reads “The internet has made it easier for potential clients to find legal services. Virtual law firms have revolutionized the delivery of legal services, lowering costs as well as evening the playing field. Whether you are a large law firm or a solo practitioner, there are business models of delivering legal services online that can bring your law practice up to speed with the 21st century legal marketplace. What are you doing to stay competitive?’ But, it would now be hard to find a legal practice – whether private or not for profit – that was not able to operate virtually. Digital case management systems, electronic communication of various kinds – email, SMS, What’s App – are common place. Clients are communicating with their lawyers without physical presence in a variety of ways. It has become routine.

There are other digital developments which cross the border between specific use in family law and general application. An example is the pre-interview questionnaire developed by Family Law practitioner Alan Larkin. This was originally a simple product called Siaro which presented a set of digital questions that a potential client answers before initial interview. The Law Gazette reported  Alan Larkin’s explanation: ’When a potential client calls the firm, they are asked to fill in the questionnaire. The form has 1,000 questions but Larkin says a client will answer only about 100. For instance, several questions are eliminated if the client does not have children.’ The consequence is a reduction in cost: ‘Larkin said the first 180 client submissions had ‘stripped out’ £32,000 of ‘soft’ time.’ Siaro became Engage, explained in a 2020 video of a Resolution conference presentation. 

Improvements in presentation

There have been considerable improvements in recent years in the presentation of web-based information. The prime source of basic information on most family matters in England and Wales is probably the citizens advice website. This has been improved and incorporates many of the practices of good website design that have been developed over the last decade. And the information on ‘what to do if when you separate’ is reflective of CA’s whole site. The language is clear; the organisation is good; the layout is simple. You can see that it follows the same kind of approach of gov.uk, the government’s own highly praised website and with which it has shared a number of personnel. The whole field of ‘legal design’, very much associated with an American academic Margaret Hagan, has encouraged a greater focus on what users need and want. She has driven major improvement in how ‘human-centred design’ can help the presentation of information and assistance.

The CA website makes, however, little use of the dynamic possibilities of technology. It is very two dimensional. A more interactional approach is on view elsewhere. For example, Legal Aid BC has a website, MyLawBC,com, which presents information more actively. Ask for help on ‘separation and divorce’ and you are taken to three ‘guided pathways’ that offer active assistance to ‘make a separation plan (25 minutes)’, ‘get family orders (15 minutes)’ and a section on ‘I’ve been served with a court document (15 minutes). Technologically, this is all pretty simple. The site is still presenting a static script but the information has been more processed around the perceived needs of the user. You get taken through a series of Q and As, given some relevant information, asked how likely you are to be able to settle matters amicably between yourselves and left with a downloadable action plan covering what you have said and what you should do. The MyLaw site derives from the Dutch Rechtwijzer project considered later

The domestic site with some of the most detailed assistance on family law is that of AdviceNow run by the charity Law for Life. It produces a set of a dozen guides on aspects of family law beginning with ‘a survival guide to divorce or dissolution of a civil partnership’. These are readable online or downloadable at low price. These are thorough and very good but technologically they scream out for integrated reproduction online. The reason that they are not is presumably financial. As books, they represent a potential income stream for the charity. Put them online and the charity may lose much of the income that keeps it going. So, we can identify a commercial incentive towards preservation of print and aversion from the possibilities of improved delivery through technology.

As an indication of where a more interactive approach to family law advice can go, there is the  Families Change guide to separation for children developed by a small NGO, the Justice Education Society of British Columbia (JES). From 2013, JES developed a game for children, Families Change, to encourage them to deal with issues around the divorce of their parents. It was subsequently taken up by the Californian courts and other provinces in Canada. There is little evidence on quite how effective this is but it is imaginative. The player of the game, a child affected by break up, can, for example, proceed in the game down a street and meet parents in each house who deal badly in a different way with the breakup. This is, however, a very rare attempt to advance interactivity. It surely has enormous potential.

An obvious advance in interactivity comes in the form of chatbots of various kinds. These do allow for automation – and, indeed, AI. Few have been developed with any sophistication to cover family law. The most ambitious chatbot in the advice field has probably been Nadia – developed to give information about a new Australian disability insurance scheme. This was cutting edge; used professional New Zealand chatbot designers FaceMe commercial developers of ‘Digital humans are AI-powered customer experience ambassadors that recreate human interaction at infinite scale’; and used a digital representation of a human with Cate Blanchett’s voice to give information. This could have been the holy grail of delivering AI assisted information through a simulated human which could even have read the emotional response of users through the camera on their computers. It was, however, spiked in 2017 because the Australian government was spooked at the expense and the AI was not powerful enough to provide a sufficiently robust performance. Had it worked, this could have revolutionised delivery of family as every other area of law. Given the commercial investment into chatbots to replace call handling provision, progress could advance here. You could imagine a digitalised simulated human handling the information, for example, on the Citizens Advice website and making it more approachable. But we are demonstrably not there yet.

Improvements in packaging

Another example of general innovation – encouraged by, but not dependent on, technology – but with specific application to family law is the growth of the fixed price package associated with automated working practices. Co-operative Legal Services (CLS) launched in 2011 with a set of different fixed price divorce packages which ‘its then newly appointed director, Christina Blacklaws, announced: ‘we … want to push the boundaries in delivering advice in other ways for people who would rather access legal services in different ways.’  The price varied according to the amount of individualised assistance offered. The project faltered and the current iteration of Co-op Legal Services focuses much more on legal elements linked to the Co-op’s well established funeral business. Currently the company’s family offer is somewhat modified – and diminished: ‘Once we have provided a written quote for the agreed work, that price will not change.’ The failure of CLS, once so heralded as a potential disrupter of provision, had complex causes. 

There were issues relating to issues other than technology. CLS was fined in 2020 for irregularities in its recovery of personal injuries costs; it lost its high profile first head in 2014; CLS was undoubtedly affected at least reputationally by the disastrous near collapse of the Co-op Bank and surrounding scandals in 2013. None of these directly relates to its business model but the drawing back from its previous high profile in family work suggests that – at least for it – the mix of a highly visible web presence, a series of fixed price packages, unbundling and an associated automated approach did not work commercially. This impression is reinforced by the retrenchment of Quality Solicitors, a network of firms formed to mobile private practitioners against the potential success of CLS, with a national branding, set of standards and aspirations to common practice. This now promotes itself as a network of 100 firms which, though their areas of work include family, is more generally just a ‘a marketing consortium which receives payments from our network of solicitors for member benefits and marketing which generates enquiries and referrals to the network of solicitors firms.’

Improvements in Identification, referral and opportunities for AI

Technology could have a role in the identification and the appropriate referral of cases. And AI has been held out as having the potential to assist in this allocation process – both on initial contact by user and the referral of a problem. This has been a general development rather than one specific to family law.

In January 2019, the US Pew Charitable Trusts produced a specific factsheet specifically on ‘how artificial intelligence could improve access to justice’. This followed an interest in natural language processing – with teams at Suffolk and Stanford Universities particularly working on this issues. Pew reported that the universities ‘have collected thousands of online questions about possible legal issues to start developing a data set that can serve to train a natural language processor (NLP)—a subset of AI focused on understanding context in speech. An NLP could recognize that people who seek information online about getting “kicked out” of their rental property, without using the legal term “eviction,” need insight into eviction law.’  It could also help to micro-identify areas of family law.

Spot is a computerized issue spotter – developed by Suffolk University – that can be added to the NLP. Give Spot a non-lawyer’s description of a situation, and it returns a list of likely issues from a National Subject Matter Index [NSMI], version 2′. This ‘provides a centralized, comprehensive taxonomy of topics for the legal aid community by which documents and data can be indexed.’ In other words, you might begin by telling the system that you are being kicked out of your flat and end up allocated to the precise section of the index covering this issue and which can then lead on to the automatic provision of the most precisely relevant information.’ Interestingly, Justice Connect, a far-seeing Australian project, has tried to replicate this approach but has only got 90 per cent accuracy. 

Testing these approaches in the field is difficult. And, as yet, you probably have to say that the benefits are unproven. There is little evidence that users of, say, the Citizens Advice website, have difficulty in correctly identifying the particular aspect of any family law problem that they have. AI may have a clearer role is in matching the particular characteristics of cases with the detailed requirements of providers. It should, in theory, be possible to input the details of a case (say about maintenance payments for dependent children); the availability of a user (say Chinese speaking available only in the evenings) and available advice provision. A number of projects around the world claim to use AI to do this eg Illinois Legal Aid Online’s online triage and intake system OTIS. This is its developers’ account of recent revision: ‘We created a smart Online Triage and Intake System (OTIS) for ILAO, available under ‘Get Legal Help’ on IllinoisLegalAid.org, designed to: Get users the best available help for their situation, that means directing users to a legal aid organization/legal information/forms; Help our legal aid organization partners accept cases in which they are likely to assist. Ideally, partners would focus on extended representation cases rather than advice-only cases to achieve maximum efficiency and effectiveness; Divert users to self-help action or commercial lawyers when a legal aid lawyer is not an option.’ JusticeConnect has produced an Australian variant: ‘Our online referral tool aims to eliminate uncertainty, providing a quick tool for sector colleagues to use to check whether a person they are assisting is likely to be eligible for a Justice Connect service, and then use the tool to make a warm referral of that person to Justice Connect for assistance.’

The sophistication of the AI actually applied in these identification and referral systems might be in some doubt. But, there is clearly potential for the matching of data through natural language processing and machine learning.

Technology and the process of family separation – the Rechtwijzer

One of technology’s great attributes is the potential of interactivity and the consequent possibility of taking a user through a process rather than just giving ‘static’ advice. This seems to be the most interesting frontier in the use of web-based family law tools. Here, the giant casting a shadow over subsequent developments is the Rechtwijzer, a project developed by the Dutch Legal Aid Board, a US developer and an academic institute – the Hague Institute for Innovation of Law or HIiL. This was launched in 2007; comprehensively reworked in 2012; subsequently internationally promoted; abolished in 2017; relaunched later as a Dutch site only without HiiL or the US developer. 

This is a description of the Rechtwijzer by Professor Maurits Barendrecht, one of its originators which it is worth quoting at length: 

The mission of Rechtwijzer Uit Elkaar was to reduce this burden through innovating the legal process of divorce itself; reducing the adversarial nature of the process; and making it easy to follow. The design was focused on letting people agree on all the things they need to restructure their lives after a divorce. It did not support mediation or adjudication as they are generally known but it offered redesigned mediation and adjudication services so that the parties can make fair, sustainable agreements. 

The platform had a diagnosis phase; an intake phase for the initiating party; and then invited the other to join and undertake the same intake process. Once intake was completed, the parties could start working on agreements on the topics that occur in every separation – such as future communication channels, children matters, housing, property issues (money and debts) and maintenance. The dispute resolution model was that of integrative (principled) negotiation. So the process was based on interests rather than rights, but the parties were told of rules such as those for dividing property, child support and standard arrangements for visiting rights so that they could agree on the basis of informed consent. Agreed agreements were reviewed by a neutral lawyer.

The platform was built on the Modria online dispute resolution platform. This was designed for consumer disputes (e-commerce) that are to be resolved quickly, supported by algorithms. It had to be made suitable for separation, where people have to work on their individual solutions and apply them for many years. So HiiL operated a front-end with the online dispute resolution support. The platform was offered to users by the Dutch legal aid board through its website. Modria and HiiL charged a set-up fee and a fee per user to the legal aid board. The platform charged users a fixed fee for mediation, review and adjudication. The legal aid board subsidised fees for those entitled to legal aid.

The platform met critical acclaim by the media, international experts and in various reports on court reform. We counted over 60 media mentions in 12 countries, including the Economist and major newspapers. We gave dozens of presentations at conferences, parliaments and ministries. We received visits from civil servants at ministries and leading judges. The only real criticism came from the Dutch Bar that wanted more safeguards for security and informed consent, and also lobbied for having lawyers do the intake instead of doing this online.

The project employed a multi-expert team; it was supported by a national network of offices that gave limited personal assistance to users who wanted it; it was well designed; and was squarely aimed at getting the parties to agreement. It would, for example, seek to get each party to identify what they wanted; inform them of what they were likely to get and lead them into a constructive process of negotiation. The end result was, if successful, an agreement which would be signed off by a (joint) lawyer and put before a judge. So, this was a site which did not use AI or anything particularly technologically sophisticated but it did lead the parties through a difficult process in a unique way. It was, all in all, a stunning use of technology.

Family law accounted for some 15 per cent of the expenditure of the Dutch Legal Aid Board and there were hopes that this could be used to fund the new system in preference to traditional ways of handling divorce. The lawyers, predictably, never liked it. Ultimately, the Rechtwijzer was given financial targets to meet its costs from users who would pay for them rather than lawyers over a very short period of time. Personnel changes meant that the Rechtwijzer lost its backing within the Dutch Ministry of Justice. But, none of these objections are necessarily fatal to its replication. What is, however, probably irreplaceable is the presence of a major funder with an interest in family law provision over a jurisdiction and a capacity to implement a national new approach. England and Wales might have been a contender but since the 2012 cuts, family law has been removed from legal aid expenditure and any similar system would require new funding.

Technology and hybrid legal services in family law

The packaging model of CLS with its different fixed price of web-based services have been given a modern makeover in the US. Hello Divorce is a trailblazing online family law service. it is the brainchild of family law practitioner Erin Levine. Originally based in California, it has extended to other states. Ms Levine has been showered with awards recognising her contribution from bodies including the American Bar Association and case management firm Clio. Hello Divorce has a number of distinguishing features which make it a leader its class.

The site is extremely well designed. There is nice integration of visuals and videos – including a two minute long you tube explanation. There is a nice yellow and blue combination. The opening page presents a very clear three step approach to how it works: Step 1: create a free account (nice one to suck you in), Step 2 a free 15 minute strategy call (pulling you in further). Step 3 choice of your package (you are hooked by now).

The design is just not in the fonts, colour and visuals. The process of getting the right package is transformed into a quiz. The offer is tempting: ‘Take our quiz to find out what we think will work best for you and get all the divorce info you need. No more Googling about the process or how to protect your rights. We’ve done the work for you and give our members FREE access to all the essential resources and worksheets you need. Get organized and have your questions answered.’

Ms Levine is not corporate Coop Legal Services. She uses the site to push her personal brand. Hard. This is Erin Levine’s Hello Divorce site. She pops up in chat-boxes on the site to ask if you have any questions. She pops all the time if you listen to US podcasts and media coverage of technology. She follows the Co-op packages model but but with more pizzazz. There are a range of packages which nudge the potential user towards a subscription model with various bolt ons. They range from the initial basic free entry through the basic DIY divorce package for $20 a month for six months, the racily suggestive ‘divorce with benefits’ at $700 a month or the all in $4,500 co-operative divorce offering which includes a bargain unlimited mediation hours service. You can get extra additional lawyer time in three packages of 30 minutes, 1 hour and 5. Or you can pay for extra help with specific parts of the process eg advice on a post-up agreement for $1500. These are very nice presented with visuals, colour and few words.

We are in the unbundled world but it is integrated into a conventional law firm and its working practices. The Levine Family Law Group has six lawyers. That has clearly set the context for the online process and the documentation assembly is linked to a case management system, Divorce Navigator, so that the user can be guided through the process over time. This walks you through the various forms you need to fill on a secure service through a Documate powered Q and A which then populates the form. You then get the choice of filing yourself or leaving it to the lawyers which can pick up the forms from the server.

A similar sort of service mix – but involving different organisations and different ways of working is the FLOWS (Finding Legal Options for Women Survivors) project in this jurisdiction. It is a partnership between the Family Team at RCJ Advice, the CourtNav project and lawyers who are member of Rights of Women. This is a description of its services: ‘You can … use this link if you want help with completing a non-molestation order or occupation order. You will be set up with an online account. You can complete some easy to understand questions, ask our solicitors if you have any questions and then an accredited Domestic Abuse solicitor will check your form. If you are entitled to legal aid we will link you to a local legal advice firm and their staff will check your form and offer you further legal assistance.’

Lessons: a suggested top ten

So, how might we summarise what we have learnt so far about the use of technology to deliver assistance in family law? Reviewing developments does bring out how recent they all are. The first version of the Rechtwijzer was produced only in 2007. This was the date of the release of the first iPhone. Technology has really only bitten into the delivery of legal services for a maximum of 15 years with the first real movement coming in family law probably in 2012 with the launch of Co-op Legal Services and the second iteration of the Rechtwijzer. We are at the beginning of a process but my suggestion of the top ten lessons so far would be:

  1. To date, the major impact of technology on legal services has been in practice management – given a heavy boost by the need to operate remotely during Covid, a general impact on all legal practices. 
  2. The use to which technology is put is heavily dependent on the background economics of the body implementing it. There has to be a sufficient economic case for the investment.
  3. Enormous strides have been made in the presentation of information on the net to make it more ‘human-centred’ and approachable.
  4. Technology has facilitated pre-existing trends like ‘unbundling’ and the packaging of fixed price services and these can be offered with increasing sophistication to become. 
  5. The impact of Artificial Intelligence has, to date, been minimal, suggesting perhaps that we should focus on the use to which technology is put more than the particular means by which it is deployed.
  6. A major developing frontier in the use of technology has been in the helping of users through legal processes like divorce, using the interactive potential of the web. The extension of case management support services for users may be a fertile field for development.
  7. Technology allows services to be put together in different combinations – from different providers or in different forms from the same provider, say moving from video to face to face services.
  8. Structural reform of services in the way that the Dutch Rechtwijzer project promised may need leadership from the courts or national legal aid bodies. 
  9. Advances may be more through ‘the accretion of marginal gains’ – practical advances within existing overall practices – rather than in some new disruptive provision.
  10. Finally, nothing exempts the advance of technology in family law from the digital divide limitations that will hold back its wholesale introduction overall. Without going into the detail of the argument, a quarter of those who are poor enough to have been formally eligible for legal aid will probably be unable or unwilling to use technology. And that is limitation which must be accepted by enthusiasts. This is a big issue which merits overall consideration in the context both of advice and the delivery of government services.

 

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