Written by - Miss. Sara Nehme
(Paralegal, Masters 2 Law Student)
ABSTRACT:
After the 2008 recession, law firm’s interest in legal technology significantly increased. It made both law firm and client’s lives easier by assisting law firms providing legal services in a far quicker and more cost efficient way than ever before. The addition of technology can make each maker more efficient and therefore more profitable many firms are now embracing technology for this reason, and the ones who left behind this evolution are considered outdated by legal market and clients. However, after covid-19 pandemic spread all over the globe, stopping everything in their tracks and changing our daily habits, work and lifestyle, it left major problems behind. As a result, all eyes were turned to legal tech like never before.
Now that the legal community has embraced technology so thoroughly, the key question is, how can legal technology assists parties in resolving their disputes?
Legal technology, also known as Legal Tech, refers to the use of technology and software to provide legal services and support the legal industry. Legal technology traditionally is referred to the application of technology and software to help individual lawyers, law firms, medium and large scale businesses with practice management, document storage, billing, accounting and electronic discovery.
Artificial intelligence and technology will help give more individuals access to justice, instead of waiting in line to watch a trial or follow up on a case by a click. Moreover such step will enhance accountability and transparency in any trial. Now that everything is online and might be recorded, a jury, judge, an advocate or attorney general will think twice before doing anything against the law.
There are unimaginable backlogs in court systems worldwide. For most of us, litigation takes too much time and money. We can use technology to help with issue and make a service rather than a place as we move legal resolution online.
As I agree with Richard Susskind, on the first generation transformation. Which is the idea that people who use the court system submit evidence to judge online or through some form of electronic communication. Essentially judgments move from the courtroom to online. In a digital society, we should certainly be able to institute extended courts where we go beyond decisions made by judges to some kind of diagnostic system to guide people regarding their legal options, how to assemble evidence, and provide alternative ways for dispute resolution.[1]
Technological components can also enable ‘virtual juries’ to decide cases by reviewing and voting on a case online. These ‘virtual juries’ are often composed of fellow users of a service, e.g. the Community Court of eBay India that consists out of 21 randomly picked volunteers, or the Jury of its Chinese competitor, the Taobao platform owned by Alibaba, which consists of 31 volunteers representing buyers and sellers.[2]
I disagree on the second generation transformation which is using technology to transform the legal system would be what Richard calls “outcome thinking” to use technology to help solve disputes without requiring lawyers or the traditional court system. It is entirely conceivable within a relatively small number of years that we will have systems that can predict the outcomes of court decisions based on past decisions by using predictive analytics.[3] I think it is an unjust way of solving disputes, since it neglect key factors. For instance, emotion, regrets, body language, and other things that a human mind might notice and take into consideration when they give their last judgment.
But as we can witness, first generation transformation is already here. Many countries have adapted their codes of civil procedure in order to allow for electronic exchange of documents, case files, and hearings. Since 2016, the EU Regulation on electronic identification, authentication and trust services (eIDAS) provides that qualified electronic signatures, seals, time stamps, and registered delivery services shall have the same legal effect than their offline ancestors, and shall be mutually recognized among the Member States.[4] And with pandemic spreading across the globe, several courts worldwide moved to online. Trails, proceedings, hearings and other legal procedures are conducted online via zoom Microsoft team or other apps.
Litigation in courts wasn’t the only mode of dispute resolution to step forward and embrace artificial intelligence. Alternative dispute resolutions took this step as well, in all of its aspects (mediation, conciliation, arbitration, and negotiation). Thus a new concept was born i.e ODR.
Online Dispute Resolution (‘ODR’) is a dispute resolution service provided on the internet. It combines different means of alternative dispute resolution (‘ADR’) with the use of information and communication technology (‘ICT’).
In another words, Online Dispute Resolution is a virtual process of alternative dispute resolution that is technology facilitated. Its function is to provide effective access to justice at reasonable cost, in particular for online disputes.
While some ODR procedures employ ICT such as email, chats or videoconferencing, others are integrated into an ODR platform that is essentially a software tool, accessible through a password-protected webpage or via a software application for mobile devices.[5]
There are many possible ways for ICT to enable the ODR process. While in some ODR procedures technology merely facilitates the communication process, in other instances (such as assisted or automated negotiations) technology is incorporated into the actual dispute resolution process. Hence, technology is said to participate as a ‘fourth party’ in the ODR procedure.[6]
In ‘assisted negotiations’ the ODR procedure entails a software-assisted negotiation stage that facilitates consensual solutions based on prior experience in the resolution of disputes or computerized expert systems. Via menu-driven input masks, the parties define the object of the dispute, determine their aims, deduce their willingness to compromise and reach voluntary settlement supported by standardized information about possible solutions. Only where necessary, a neutral third party is subsequently involved in order to mediate, or as a matter of escalation to adjudicate or even arbitrate.[7]
Regarding arbitration, Artificial Intelligence arbitrator was created but has never been assigned to real case yet. As I have mentioned before, I don’t agree with any virtual judge or arbitrator solving a dispute for it disregards key factor details.
On the other hand, I find a life-saving solution moving arbitration online. With pandemic hitting, Economy, Trade, and commercial activities were severely damaged, and as a result conflicts have arisen between parties. And with boarders and airports constantly closing and opening, parties can’t be certain if they can schedule a meeting - without being cancelled later- and resolve their conflict. And the more the delay, the higher the consequence. Since in Business Language “TIME IS MONEY“. As a key solution, some urgent disputes, whether it was e-commerce dispute or regular commerce dispute, or a dispute in ongoing arbitration, were moved to online arbitration.
From a positive prism,1. it will facilitate arbitration ( no traveling needed thus no clear –schedule for days needed only hours). 2. It will reduce costs ( no flight tickets and no booking in hotels). 3. Each party will remain in their place ( no place upper-hand to any party ). But there is no positive situation without some black spots. Some countries has weak infrastructure, thus a party might suffer with the internet connection. Moreover, body language is essential in arbitration and therefore an arbitrator might miss out on a lot of important details in this department.
One can conclude that legal world was already shifting slowly towards legal tech usage. The pandemic only facilitated the process and raise the cover on how important and essential of a positive change would legal tech enter to our lives. Most of the law firm, judges and arbitrators raise the voice to move forward with legal tech usage in solving disputes even after the pandemic is over. So where does this leave us? Marching towards a new world where legal tech is a base is any dispute resolution?
[1] https://www.forbes.com/sites/bernardmarr/2020/01/17/the-future-of-lawyers-legal-tech-ai-big-data-and-online-courts/?sh=510dfbcaf8c4 [2] automated technology and tools for online dispute resolution: Deepak Verma, Anshu Banwari and Neerja Pande, ‘Online Dispute Resolution’ (2018) at 142 et seq., available at: https://www.researchgate.net/publication/327787655_Online_Dispute_Resolution [3] https://www.forbes.com/sites/bernardmarr/2020/01/17/the-future-of-lawyers-legal-tech-ai-big-data-and-online-courts/?sh=510dfbcaf8c4 [4] Regulation (EU) No 910/2014 of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market, [2014] OJ L 257/73. [5] file:///C:/Users/ali/Downloads/SSRN-id3505635.pdf [6] Ethan Katsh and Janet Rifkin, Online Dispute Resolution: Resolving Conflicts in Cyberspace (Jossey-Bass 2001) 93 et seq.; Ethan Katsh and Colin Rule (n 19) 331. [7] http://www.mediate.com/Integrating/docs/lodder_thiessen.pdf