TribunalsThe Digital Future of

COAT 2019

Professor TaniaSourdinNewcastle LawSchool

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Change

Mainly lower levels of change for the next 5-10 years

Three Levels of Change

Supportive Technology

Technology is assisting toinform, support and advisepeople involved in justiceactivities. Remoteconferences, vid hearings,apps, websites, info, e –forms, justice café.

Replacement Technology

Technology is replacingfunctions and activities thatwere previously carried outby humans. Casemanagement, letters, listing,sharing, TDRS, ODR, Modriaadd ons. See BC. Appsagain!

Disruptive Technology

Technology is changing the waythat determinative, advisory andfacilitative processes work andinforming system reformthrough the use of big data setsand more complex knowledgegeneration. AI and analytics.Apps again!

Need for ReformHow will tribunal processes change in the era oftechnological disruption?

ConnectivityMore connecteddevices than toilets

Significant obstacles in justicereform

What happens when judicialreform ‘clashes’ withdisruptive technology?

Large percentage of population areon line – all the time

Scope and potential for EDR and related ODR in modernonline environment

EDR and ODR are being used in a widerrange of disputes

What is Driving Change?The Digital AgeWe are more connected than ever before……

Rapid changes in servicedelivery (e.g. Uber) gives riseto unexpected results

UK reforms, BC reforms,Productivity Commission

Introduction

My firstcomputer

Osborne

Changes

iPhones –smart tech

NEXTDECADE?

WEARABLETECH

TextualAnalysis

Modem -https://www.youtube.com/watch?v=gsNaR6FRuO0

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SUPPORTIVE

SOPHISICATEDAI

AI USINGBRANCHINGTECH

Changes

Microsoft makes a $40 Billion offer to buy Yahooand Yahoo declines.

Realises their mistake and offers $3 Billion. Does notacquire for $5 Billion (Google now worth $200 Billion)

Chooses not to acquireGoogle for $1 million.

Yahoo accepts a $4.48 Billionpurchase from Verizon.

Not so goodTechnologyDecisions –Yahoo!

1998

2002

2008

2016

Providinginformation

Lodging andclaiming

Easy access

On line, changedcosting, 24/7 and

responsive

Changing Court andTribunal processes

Shift to managingdisputes online

Five years ago,entrepreneur CharleyMoore founded onlinelegal services providerRocket Lawyer.

It now boasts 30 millionusers. Subscribers pay amonthly fee for instantaccess to pre-prepareddocuments andtutorials, as well asonline legal advice fromexperts at participatingfirms

Canada – intake, diagnosis andsupport

“Justice delayed is justicedenied”

Supportive TechnologyLow level changes for the next 5-10 years

First Level of Change

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No needto travel

Large Scale ODR

Modria – More than abillion disputes (Tyler– Modria). Chatbotplus systems.Virtual assistant tobot.

E-Courts & E-ArbitrationUS, Canada and UK.Sometimes linkedwith the big providers.HMOC.E Discovery

Guided Resolution -Adieu (Queensland)Apps, apps and moreapps

Govt Initiatives

Eg, EU changes rolledout from thebeginning of 2016.

Replacement TechnologiesSignificant Growth

Second Level of Change

Boutique Providers

ReduceCosts and time

Geographic

Consumer

Support

Limited AI

Court processes

Casemanagement

To understandalternatives,define issues andassist with datamining

Well developedin the on lineconsumer area(Paypal,Squaretrade)

BATNA/WATNA

Capable ofbridging largedistances andpower/violenceissues

Some courtdevelopents supportreplacementTechnologies – ege-discovery

Why?

Second Level of Change

The Future of Dispute ResolutionSecond Level of Change

Zero touchclaims

I Case Study

13 MASSIVE X presentation to DesignTuts team

DisputeIf Microsoft is unable to resolve your issuethrough its customer support channels, as aEuropean Union consumer, you have theoption to submit a complaint through theODR portal.

Example: MicrosoftIf you reside in the European Union and have purchased orconsumed a product from Microsoft….

ODRComplaints may be made in any one of the 23official languages of the European Union. The ODRmay suggest alternative dispute resolution (“ADR”)entities competent to hear the claim and Microsofthas the option to try to resolve your complaintthrough the ADR entity.

Platforms and Systemic ChangesShift to large scale platforms in EDR and justice – Example - EUDirective – from 15 February 2016

Second Level of Change

Say hello toadieu

Others – e.g. Government Agencies

Courts and Tribunals accepting Technology

Use of Social Media• Facebook / Twitter / YouTube to

engage withclients/business/stakeholders

• Promotes Accountability (butalso poses challenges in contextof confidentiality) – Ranking andrating (Avvo?)

Courts and Tribunals• Administrative Appeals Tribunal/Federal Court

of Australia adopting e-court facilities andsupportive tech

• NSW Online Registry• Push internationally to move towards online

courts system and platforms• Northern Ireland Courts and Tribunal

Service offers online process for smallclaims

• Civil Processing Centre operatesaccording to time-based and other rulesGovernment Agencies

• Centrelink ‘robo-debt’ recoveryscheme

• International and domestic dataretention

Use of Social Media

Technology providesopportunities forcommunication – thismay not necessarilybe a good thing

Trends in TechnologyInfluencing processes

PossibleBenefitsTechnological change wasintended to provide manybenefits. More access,ease of management butstress, disconnectionissues and increasedhostility issues.

Job LossMany jobs will not exist in thesame way in 10 – 20 years.Although the jobs may existthey will be ‘altered.’ Significantsocial disruption and changesin courts and tribunals.

Threats to PrivacySignificant threats to privacy.Dispute Resolution systemshave not yet grappled with this(Impact on disputants eghealth data). Use of recordingsnow common in familydisputes.

Loss of SocialInteractionWhat do the new ways ofcommunication mean forsocial interaction? Whatdoes happen whenrapport is created?Apology by text? Alexaor Siri?

Disruptive TechnologyDisruptive Technologies can help, hinder and will change

Third Level of Change

What will a judge or an arbitrator look like in10, 20 or 30 years time?

• Role of AI in judging –to support, replace or disruptexisting judicial processes?

• What impact will AI have on adjudicative processes?

Evolution of AIArtificial Intelligence is anevolving concept –the creationof ‘intelligent machines’ willreplace many traditional humanlabour intensive jobs in thefuture

Recent developments indicate that there is a change in howlawyers, courts and others use technology, shifting to enhanceand make processes more time efficient or even to predict theoutcome of litigation.

Third Level of Change

InbuiltBias

– At theSimple Level

AI

AI Rapid Growth and Rapid Increase in Investment

Family Disputes?Use of AI in resolving challenging interpersonal

conflictThe development ofnegotiation support systemsfor facilitating the mediationprocess used for the resolutionof family disputesAI systems. E.g. Family Law ODRin South Australia

These negotiation systems modelled on early prototypes? Split-Up, FamilyWinner and AssetDivider.

Third Level of Change

Role of a Judge or TribunalmemberIt is not just ‘making a decision’

Judges and Tribunals members utilizeInduction and intuition, taking into account thesocial impact of decisions

There are importantadjudicatory functionsFor which AI may be both rigid andinflexible

Case management

ComplexInteractionswith people

Interactionwith otherarbitratorsand laypeople

The importance ofresponsiveness

Role of Judges in the Era of TechnologyThe increasing use and development of AI leads to the question: Will some judgesbe ’phased out’ by Judge AI?

Artificial Intelligence

Civic education

AI Tribunal members?Potential for AI to replace some decision makers.

Adjudication requires human intelligence, and AI can now replicate this.

Experiments in Europe haveshown that AI programmed

to analyse decisions can havean accuracy rate of 79% in

predicting outcomes

Current projects in Canada/Japandeveloping AI software that can weighcontradicting evidence, rules on cases,

and predict case outcomesHowever, AI may not be suited tomaking a prediction or outcomeif no precedent exists

An AI judge would have to applythe law to the facts and come upwith a decision.

Machine learning allows computer programsto learn through experience, rather thanthrough hand-crafted computer functions

Artificial Intelligence

As society moves intothe era of technology,how will the role andnature of the Judgeand Tribunal memberchange?

Role of a Judgein the era oftechnology

DisplacementTechnology will develop to apoint where AI will replacesome Tribunals in relation tosimple adjudicatory functions

ReviewWill review of AI decisions byhuman decision makers benecessary?

ControlThe impact of displacementwill vary. Judges and Tribunalmembers are likely to stay incontrol

• Legality of decisionsmade by ‘AI Judge”

• Translating law intocode

• Discretionaryjudgments

Issues Remain

Artificial Intelligence

Two key questions:1. Who is the decision maker?2. Who possesses the legal authority

to make such a decision?

In some aspects, the legislature can enact lawsto remove complexities and deem thedecision to be made with legal authority

• However, how it will stand up incourt is not yet clear.

The public and open nature of adjudication isa part of society and culture, which cannot beeasily abandoned. Who programs the AI?

Legal Authority

Can a computerprogram or automatedprocess possess legalauthority to makedecisions?

AI Issues (1)

AI Issues (2)

Law is complex, includes statutorypresumptions and discretion –coding theseintricacies may prove to be a challenge.

The ever changing nature of law as a resultof enactment, interpretation andamendments means constant updates.• Autonomous systems would need to

apply law from various points in time,and ensure that cases are dealt withstrict date parameters.

Lawyers and policymakers mustbe included in the design andimplementation process.

Translating Law into CodeComputer programmers andIT professionals lackknowledge of the law andlegal qualifications yet theyare tasked with translating lawinto code.

Discretionary decisions need to take intoconsideration:

• Community values• Subjective features of the parties• Other surrounding circumstances

Suggestions by Perry J to replacediscretionary principles in law with black-and-white provisions• Argues amendments would simplify law and

make it easier to synthesise with AI in thefuture

Discretion at the core of commonlaw judicial decision making -Issues surrounding bias in AI

Discretionary JudgmentLack of discretion may leadto unfair or arbitraryjudicial decisions with alack of individualism,consideration of thecircumstances or a lack ofunderstanding of nuancein law.

AI Issues (3)

Chief Justice John G. Roberts Jr,Supreme Court of the United States of AmericaApril 11, 2017, Rensselaer Polytechnic Institute

Can you foresee a day, when smart machines,driven by artificial intelligences, will assist incourtroom fact finding or, more controversiallyeven, judicial decision making?

That day is already here, and its putting a significantstrain on how the judiciary goes about doingthings.

SupportTechnological advancesmay be used to supporthuman judges, Tribunalmembers and registrarsin their judicial work

SupplementAI programs could be used tosupplement work by producing draftjudgments that can be amended andenhanced by humans.

Transhumanism?Improving the human bodythrough integrating technologyinto the body – posthumanism?

ReplaceApp and bot – virtual assistant tovirtual assistant.Complete independent production of‘reasons’

Augmented Judges or selectionJudicial officers could modify theirgenetic or physical makeup!

• Eliminate aging/increasememory/reduce fatigue

• Active ventromedial region

Technology SupportingJudges

The JoblessFuture

Whataboutlawyers?

Martin Ford – Riseof the Robots:Technology and the Threatof a Jobless Future

New TechnologiesSuch as driverless carsand 3-D printing willeventually replace manyworkers

Court andTribunalWhat jobs will bereplaced?

01

AutomatedResponsiveAutomated,responsive deviceswill replace somepeople

Big DataVisual recognition,diagnostic and bigdata devices willreplace many jobs.Thinkmanufacturing,farming,

Likely to Change Within Five Years

KnowledgeProcessesSome decisionmaking processeswill be replaced bysimple techsupportedknowledgeprocesses.

Select TaskAutomationMany jobs can bereplaced but manywill have parts oftheir workautomated

Least VulnerableJobs Social Skills

According to most research these skills are becoming more important. Computers are still poor assimulating social interaction. Affective technology is changing this. Jobs that involve creativity areless likely to be replaced (at least in the short term) – however tech can now paint, compose, writestories and anticipate responses.

What else?Changes specific to DRArea?

Knowledge based jobs are not safeDoctors, lawyers and judges face considerablechanges. It is more likely that the impact on tribunalmembers will be more extensive than on judges orjudges or lawyers (higher % risk).

Some jobs are alreadybeing replacedExpert radiologists are routinelyoutperformed by pattern-recognition software,diagnosticians by simplecomputer questionnaires.

Replacing people

In 2012, Silicon Valley investor VinodKhosla predicted that algorithms andmachines would replace 80% of doctorswithin a generation - IBM WatsonSupercomputer.

Some replacement tech will impact onthe work that you do - Ross Intelligence– on the cloud lawyer

TechnologicalDisruption

Initially, more likely tohave an impact onadvisory anddeterminative DRprocesses. In the longerterm, supportive,replacement anddisruptive technologieswill all have a broaderimpact on the justicesector.

Advanced Stat ToolsProjectWe currently have little ideaabout who uses courts andtribunals.in courts dealing withcomplexity and analytics. Whois more likely to progressthrough the system and how

New Technologies:Examples – social media and net trackinghas been used to:

• edict pregnancy and due dates• predict that you will move house• Google typing speed to decide

search results• Predictive policing – predicting

disease – predicting disputes?Most opportunity and most risk?

Big DataBig Data

Who uses your court or tribunal?How do they use it? How do theyfind out about it? How do theydevelop it? What do practitionersdo? How much does it cost(personal time and other)? What dothey need?

Significant changes across thejustice sector:

More accountability?

More risk (confidentiality)

Using technology as amedium to ‘support’or supplant’processes – e.g.Skype/videoconferencing toholograms

Use of ‘advisory’ AI toreshape newalternativeunderstandings andpotentially replacesome advisory anddeterminativepractitioners

ChangingProcesses

Collaborativetechniques andpredictivetechnology toprovide moresupport andreferral avenuesfor disputants

ChangingStyles ofinteraction

Use of disputant-focused inputsand trackingtechnologies –rise of tripadvisor styleinputs (mappedwith datapreferences)

Improving casemanagement,reporting anddata collection

Use of ‘big data’ tolink dispute criteriaand data fields or tomap and promotetransparency orcomparability

Using data indifferent ways(changing the natureof data retention andcollection)

Conclusion

Questions?

Thank you.For further information: