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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:
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