The (very near) future of family law: tech innovation meets collaborative values

We just won the ALPMA/LexisNexis Thought Leadership Award for 2018. Such an audacious project from an unknown early-stage startup was always going to raise a few eyebrows, so I wanted to unpack exactly what we’re doing, why we’re doing it and what it might mean for you as a family lawyer. 

Let’s start with why

Adieu is a response to a deep and chronic unmet need amongst family lawyers for an accessible collaborative approach that can be the rule for their clients rather than the exception. There is a growing population of lawyers who are becoming increasingly disillusioned with ‘business as usual’ as agents of an adversarial legal system that is riddled with waste, fear and heartache. Family law is a tough area to work in and it’s not getting any easier. Collaborative practice brings a great deal of promise and has been welcomed with enthusiasm by many, and rightly so. And yet - despite its ideals and potential - most family lawyers can probably count the number of collaborative matters they’ve done on one hand. That's if they’ve ever actually done a collaborative matter at all. 

I don’t believe that the status quo is due to a lack of desire amongst lawyers for change. Instead, I see a critical mass of forward-thinking, passionate lawyers who want to push things forward. But it isn't happening.   

Adieu is equally a response to an unmet need amongst divorcing and separating couples for affordable, timely resolution and self-determination. As family law firms, we should be appalled that the average time for a post-divorce financial settlement in Australia is 1-3 years. We should feel nauseous that 71% of Australians do post-divorce financial settlements with no access to legal advice - and we should lie awake at night worrying about the fact that that number is trending up, not down. 

We interviewed 50 separating couples to understand this better, and it wasn’t pretty. Australia is quickly developing an avoid-lawyers-at-all-costs divorce culture. The first thing that many couples do on separation is make a mutual commitment to each other that they won’t involve lawyers. They then live in a self-imposed state of limbo for years. With no way forward. With no access to legal advice. From here, one of two things happens. They may ‘resolve' things themselves, usually keeping whatever is in their own names and splitting anything in joint names (and I don’t need to explain to family lawyers why that might represent a seriously bad outcome, especially if one party has majority care of the children). Otherwise they go on in limbo until eventually one of them ‘betrays’ the other and sees a lawyer, ‘forcing’ the other to get their own lawyer and escalating the conflict. 

And these problems aren’t unique to Australia. Family law systems around the world are creaking under the strain. As our own Law Reform Commission grapples with the latest family law system review, Rechtwijzer, the Dutch poster child for online legal advice and dispute resolution, has failed. The divorce rate in China increased by 10% over the last few years, to the point that many Chinese people greet each other with the joke “have you divorced today?”. What we have here is a mounting global access-to-justice train smash.  

This is a cocktail of social, cultural and informational problems that - I’m sorry to say - can't be solved by technology. It is a textbook example of what designers refer to as a ‘wicked problem’ - a social or cultural problem that is difficult or impossible to solve due to its complex interdependencies and our lack of ability to define it. Having said that, I think technology has a huge enabling part to play, and - combined with creativity, sensitivity, forward-thinking policy and some good like-minded lawyers - I think we in Australia can achieve something that provides the template for others around the world to follow.

This is why Adieu exists.  

What we’re doing

We’ve developed a new technology that we’ve called a consensus accelerator. This helps people to come to agreements in areas that have legal and financial complexity, in timeframes that have never been possible before. It works using input from human lawyers, artificial intelligence and clever mathematics, to help people visually explore a number of options and rapidly iterate to a solution that they can both live with. If they stray outside of the legal advice, the consensus accelerator guides them back. If they propose an option that may not be financially feasible, the consensus accelerator lets them know. 

On top of the consensus accelerator, we’ve built a collaborative divorce platform, which enables bringing mediators, accountants and financial planners into the conversation. Everything works remotely over video, with other professionals joining as they are required and dropping off when they aren't. We’ve refined the system across trials with 14 real divorcing couples and our average time to resolution in our most recent trial cohort is 19 minutes. The total time from first client contact to a signed application for consent orders is 4-6 weeks.

To be honest, this has worked better than we expected. We set ourselves an aggressive goal at the outset to be able to come to legally sound, financially feasible resolutions in an hour, not knowing whether that was achievable at all, let alone via a remote technology. In hindsight we weren’t ambitious enough. But it’s easy to get distracted by time metrics and forget that what’s most important here is quality. And what is most exciting in all this isn’t the fact that we’re getting agreements within 20 mins; it’s that all the agreements have been within the legal advice, financially feasible, and done collaboratively by couples who are in a better place emotionally for having done the process, and are moving forward with a working relationship intact.  

Our next challenge is to integrate this technology into everyday legal practice. We see it taking the place of traditional room-and-whiteboard mediation by providing a lightweight collaborative framework within which like-minded lawyers can:

• Set needs and goals
• Quickly establish the property pool
• Agree a common set of facts
• Provide advice
• Help their clients explore options
• Mediate to resolution

The collaborative framework and tools shift the emphasis off the machinations of the adversarial legal system and place the focus squarely on good legal advice and the collaborative exploration of options. 

Unlike much other current tech innovation, this isn’t about replacing lawyers. It’s about establishing a new normal in which people get access to good legal advice, in a collaborative environment that empowers them to enjoy self-determination, while still making good choices. It’s about putting many of the benefits of collaborative practice within reach of the lawyers and divorcing couples who share collaborative values but currently find themselves locked into an adversarial process by default rather than by conscious choice. 

Note that I use the term ‘lightweight collaborative framework’ deliberately. The model we're developing is focused on bringing the benefits of collaborative practice to Family Dispute Resolution, rather than being a form of formal collaborative practice itself. This includes a mutual commitment to the values of the process, open disclosure and neutral appraisals, the inclusion of neutral external experts, and of course the ongoing support of independent legal counsel. Each of these benefits is baked into the process through the technology, so instead of one-off mediation sessions, lawyers and their clients participate in a series of structured video-based conferences, progressing towards resolution. Lawyers provide their advice to the consensus accelerator confidentially. Parties then create options visually and receive realtime feedback from the consensus accelerator that reveals ways forward whilst preserving client privilege. Accountants and financial advisers are beamed in as needed. All sessions operate under the provisions for Family Dispute Resolution and enjoy without prejudice privilege.

The only requirement is two like-minded lawyers who have agreed to work together in this process, and two clients who would like to resolve their matter in a non-adversarial way.

This turns the current reality on its head, creating an environment in which every client can participate in a collaborative process, unless they consciously choose not to. 

What does this mean for you as a lawyer?

I challenge you - as a family lawyer, would you actually want the world to be this way? What would it mean for you? Your clients? Your practice? Your fees?

As our trials have shown, removing much of the back-and-forth can make things happen significantly faster. But in a professional services business, less work means less fees. That’s good and well for an individual client, but what could it do to the financial health of your firm? Running a law firm isn’t cheap. In fact, it can cost a princely sum just to keep the lights on. I see two factors that can ensure that family law stays viable as technology changes the landscape. Firstly, technology may reduce fees from a total hours perspective, but it equally reduces the overheads. Secondly - and perhaps more importantly - the vast majority of the divorcing Australian population don’t currently get legal advice at all. Providing a more palatable option for engaging lawyers unlocks a huge opportunity for those who can embrace it; for those who can access the 71% of people who don’t currently engage lawyers rather than competing for the 29% who do. More clients, paying less fees and getting better outcomes. That’s a win for lawyers and a godsend for clients. 

Ultimately, I think law firms need to explore alternative business models - but that’s another topic for another time.     

Like many areas that are being disrupted by technology, I expect that family law will become increasingly polarised. Today we see a bell curve: a relatively small number of couples participating in collaborative practice at one end, a relatively small number of couples fighting bitterly in the courts at the other, and then a bulge in the middle of couples who are trudging through the machinations of an adversarial system by default, having not explicitly chosen one of the other alternatives. I anticipate that accessible, tech-enabled collaborative options will squeeze this bulge, thinning out the number of those in the ‘middle of the road’. People will become more conscious about how they choose to move forward, and that could really change the landscape. 

We may also see this polarisation happening with lawyers. Instead of just taking on whoever happens to walk in the door, lawyers may increasingly choose to work with specific types of clients. We might see more lawyers who make a conscious choice to only work with amicable (or at least non-adversarial) couples. These lawyers might work entirely within tech-enabled processes, never going to court, or even needing to send a letter to the other side. Because what we are doing is entirely remote, these lawyers might even choose to work from home or out of startup hubs or co-working spaces. These lawyers will be defined by the very things that make great family lawyers today: empathy, creativity, a holistic focus and great professional judgement. They’ll just spend more of their time in this mode. I won’t get too far ahead of myself, but be clear that this isn’t fantasy - we’ve already built the core of this technology. It exists today. 

What now?

We're looking for collaboratively-minded family lawyers to participate in trials. We plan to make the consensus accelerator available for use by Australian family lawyers in early 2019 - but given the interest we’ve had so far, we’re considering moving that forward to this side of Christmas. If you have a genuine desire to progress the field forward and start moving your clients toward the collaborative end of the spectrum, we’d love to chat about running trials with you. You can be anywhere in the country, but you'll also need to have like-minded lawyers to work with and clients who are willing to participate. 

As well as winning the ALPMA/LexisNexis Thought Leadership Award for 2018, this concept has got some of Australia’s leading legal academics excited. We run a lean-startup model of innovation, so we see everything as a hypothesis to be tested. We don’t mind being wrong, as long as we can iterate rapidly in the right direction. If you agree on the destination I’ve described, we’d love to have you on the journey. 

You can sign up for trials (or just find a time to chat with us more about what we’re doing) at www.adieu.ai. If you found this piece interesting, please share it with your networks. This debate needs to happen.