We will agree that the market for legal services is changing. It is no longer sufficient to give great legal advice. It becomes imperative to reimagine how we practise law or how we build our law businesses to meet the ever-evolving needs of client.
Design thinking for lawyers is how you intentionally craft your legal practice over time to deliver legal services simply, functionally, and beautifully. It is a system approach to innovation and problem-solving that is user-centered, experimental, responsive, intentional, and tolerant of failure. Creative problem-solving falls squarely in a lawyer’s wheelhouse and to successfully navigate current trends; legal professionals must better develop and exercise their creative problem-solving skills. Clients are looking for new ways to reduce their risk and legal spend. Design thinking will give you better results by combining the expertise of lawyers and designers by transferring patterns of thoughts and procedural models from designers to legal questions. With legal design methods, the question of how those involved in legal systems and providers of legal services should deal with digitization and how the legal industry must behave and develop in relation to the constantly changing expectations and behavior of legal consumers when using services is answered.
How do Lawyers “do” design thinking? The key to any innovation is to start small. In its unique focus, legal design has its own set of guiding principles and patterns. What makes for a good product? How do we communicate effectively? What kind of services will suit our user? The answers in the legal sector can be narrower than those in the general design processes.
The task of legal designers is to find a balance between the legally necessary and the creative freedom of legal contents and tasks.
Steps of legal design thinking process:
Discover, empathize, and understand the user’s situation, need and context through direct observation and research.
Synthesize and define a clear statement of the problems that users are faced with.
Brainstorm and ideate various unique solutions to identified problems and situations.
Prototype to test the viability/feasibility of the ideas developed.
Test your prototype solution with the needs of potential users and ask for feedback.
Implement and launch your solution to the system and get everyone onboard.
Legal design thinking focuses on how to re-design the delivery of legal services and improving the relationship between law firms and clients. It helps lawyers step back and envision their services delivery design using a client-centered process. That process starts with user data, creating or upgrading systems, tools, and processes that address real needs, and then providing a framework to test the prototypes and launch solutions with real users. Design thinking encourages innovation by systematically uncovering new ways to fix the same problem.
Legal design thinking can be applied to:
How a law firm can re-design internal processes to be more effective, such as attorney-onboarding, conflict-checking, or associate training.
How, together, a client and outside counsel can collaborate to find ways to manage a legal project using alternative service providers and new technology to reduce cost and improve turn-around time.
How a law firm can develop a new way to track matter costs and communicate spend-to-budget progress to a client.
AI and Machine Learning Solutions which can be used to predict the outcome of cases, find precedents, and automate workflow.
What are the objectives of Legal Design?
Helping the layperson understand the legal profession.
Help law firms understand the unique needs of their clients, and then design for their specific needs to create tailored legal solutions that actually work.
Help law firms achieve incremental short-term improvements and breakthrough long-term change.
Embracing design thinking requires a mindset shift for legal professionals. It necessitates redesigning processes and current practices to focus on the ‘users’ of legal services and the legal system as a whole. Importantly, legal design thinking cultivates a culture of innovation in the legal profession that not only benefits clients, but can also pave the way towards building a better legal system for all stakeholders in the ecosystem. It will also go a long way to make law firms more efficient in the delivery of their services while at the same time improving accessibility and the understanding of key legal concepts for businesses and individuals.
With the introduction of disruptive technologies, collaborative tools, and digital transformation, the business industry has become revolutionised. Contracts, however – which form the basis of business engagements/interactions have not kept up with the digital surge owing to: inscrutability, variations in contracts, and collaboration needed among multi-players to mention a few. Contracts signify agreements between parties with the objective of creating legal consequences. Traditional signing and other methods of conventional contracts may lead to delay, deal fatigue, and sometimes, missing out on a deal.
With time being of the essence, companies have continued to look for ways to facilitate contracting, and have started implementing digital solutions to facilitate contracting, from negotiation through execution. Given the advent of the pandemic and the migration of activities to cyber space, digital solutions that enable contracting and in turn business continuity have become a necessity. One of such digital solutions is Digital contracting.
Digital contracting is a process that turns the entire contracting lifestyle, not just signature, or storage, but every stage of the journey into a data-first, collaborative, browser-based workflow. This enables everyone in the business to work with contracts seamlessly – whatever their role. Digital contracting supports all types of contracts and facilitates all the process required for contracting. It enables smarter agreements to be executed faster. The overall status of contracts, as well as renewal dates will be widely known by members of the organisation, thereby providing unparalleled information about contracts within the organisation. More benefits of digital contracting can be found here.
Digital contracting offers a wide range of benefits; It provides templates designed for various contract types, ensuring a standardized format for even future contracts. It also plays a key role in the development of business operations, by improving the availability of contract information. The system ensures that all contracts can be conveniently found in the same place and available to authorized employees. Systems such as Excel and Word do not enable users to monitor the implementation of negotiations and contracts. They do not allow you to automate the management of contract monitoring, things like the fulfillment of contractual obligations, renewal of contracts, or the compliance of the contracting parties. These are however obtainable with digital contracting. Document management systems may be suited for some contract management tasks but this will require both product development and customization in order to function properly
As much as the benefits to digital contracting seems appealing, there are certain downsides as well. Due to limited storage and the difficulty of storing all documents on their servers, organizations depend on other sources and third parties to store documents. There is also the dependency on a proprietary signature for the execution of electronic signatures. When securing a contract management system, data security and privacy should form part of the overreaching factors taken into consideration. Digital contracts should be stored, retained, and archived using the same sort of privacy as conventional contracts to protect clients’ personally identifiable information. The unreliability of internet infrastructure could also pose a challenge to digital contracting.
Conclusively, it is safe to say that digital contracting would be the wave of the future. It is possible that there could be a synergy between traditional contracts and digital contracts for efficient and seamless contracting. This new mode of contracting can be used by all companies, irrespective of the size of data and the type of industry. It can also be used for all kinds of contracts. It is more agile, providing multiple advantages to organizations and businesses.
Online dispute resolution resolves disputes through ADR and other forms of dispute resolution, but principally applies technological solutions to the process. ODR was born from the synergy between ADR and ICT, as a method of resolving disputes that were arising online, and for which traditional means of dispute resolution were inefficient or unavailable. In addition to the two or more disputants and the third neutral party, technology serves as a fourth party and changes the traditional three side model. The fourth party embodies a range of capabilities in the same manner as the third party. While the fourth party may at times take the place of the third party, i.e. automated negotiation, it will frequently be used by the third party as a tool for assisting the process.
Types of online dispute resolution.
Online dispute resolution involves mediation, arbitration, and negotiation to enable the dispute resolution.
Mediation is a private process where the mediator, who is a facilitator, helps the disputants to discuss the issue and try to resolve the dispute. An online mediation is usually commenced when an email is sent to the parties informing them of the basic information of the online mediation. Virtual meetings are conducted in “chat rooms” where the mediator can communicate separately with each party or simultaneously with both parties. There is usually one chat room for joint sessions, one for caucuses or “breakout rooms”, and another for filing and storing documents, all conducted through emails. The most popular form of online mediation is asynchronous online mediation as it allows parties flexibility and faster resolution of the matter compared to offline mediation. However, the downside to online mediation is that it dilutes some of the key features of mediation, which is the human relational aspect of mediation. Online mediation may not effectively capture the various needs, interests, motivations, and emotions of the parties involved. The use of emails to convey messages instead of a traditional dialogue may also embolden parties to make inflammatory comments which may not occur if they were in the same room with a mediator, a phenomenon that one can easily observe from social media. The effectiveness of communication at the mediation is also highly dependent on the parties’ literary skills in expressing themselves over email.
Arbitration is a process where a third party makes a decision concerning the dispute after going through the issues, arguments, and evidence. Compared to traditional litigation, arbitration is less formal; less complicated, and can be completed in lesser time. Online arbitration can have hearings through the use of video conferencing, but mostly requires parties to upload their evidence (documents), respond to questions from the arbitrator and they will receive a decision from the arbitrator. Arbitration is either binding or nonbinding. Where parties have agreed towards a binding arbitration, the arbitrator’s decision can be enforced by the courts. There is a new form of online dispute resolution which is currently being developed: The Blockchain Arbitration.
The blockchain arbitration has been developed as the dispute resolution mechanism of choice for disputes arising from smart contracts. Smart contracts are written entirely in code, and they automatically execute or enforce obligations. Blockchain arbitration has been developed in order to service the dispute resolution needs that may ensue from smart contracts. There are currently several models of blockchain arbitration being developed, such as CodeLegit and Kleros. CodLegit has drafted a set of Blockchain Arbitration Rules and envisions an Appointing Authority which will appoint an arbitrator who may be a jurist or a blockchain technician. Communications would be done by email and there might even be an oral hearing over video conference should the arbitrator call for it. This is in essence quite similar to online arbitration. Kleros on the other hand represents a different system of blockchain arbitration, in which the developers appear to be creating an entire quasi-judicial system, with a general court, followed by two tiers of sub-court divisions, e.g transport division and then air transport division.
In negotiation, no impartial third party assists the parties in their negotiation, so the parties work together to come to a compromise. The parties may choose to be represented by their lawyers during negotiations. Through the use of email, video conferencing, text and instant messaging, negotiations could take place. It goes without saying that the negotiators must be tech savvy, and there could sometimes occur technical challenges and difficulties.
Automated technology/tools used for online dispute resolution
The following are the mostly used automated tools for online dispute resolution:
Blind bidding: These systems invite parties in dispute and ask them to submit their acceptable settlement offers with confidentiality and determine acceptable terms for both the parties. For example, Smartsettle.
2. Drafting collaboration: These are based on tools, which facilitate parties to review draft documents and forms to resolve a dispute amicably. For example, SettlementIQ, MicroPact.
3. Automated negotiation: These systems help in calculating all possible outcomes and also help the parties to arrive at a win-win situation as an outcome of the negotiation process. For example, Modria, Smartsettle.
4. Virtual mediation rooms: It facilitates mediation remotely in real time through videoconferencing. For example, ADR Group’s ADRg Express, Virtual Courthouse, Skype, and Zoom.
5. Arbitration systems: It facilitates arbitrators to conduct arbitration process online from different locations, through videoconferencing, and so on. For example, AAA /DecisionQuest’s CaseXplorer Arbitration eQuibbly, Traffic Penalty Tribunal.
6. Online court case initiation: Here, disputed parties or their legal representatives file claims and supporting documents through an online tool. For example, Rolls Building.
7. Online courts: Judges do the hearing and pass their judgments on cases by using an official online platform, without the need for face-to-face interaction with disputed parties. For example, eCourtroom.
8. Agreement monitoring: These are based on compliance and monitoring tools, which helps in reporting and analysis of agreements and identifying the breach of agreement. For example: Rechtwijzer, Our Family Wizard.
Technology is the future, and it is no longer news that most processes and traditional ways of doing things will become automated and assisted by information technology. Conclusively, it becomes imperative for lawyers, especially those interested in Alternative Dispute Resolutions to improve themselves and be more tech savvy in order to meet up with the technological disruptions that are rapidly occurring.
In response to the COVID-19 outbreak, many organisations asked their employees to work from home. One writer described the COVID-19 Pandemic as a “time machine to the future”. Over the past year, the pandemic has accelerated a technology-enabled trend to wit: the move to virtual remote work environments which has the potential to remain strong and become the ‘new normal’ even after the pandemic situation abates.
Remote working has accelerated the adoption of a variety of technology solutions, including collaboration and videoconferencing apps. It has eliminated the daily commutes of workers (resulting in saving on commute costs and other expenses), thereby allowing them to be more efficient and effective. It has enabled virtual collaboration with colleagues and promoted innovation, as well as increased workforce diversity of thought and talent. Flexibility and freedom are the most benefits of remote working. Remote working is incredible, but as with every other thing else, it’s not without its challenges and downsides.
With employees working remotely due to the pandemic, the challenges of data security and privacy have become more pronounced. As organisations transition their workforce, cybersecurity challenges have been created. Inexperienced remote workers often lack security awareness; they are unfamiliar with the best/standard practices concerning the physical safety of their devices, cyber threat detection, password usage, and data protection. Against this uncertain backdrop, organisations become more susceptible to cyber threats. According to a Deloitte research, the need to accommodate remote workers has increased the likelihood of a large-scale cyber-attack owing to unmonitored networks. A study cites that the three biggest struggles of remote work are insufficient collaboration and communication, loneliness, and the inability to fully unplug after work. With remote working, there is a chance of a lack of mentorship, reduced interpersonal networking opportunities, and a lack of camaraderie with colleagues.
There could also be work-home interference and distractions while working remotely which causes a break in concentration. There’s been a debate surrounding the productivity of remote workers. It’s been suggested that remote workers are often more productive than those who work in an office. Some persons are a natural, while others struggle with and have a hard time eliminating distractions and focusing on their work.
For remote working to thrive, reliable power supply, internet connection and infrastructure are needed. However, it is possible that once in a while, remote workers will encounter connectivity challenges and power outage. Collaboration delays could occur due to differences in time zones.
What are the solutions to these challenges?
Frank Weishaupt, CEO of Owl Labs believes that as an employer, it’s critical to maintain a community for all workers despite their physical location, and require manager training specific to remote workers as well as provide the latest technological advancements in digital collaboration tools across the organisation. Communication among team members is key to success and productivity. There must be clear-thought out communication channels and protocols to facilitate a smooth course and exchange amongst team members when working remotely. Guidelines should also be made available to aid inexperienced remote workers navigate through these tools and communication protocols.
As people turn to remote work, tools such as Pomodoro Technique and FocusMate to mention a few are being created that focuses on the remote specific productivity needs of remote workers. With these, remote workers are able to improve their productivity and track their work time.
Physical office environments typically have a sort of security in place to prevent security risks and cyber-attacks/threats. To mitigate against cyber threats and security risks, necessary cybersecurity protocols and procedures, as well as trainings and guidelines on how to implement them should be provided for remote workers.
To overcome connectivity challenges and power outage, organisations should invest in great and reliable service providers for remote team players. To bypass the obstacle of collaboration delays due to time zone differences, a kind of balance and an overlap between team members will have to be created if productivity is to be attained. Tools like Slack will help to achieve this. A culture of communication among team players will help to manage the situation effectively. Creating a calendar (using Google calendar, for instance) and ensuring that it stays up to update will ensure that targets are hit and deadlines met.
Conclusively, remote work is the future of work. With effective communication channels, security protocols, reliable internet service, project management and coordination platforms, organisations will get the best out of remote working.
Technology continues to challenge the way traditional services are delivered, including justice delivery. Technology has necessitated adjustments that are adaptive and innovative. The adoption of online dispute resolution mechanisms and digital justice would lighten the burden of our courts. Relying on video conferencing and technology to transmit information could reduce the expenses involved in resolving disputes. Using digital technologies, courts and attorneys can now access information remotely, including online legal documents, as well as communicate and collaborate in real-time. “As core public institutions, courts need to take a leading role in the responsible implementation of technology in the law and in legal practice, with specific emphasis on problem-solving and the facilitation of the just resolution of disputes in a quick and inexpensive manner, while still maintaining the fundamentally human character of the courts”.
Digital technology would redefine the future of the court systems in some of the following ways:
Remote working and real-time collaboration
Appropriate sentencing choices when sentencing defendants with similar profiles
Online dispute resolution
Automated archiving and retrieval
The rise of digital justice would help the courts to serve justice with greater speed, efficiency, and transparency at lower costs, and at the same time, making justice more accessible to all. As with all technological disruptions, there is a need to train all court staff to be able to meet up with the trends in digital justice. Lawyers as well have to be tech-savvy in order to keep pace with the rapidly changing demands of society.