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| Brett Carlson |
Lack of transparency and privacy concerns
AI systems, especially those using neural networks or large language models, often operate opaquely, providing little insight into how recommendations or outcomes are generated. In a legal setting, this lack of transparency challenges fundamental principles like accountability, due process, and the right to understand one’s case. In family law ODR, participants might receive AI-generated suggestions on parenting or financial support without clear reasoning, undermining trust and making it difficult to challenge decisions.
This opacity contradicts one of AI’s touted benefits, accessibility, by discouraging participation when parties do not understand or trust the process. Furthermore, family law disputes involve sensitive data, including medical, financial, and personal information, often related to children or intimate partner violence (IPV). Using AI requires the collection and storage of such data, creating risks of breaches or misuse. Questions about data access, retention, and secondary uses (such as profiling or predictive analytics) remain unresolved.
Robust data governance, encryption, and transparency about how AI systems handle information are essential but not yet standardized. As such, there is an added onus on the neutral third party to ensure that if they utilize AI in their ODR process, they understand exactly what that AI is doing and how the data is accessed and stored. This should be done in order to provide sufficient information to the participants to enable them to provide informed consent.
Access and equity issues
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Bias in algorithms
Algorithmic bias is one of the most recognized risks of AI. Biases can arise from flawed training data, design assumptions, or historical inequalities embedded in prior decisions. In family law, such bias can have lasting effects on children and families. If AI tools are trained on historical cases reflecting gender, racial, or socioeconomic bias, they may reproduce these patterns under the guise of neutrality.
Over-reliance on technology
While AI can enhance consistency and efficiency, there is a real risk of over-reliance. Family law disputes are emotionally complex, requiring empathy, cultural awareness, and contextual understanding, qualities AI lacks, even with advances in affective computing. Delegating too much authority to machines risks dehumanizing a process that fundamentally depends on human experiences.
AI works best as a collaborator, not a decider. Human judgment and oversight remain essential. No current AI can replicate the empathy needed to assess issues such as IPV, trauma or coercive control, factors critical to fair and equitable outcomes. A purely algorithmic approach could miss these nuances, resulting in decisions that fail to account for the human realities behind the data.
Lack of regulation and oversight
AI use in family law ODR remains largely unregulated. Few jurisdictions have clear frameworks for ensuring fairness, accuracy, and ethical compliance in AI-driven legal tools. Most professional directives, such as those issued by Canadian law societies, address only the use of generative AI in legal documents.
This regulatory gap means AI tools may be deployed without sufficient testing or accountability. It also raises critical questions about liability when AI causes harm. Does the responsibility lay with developers, platform providers, legal professionals or the courts? As AI becomes more integrated into family law processes, the need for formal oversight, transparency standards and ethical governance is increasingly urgent.
Conclusion
The integration of AI into family law ODR offers exciting opportunities for innovation and efficiency, but it also demands caution, transparency and accountability. As technology increasingly influences how disputes are managed and resolved, it is essential to preserve the human elements: empathy, fairness, and discretion, that define justice in family matters.
Policymakers, mediators and developers must work collaboratively to create clear regulatory frameworks, promote inclusive design and ensure ongoing human oversight. Only by approaching AI as a collaborative tool rather than a substitute for human judgment can we harness its potential without compromising the integrity and compassion that family law requires.
This is part two in a three-part series. Part one: The benefits of AI in family law online dispute resolution.
Brett Carlson is a trusted family law adviser with nearly a decade of experience guiding clients through complex, high-stakes family law matters. Brett’s practice spans all areas of family law, with a particular focus on advising high-net-worth individuals, entrepreneurs, professionals and business owners. He is an Accredited Family Law Mediator with the Law Society of British Columbia and provides both mediation and arbitration services in Alberta for family law and estate matters.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Yvette Trancoso at Yvette.Trancoso-barrett@lexisnexis.ca or call 905-415-5811.