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Sexual Harassment in the Workplace: a Global Challenge

Over 122 countries prohibit sexual harassment in the workplace and 116 extend this protection to both women and men. In the aftermath of the #MeToo movement, employers are, more than ever, acutely aware of the global risks posed by sexual harassment. These include individual and corporate reputational damage, the risk of litigation, vicarious liability (in some legal systems) and criminal proceedings, as well as a negative impact on staff productivity, recruitment and retention.

Businesses have acted to strengthen workplace policies, introduce training and reinforce a culture of dignity and respect. Yet surveys around the world consistently suggest that sexual harassment remains under-reported in the workplace.

A recent UK poll found that two-thirds of Britons who have been harassed in the workplace failed to report their experience to anyone. This is undermining the effectiveness of workplace policies which, typically, depend on reporting to tackle issues and prevent a reoccurrence.

In this article we highlight some key issues when managing global harassment investigations, and review the latest legal developments, to support employers in their efforts to build employee trust in reporting and to reduce sexual harassment in all jurisdictions.

Managing global sexual harassment investigations – lessons learnt

Investigating sexual harassment across different jurisdictions needs careful handling, both legally and culturally.

Legal pitfalls

Some countries have procedural requirements that can wrong-foot the unwary. These may mandate the appointment of specific bodies or people to investigate complaints, such as an Internal Complaints Committee in India which must be constituted with a minimum number of female members.

Déborah Attali, employment partner in Eversheds Sutherland’s Paris office, says that employers should take care to involve the works council in French sexual harassment complaints.

‘Generally, the works council members must be informed of the complaint and involved in the investigation process. As such, the complaint is “on the record”.’

Top tips: global sexual harassment policies and procedures

  • Take advice on local legal requirements and cultural differences.
  • Have global standards (which may need to sensitively transcend local norms).
  • Provide accessible, confidential and trusted reporting frameworks.
  • Monitor workplace culture – proactively identify inconsistencies between policies and values and what happens in practice.
  • Act on hotspots.
  • Require regular training and awareness raising.
  • Keep an open mind – avoiding a rush to judgement.
  • Use confidentiality (non-disclosure agreements) appropriately/lawfully.

DIANE GILHOOLEY (pictured)

Global practice head of the human resources and pensions group

Eversheds Sutherland

Similarly, in Germany, Frank Achilles, employment partner in Eversheds Sutherland’s Munich office, warns employers conducting sexual harassment investigations ‘to beware of triggering fixed timescales within which a dismissal must take effect in order to be lawful. This means that the investigation should commence as quickly as reasonably possible, with the alleged perpetrator interviewed last. The risk being that a dismissed employee may seek reinstatement if the dismissal is not handled carefully.’

Data privacy rules also differ across countries and non-compliance, particularly across the EU, risks significant penalties. As such, employers gathering evidence as part of an investigation must consider the lawfulness of accessing CCTV images, personal messages on a work device or other personal data. A recent Swiss court decision illustrates the difficulties for employers. The court held that an employer acted unlawfully when reviewing private WhatsApp messages on a business mobile phone. It decided that unless the employer had clearly communicated the rules around the personal use of work devices, then employees had reasonable expectations of privacy, even on a business mobile phone.

Cultural challenges

Workplace culture, particularly where operations are dispersed globally, far from the head office location, must also be addressed if businesses are to change behaviour. In our experience, the appetite to raise and address issues can vary and unless the business establishes a global standard of behaviour that is universally applied in local contracts of employment and workplace rules, it can be difficult to ensure consistency of approach.

Local resistance to sexual harassment investigations can also arise where the alleged perpetrator is a key performer or leader in the business. It may want to retain the employee, despite the misconduct. While #MeToo has helped to shift the debate on these issues, bringing in an independent investigator can also help to achieve an appropriate outcome.

An enduring cultural challenge is giving local staff the confidence to speak up, wherever they are in the world and whatever the size or structure of the local team. Employers should not assume that the number of complaints is an accurate reflection of the level of harassment happening in a country. Even if a business’s head office has launched sexual harassment policies and training, employees may not feel sufficiently secure to raise a complaint if the complaint involves a local manager who has the power to dismiss or to influence their career.

Other factors may also come into play, as Jennifer Van Dale, Eversheds Sutherland employment partner in Hong Kong explains.

‘Power dynamics can make it very difficult for employees to challenge their boss, and this can be made more difficult in some countries if the topic is socially taboo, such as sex.’

Monitoring the effectiveness of policies and taking proactive steps to detect harassment will help to identify any warning signs or hotspots. For example, employers should check what is happening in practice by conducting anonymised staff surveys, asking questions at exit interviews, analysing absence data and canvassing views through mentoring programmes and staff networks.

Recent legal developments in sexual harassment

The fallout from #MeToo has also galvanised legal change. In 2019, the right of everyone to work free from violence and harassment was agreed in an international treaty (the ILO Violence and Harassment Convention) and will be progressively ratified by the 187 International Labour Organisation member states.

A number of themes have emerged globally from those countries that have implemented or proposed new harassment-related legislation. One such theme is restricting or eliminating the use of confidentiality/non-disclosure agreements (NDAs). Whilst it is recognised that there may be legitimate reasons to use such agreements to the benefit of both parties, the concern is that they can be used inappropriately to cover up issues of harassment and silence victims, resulting in hidden systemic issues within an organisation not being tackled and eliminated, with risk to other workers.

Emerging legislative themes – a summary

  • The appropriate use of non-disclosure agreements.
  • Extending sexual harassment protection to all workers, regardless of contractual status.
  • A positive obligation on employers to take corrective action.
  • Mandatory training.
  • Mandatory reporting of complaints/settlements.
  • Regulator or governmental codes of employer good practice.

For example, in the US state of New Jersey, legislation now prevents the enforcement of certain non-disclosure provisions contained in employment contracts and settlement agreements. Other states have also passed laws banning mandatory arbitration for sexual harassment claims. In the UK, legislative proposals provide that confidentiality agreements will be legally ineffective to prevent disclosures to certain organisations, including law enforcement agencies.

Another emerging theme is to place a greater responsibility on employers to take action to prevent sexual harassment from occurring. In some US states there are new requirements for a sexual harassment prevention policy that meets minimum prescribed requirements, including revamping existing employee training or introducing new training.

Recent legislation in Denmark clarified what might constitute sexual harassment, which necessitates employers reviewing workplace norms against the new standard, and new government guidance requires employers to complete a written risk assessment on harassment in the workplace. In Romania, employers are now obliged to implement an internal policy aimed at eliminating harassment at work. Hong Kong has also recently expanded the scope of protection against sexual harassment in the workplace, with a new code of practice issued by the Equal Opportunities Commission. In the UK, developments have taken the form of proposals for a legal duty to prevent harassment and a statutory code of conduct to help employers understand and demonstrate that they have taken all reasonable steps.

Greater transparency, through corporate disclosures, is also on the rise. For example, in Canada, amended legislation has been proposed to ensure that employers respond effectively to incidents of alleged harassment, including mandatory recording and reporting obligations. In some US states, disclosure of settlements, and whether such settlements included a NDA, will be required.

However, legislative developments to protect against harassment have not been globally universal and, despite the significant impact of #MeToo in a number of countries, less traction has been experienced in others. For example, in some countries in Asia, criminal proceedings are the only legal recourse, which may contribute to workplace harassment going unchallenged.

Comment

With legal change ongoing in different countries and sexual harassment controversies continuing to attract public attention, employers around the world are advised to be vigilant and to regularly review their policies and training.

To maintain investor confidence, staff morale and avoid brand damage, employers will be expected to demonstrate a genuine commitment to eliminating sexual harassment in the workplace and ensuring wider issues of inequality are tackled. Achieving this will typically require a long-term focus on creating and maintaining trusted reporting frameworks, on ensuring an appropriate workplace culture and on the effectiveness of policies across all operations, whatever the location, including taking appropriate action if harassment is found to have occurred.

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Fighting Fires

Beginning in June 2019 with a series of uncontrolled blazes, Australia’s bushfire season – since dubbed the ‘Black Summer’ – has spiralled into one of the worst on record in the country, causing widespread devastation to communities and wildlife.

By the end of January 2020, the fires had claimed more than 30 lives, burned through millions of acres of bush, forest and parks, and led to the deaths of an estimated one billion animals – with fears that some endangered species have been driven to extinction by the disaster. Over 2,000 homes have been destroyed and countless communities evacuated by the unprecedented ferocity of the bushfires. Smoke from the flames has caused disruption to major metropolitan areas such as Canberra, Sydney and Melbourne, with the air quality in Australian cities sinking to among the lowest in the world at various points throughout the crisis.

The crisis has impacted all sectors, as businesses, government organisations and charities were called into action to battle the flames – either on the front lines, or behind the scenes. With the legal function playing an ever-increasing role in the management of crises of all kinds, in-house lawyers throughout Australia are diligently working to play their part in the management and mitigation of the unfolding disaster.

Feeling the heat

The scale of wreckage caused by the fast-moving Australian bushfires has been catastrophic, and has placed a lot of pressure upon organisations involved in the relief effort. But, for general counsel on the ground, their response to the tragedy has been similar to that of any crisis.

‘The bushfires are no different to any other crisis that in-house lawyers can face. I have worked in other industries throughout my career and this is no different. Crisis is something that is faced by all in-house lawyers at some point in their careers,’ says Tara Eaton, head of legal and policy at Australian Red Cross.

Australian Red Cross is a humanitarian and community services charity that has raised over AU$127m towards the bushfire disaster relief effort.

‘At the Red Cross, we do have an existing framework within the team and we build on that during times of crisis. For example, the team is set up to have a lawyer dedicated to a particular department – with that, we are able to build stronger relationships,’ says Eaton.

‘Therefore, in a crisis, different departments within our organisation immediately think of legal. They get you involved in the crisis management team from the beginning and, because of that, you are abreast of issues as they develop, you are part of the team that sits on daily, or even sometimes multiple times a day, update calls.’

The pressure to deliver timely, accurate and efficient legal advice is well-covered ground for in-house counsel, but in times of crisis, where life is at stake, this imperative only intensifies, explains Eaton.

‘One of the most challenging things in a crisis is being able to provide ad hoc legal advice. Not knowing all the information, but still having to make a call on things because the issues are moving so quickly, is difficult. One of the greatest skills for in-house counsel everywhere is the ability to trust your gut,’ she says.

‘It is absolutely necessary to provide ad hoc legal advice in response to a crisis situation.’

‘This is a necessary skill in a crisis. Having knowledge of your industry, business and the requirements to make decisions is essential to providing the best guidance you can at any particular time. So we have been doing that as a team, as the bushfires have been developing. We have been issuing daily emails to support our colleagues, saying here is today’s legal guidance, and we build on that as the team faces additional questions.’

‘During a crisis, general counsel need to show compassion and understanding for members of their organisation, while maintaining a clear head and providing objective legal advice under pressure,’ agrees Katrina Bullock, general counsel at Greenpeace Australia.

‘This requires resilience, a strong support network and self-care.’

Also feeling the pressure to provide speedy legal advice during this crisis is Sarah Donald, general counsel of Sunshine Coast Council. The Sunshine Coast is just one of many local councils across the eastern seaboard of Australia that have felt the devastating effects of the bushfires.

‘The recent bushfires presented unprecedented challenge to our community, with the immediate evacuation and displacement of thousands of people,’ says Donald.

‘It is absolutely necessary to provide ad hoc legal advice in response to a crisis situation.’

Sow the seeds

With times of crisis adding more layers of pressure to lawyers already grappling with the demands of the in-house job, steps taken pre-crisis can go a long way to ensuring the response to disaster situations is efficient and as stress-free as possible. Having systems in place aimed at mitigating risk during times of crisis is essential to providing effective legal advice.

‘Bushfires are not uncommon in Australia,’ says Donald.

‘As a result, significant systems are in place to manage these events. In Queensland, these are managed pursuant to the Queensland Disaster Management Act 2003. This Act outlines the principles of disaster management in Queensland.’

Provisions under the Act provide a legal framework for local councils during times of crisis, covering the disaster response capabilities required of local government and the training required of those involved in disaster management.

‘Local government is responsible for managing disaster events in our local areas, and this is done through our Local Disaster Management Group (LDMG). Our LDMG is coordinated by the Sunshine Coast Council, and membership is made up of liaisons from all emergency agencies (police, fire, ambulance, State Emergency Services), as well as community service providers (both government and non-government) and media representatives,’ outlines Donald.

‘The Council and in particular our disaster management team, works very hard to ensure we have excellent relationships with our emergency services partners, so we are able to have seamless operations when we are required to activate our disaster management plans and coordination centre in response to events affecting our region. These relationships were essential when we were managing the recent bushfires in our region.’

The importance of cultivating relationships extends to external counsel to whom the legal team can turn when crises demand specialised legal advice, fast.

‘You may be called on to give urgent advice on specialist areas that are not necessarily within your own expertise – then it is good to have good relationships with advisers that you can call on quickly,’ explains Astrid Heward, general counsel and general manager at the Bureau of Meteorology in Australia.

Bigger Picture

The crisis highlights the need for organisations and their in-house teams to be appropriately prepared pre-crisis, and efficient in the provision of advice mid-crisis. But, for some organisations, their work will stretch far into the future, beyond the crisis of the day.

‘We have a professional duty to ensure that our response is not just limited to the immediate effects of these fires, but rather focused on the root cause,’ explains Katrina Bullock, general counsel at Greenpeace Australia.

‘Climate change is driving catastrophic bushfires. This is a coal-fired crisis: coal is driving both the bushfire crisis, and the Australian federal government’s inaction on climate. We have ignited the shared social and economic power of Australians through our climate petition, which demands that the federal government respond to the bushfires by declaring a climate emergency and taking action to mitigate climate change. Over 81,000 people have signed to date. Across the organisation, we continue our multifaceted work to support renewable energy investments and dismantle the systems that support the climate crisis; to hold those responsible for contributing to climate change accountable – in the streets, at the ballot boxes, in financial markets and in the courts.’

She adds: ‘It is becoming increasingly important to embrace new, time-saving technologies and ways of working that empower our crew to make well-informed, timely decisions. I think we will also see increasing climate-related litigation against Australian directors who have acted negligently in ignoring climate risks, and a surge in activist investors who boycott fossil fuels. This will generate some interesting and complex legal work in the years ahead.’

‘For example, I’m no expert in industrial relations, so I have a couple of advisers I trust that I can call to bounce things off quickly.’

However, when time is of the essence, it is ultimately up to in-house legal teams to make initial assessments and provide preliminary legal advice in times of crisis.

‘Our external firms have been very supportive, but in a crisis you do not have a lot of time to go out to external counsel,’ says Eaton.

‘I have always described the role of in-house counsel as being a GP: we diagnose the head colds, the broken ankles, and then decide if we need to go out and see an ear, nose and throat surgeon. But we as in-house counsel are doing the first diagnosis of what is wrong.’

In the end, whether seeking guidance from external advisers or relying on internal resources, general counsel depend upon on the relationships they have developed.

‘To me, it boils down to relationships – we as lawyers work really closely with our colleagues to understand the issues that arise, and then work with them to find solutions,’ says Eaton.

‘It is important for in-house counsel to not become the department of “no” – of course we have to be that in this role sometimes – but particularly pointed in a crisis are the relationships you have built that enable you to have a seat at the table. Your practical guidance can be implemented very easily in a crisis; because you do not have a lot of time, you do not have the ability to come up with new policies and procedures – you just have time to give short, sharp guidance to help.’

Where there’s smoke there’s fire

Managing the legal efforts from the skies is Heward at the Bureau of Meteorology (BOM), an executive agency within the Australian government responsible for compiling weather forecasts, warnings and observations and delivering them to the Australian public.

‘The Bureau’s mission is “to provide trusted, reliable and responsive weather, water, climate, and ocean services for Australia – all day, every day”, and Bureau staff have a very strong sense of public service,’ explains Heward.

‘The majority of the work that my team does to support our operational groups during the extreme weather season in fact happens when Australia is not in its “severe weather season”.’

Australia’s severe weather season traditionally occurs in spring and summer, and features weather events such as drought, severe thunderstorms, flooding, tropical cyclones and bushfires.

‘A key factor in the success of the emergency service response to the bushfire crisis is the collaboration and co-ordination between the various agencies that are involved in the response effort. The legal team supports this with MoUs [Memorandum of Understanding]/agreements that facilitate the Bureau’s meteorologists to be embedded in the emergency services as required in extreme weather events.’

‘It is important for in-house counsel to not become the department of “no”.’

Nevertheless, as with many crises, planning can only take you so far. Severe weather is, by its nature, extremely volatile. Emergency situations are inevitable. When adversities such as the devastating Australian bushfires occur, general counsel are relied upon to provide fast, accurate and essential legal advice.

‘If I am called upon to give urgent advice, I try to keep an eye on the bigger picture, and the risk levels, to understand how the advice needs to be prepared and presented. It’s obviously important to give the right answer, but “right and done” is better than “perfect”,’ outlines Heward.

‘One of the most challenging issues that arose in my role over the last couple of months related to the Meteorological Authority Office. Under the Civil Aviation Regulations, the Bureau’s CEO is able to authorise equipment to be used to provide reports for use in forecasts for the purposes of civil aviation.’

Thick plumes of smoke that wafted into cities had an adverse effect on the visibility of crucial airport services. Providing visibility reports are essential. However, equipment used to provide such reports was not always regulatory compliant to measure smoke particles.

‘Existing runway visual range (RVR) equipment at certain airports in Australia was already authorised for the purposes of providing reports in relation to fog/mist, but not for other types of lithometeor particles (such as smoke),’ says Heward.

‘Due to the serious smoke haze experienced at these airports, the Met Authority team had to work urgently to manage the complex regulatory and technical matters that allowed for the RVR equipment to also be authorised for smoke.’

Paved with good intentions

On the ground, in-house counsel are supporting organisations dealing directly with the physical fallout caused by the bushfires. Life-or-death videos from inside the inferno have been viewed by millions of people across the globe, with the destruction sparking an outpouring of donations from those eager to help – both financially, and otherwise.

‘The images of the bushfires have been broadcast worldwide,’ explains Eaton.

‘The world is a much smaller place because of the speed in which news travels and just the outpouring of support from Australia has been phenomenal, as well as the outpouring from all parts of the world: Mongolia, Estonia, and the US – every corner of the world knows about the bushfires and wants to help. This is humanity in action.’

Greenpeace Australia has also drawn attention and support to the cause.

‘We raised over $74,000 on behalf of the Rural Fire Service to support their work in battling the fires on the ground,’ says Bullock.

‘Additionally, we have provided a platform for bushfire survivors to tell their stories to the world, and our creative team has been busy documenting the destruction of homes and nature to help people truly understand the effects of climate-related emergencies.’

The response of people wanting to donate to the cause has been overwhelming, and has been helped by social media. But, while undoubtedly positive, charity in the 21st century raises unique questions that must be addressed by legal teams such as Eaton’s.

‘A lot of the issues that we have been working through relate to the proliferation of social media and people sharing our fundraising links,’ she explains.

The response of people wanting to donate to the cause has been overwhelming.

‘This is therefore raising questions: can we accept donations from overseas? What are our limitations with respect to the donations? How do I characterise those donations? Could we be considered fundraising in other jurisdictions? If so, what does that mean?’

‘Coming up with this guidance in the online space can be very difficult, because you might have one link in Australia which now can be shared globally. Nowadays, those issues are just tricky for all businesses to navigate.’

‘This is not just relevant to us in this particular situation – talking about disasters – but I am sure many other legal counsels are faced with the issue of how do we make our laws, which are jurisdictionally based, relevant to a global online environment.’

Overcoming this challenge, Eaton focused on drawing legal similarities to other similar situations.

‘How I characterise this is similar to a financial services organisation,’ she says.

‘When they are running an IPO, you are getting money from the public to do something – namely, an IPO is aligned to accepting donations from the public – and with that comes great responsibility to make sure you are telling people accurately where that money is going, how that money is being spent, and where those funds are going to be allocated.’

‘So one of the more tricky issues we have been managing is around the social media response and global organisations wanting to fundraise on our behalf – what does that mean from a regulatory perspective?’

As in-house counsel operating on the front lines, crisis management should be viewed through multiple lenses, stresses Eaton.

‘Part of our role, I think, as legal is to not only approach things through a legal lens but, in times of emergencies, to also bring a different focus. By looking at it through the eyes of our donors – our very extraordinarily generous donors – as well as the community, we have to consider: what are their expectations? What are the needs of the community we are trying to serve? How are we balancing those needs? How are we trying to do the most good we can, and support people in this challenging time? All whilst making sure we have all the checks and balances in place.’

At your own risk

Whether battling the fallout of a financial meltdown, supply chain interruption or environmental disaster – such as the Australian bushfires – crisis management is a core skill for general counsel, irrespective of the industry they represent. Counsel will be relied upon to give efficient, fast and accurate legal advice during emergencies, and play a key role in navigating the business through complex regulatory challenges and obstacles in times of disaster.

Despite having to overcome major legal obstacles, the scope of legal work can be rewarding for those on the front lines, believes Eaton.

‘It has been fascinating, actually. One of the things I love about being in-house is the diversity of work that we are faced with on a daily basis, and when there is a disaster, such as the bush fires, it has really come to the fore.’

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Too much of a good thing?

Nearly $1bn was invested in legal technology and New Law disruptors in 2018. That was across more than 50 funding rounds and included start-ups through to more established players, according to research from Investec. Venture capital, private equity, non-legal companies and trade buyers are increasingly interested in what they see as a highly lucrative legal sector.

The frequency and scope of legal tech funding has also jumped markedly: a Thomson Reuters report in mid-2017 put investment into UK legal tech start-ups at just £16m in the previous 18 months. Hundreds of legal tech companies have subsequently popped up. Every law firm is quick to tout its latest innovation or partnership with a technology provider, while some even have incubators where they work with start-ups over several months, honing products.

But the adoption of legal tech and automation tools by in-house legal departments is harder to track. Many general counsel complain it is difficult to deduce the substance from the noise, believing in-house tech solutions largely fall into the latter camp. Others are more upbeat on progress made over the last few years: ‘There’s been a shift,’ comments easyJet group GC and company secretary Maaike de Bie. ‘Where tech and automation were once looked at by some in-house legal teams, they are now definitely mainstream.’

The growing influence and prevalence of in-house legal operations teams, continued pressure on budgets and a desire to improve the quality of work for in-house lawyers are all contributing to the change. There is no shortage of vendors looking to crack the in-house market either. With this in mind, we surveyed 70 legal departments and spoke to more than two dozen GCs to assess how much progress has been made with legal tech; what is being used and what for; the major barriers to adoption; and expectations for the future.

With two-thirds of in-house teams reporting they have no dedicated annual budget for legal tech and a third not currently exploring new tools, the conversation is shifting from what is out there to how teams can make use of existing technology and the importance of the broader digital transformation triumvirate of people, process and technology.

‘Technology is a facilitator and part of a solution. It is never in and of itself a solution to a problem,’ says Pearson associate GC for technology and operations, Robert Mignanelli. ‘You first have to scope your problem, understand what you’re trying to solve and then find a piece of technology that can help automate and drive that.’

Going mainstream

GCs constantly talk about running their legal teams like a business. To do that, however, you need to know exactly the nature of that business. Document management systems, workflow tools, e-billing solutions and management information services have existed for many years, but there has been a rapid evolution and increasing sophistication of these products. They have crucially become more user-friendly too.

Broadly, there has been an increase in basic management tools that are not necessarily cutting edge but vital to running a department. Increasingly, the point has been about finding systems that can talk to others so that, for instance, your workflow tool and document management system work in tandem. As an example, Neota Logic – which offers document management, expertise automation and workflow automation all in one platform – finds many legal departments need to start with a simple triage application to work out exactly what their department has to deal with on a daily basis and route those requests to the right people.

‘It’s changed rapidly,’ notes UBS investment bank and EMEA GC Simon Croxford. ‘I’m a big fan of the technology and process efficiency developments we’re seeing in the industry, because there is a lot that we can improve in our legal departments to become more efficient.’

Meanwhile, Barclays has integrated its matter management, e-billing, time recording and external legal spend tracker over the past three years. Head of legal transformation Ben Eason comments: ‘We’ve taken the time and the effort to do that, even if it’s not deemed the fancy work. That enables you then to start looking at stuff like AI.’

The consensus is that using tech has moved from rhetoric to action, particularly for larger in-house teams. At Vodafone Business, the FTSE 100 telecoms company’s B2B arm, legal director Kerry Phillip implemented a contract lifecycle platform three years ago. There are more than 60,000 searchable contracts on that system now, used across ten countries, while the workflow tool sends work directly to the relevant team. Phillip says that at the time it was first used, however, Vodafone was an outlier: ‘It is now accepted you need to do it and there are a huge range of providers out there. It’s unusual not to be thinking about or implementing some form of tech, which was not the case three years ago.’

‘There’s been a shift. Tech and automation are now definitely mainstream.’

As a further sign of growth, Thomson Reuters made a significant play in this area with the mid-2019 acquisition of secure file-sharing and collaboration platform HighQ for a reported £200m. HighQ sells to both law firms and in-house legal departments, marketing itself to the latter as a tool for streamlining operations. There has also been a boom in contract tools, broadly split into pre and post-signature analysis: contract review, due diligence, contract lifecycle management and understanding the data within contracts. Israel-based contract review automation company LawGeex, which announced a partnership with Neota Logic to automate a third-party non-disclosure agreement (NDA) approval process, is cited by multiple GCs. Liberty Mutual Insurance innovation director for corporate legal, Jeffrey Marple, comments: ‘In the last year or so there’s been a massive explosion in the contract space. Based on the number of products, there must be a market, because they seem to be popping up everywhere.’

Trainline GC and director of regulatory affairs Neil Murrin adds: ‘What you’ve got now is a lot of market entrants and that’s driving competition among providers, but we are still in a period of development. Certainly with some of the AI and legal tech we’ve used, we’ve been the guinea pigs.’

Back to basics

Automation of repetitive, low-value work has become more commonplace in-house, however. Tools for automating NDAs and self-service tools are widely provided by GCs as examples of successful recent tech projects. Just over a third of the in-house legal teams surveyed say they use tools to automate contract and data management, while NDAs and other forms and templates are automated by 8% and 14% respectively.

ICICI Bank UK GC Priti Shetty has introduced an internal chatbot, developed by the business itself. It is used to identify which clauses are important and do not necessarily need to be fielded by in-house lawyers. Sheldon Renkema, general manager of legal for Australian retail conglomerate Wesfarmers, used AI automation platform Neota Logic to build marketing review and contract review tools. The former is used to educate the business about the most important aspects of marketing campaigns from a legal perspective, a built-in response to the team being asked the same questions repeatedly. The latter, meanwhile, ensures contract owners in the business provide the legal team with relevant background data and context.

‘We’re looking at further opportunities for self-service tools, but you’ve got to do that quite cautiously because the personal relationship is super important,’ he comments. ‘It means we get a seat at the table because we are helping people, and have closer relationships, and get involved earlier on, which makes our lives easier.’

Many GCs are also not convinced their legal teams need to use specific legal tech products. ‘It’s not all about AI and complicated sounding terminology – at one of the biggest tech companies in the world, I have found that the most basic tools can transform how lawyers service their client teams,’ Facebook associate GC Caroline Kenny comments. ‘We use document-sharing tools like Google Docs and Quip, which clients can feed into in real time, saving the back and forth and duplication. These things are not specific to legal teams.’

Anglo American head of legal for M&A, Samantha Thompson, joined the FTSE 100 mining company at the end of last year. In March, she took on an optimisation and innovation role with a mandate to assess legal tech offerings. She quickly learned that the legal department was better placed to optimise use of existing tools within the organisation as a priority, such as Microsoft Office 365, rather than bespoke legal tech. That has involved talking to the company’s IT team to put the legal function forward for any upcoming pilots in areas such as document management. ‘What has struck me is there are an awful lot of different options out there, and people are trying to sell me things, and want to talk about legal tech,’ she comments. ‘I stepped back and said: “Lawyers don’t necessarily have special needs – we need to optimise the tech that we’ve got.”’

It is a common sentiment, with many GCs referencing Office 365 in particular, including those at blue-chip corporates Pearson, Centrica, Vodafone, Aviva, Spire, Three and easyJet. Most highlight it as an intuitive collaboration platform, while group communication tools such as Microsoft Teams are also widely used. Former Royal Mail GC de Bie, who joined easyJet in mid-2019, says when she is looking at tech, her first thought is not whether there is a tool on the market, but whether she can improve the process around the problem first and whether it can be solved by existing tools within the company. ‘Is there something I can adapt that works already within the enterprise environment, rather than bringing in another tool into the already many applications that many organisations have? The more you bring in, the more you are introducing complexity and risk.’

Case study: Wesfarmers

The Australian retail conglomerate Wesfarmers introduced a legal operations and tech working group three years ago, led by general manager of legal, Sheldon Renkema. The team of five had been looking at new processes and tech tools part time, alongside their day-to-day roles.

But they have already implemented a number of tech products: Xakia for matter management, Persuit for tendering work and Neota Logic to create various self-service applications in areas such as marketing. Xakia has established metrics around internal demand for the legal team, while Renkema says Persuit has saved the company hundreds of thousands of dollars on high-volume areas of work, such as public liability claims. Wesfarmers uploads a matter to the system that law firms then bid for.

Renkema comments: ‘We found quite quickly there was a huge delta between the top and bottom price, but within the space of a couple of months that narrowed and we discovered what the market price was. Some firms self-selected out of that and others love it.’

As part of its declared strategy of reducing the volume of low-complexity and low-strategic significance work that the legal team is engaged in, Wesfarmers focused on the automation of the high volume of NDAs that the company creates, choosing Neota to provide a solution integrated with Neota’s Workflow and Analytics Dashboard, allowing Wesfarmers’ lawyers a single console from which to view the status of every NDA associated with the business. The dashboard not only tracks at what stage of the process a particular NDA is up to, but also provides insight into each individual agreement.

Renkema noted that early business users of the application ‘Were surprised at how easy and intuitive the application is to use’ and highlighted the efficiencies it has created ‘By allowing for a much quicker turnaround.’

Aviva’s head of legal operations, Caroline Brown, adds: ‘While there are a lot of nuanced tools out there, there are also lots of non-legal tools we’ve been able to use. We’re looking at working with Microsoft to roll out Office 365 and we’re finding it to be an intuitive tool. People have been able to pick up the features easily, which raises the bar for other technology platforms on things like file and document sharing.’

Three GC and regulatory affairs director Stephen Lerner has similarly turned to a non-legal tech solution provided by Microsoft, using business analytics tool Power BI. Three years ago, he hired four non-lawyer business analysts and IT experts into his legal, commercial and regulatory affairs team of 130 staff. That team is tasked with using Power BI to mine internal data and track things such as resource optimisation – how many matters are coming into the legal function and how they are staffed. ‘It took probably a year or so to get it right, but now I can open up this tool on my desktop any time and see what demand is coming through the department, and how we are staffed to meet that,’ he comments. Similar outcomes can be achieved with an application built in by Neota Logic using its analytics component on its platform to access the various requests coming into the legal department.

GCs also say the people aspect is more important than the technology. Digital training programmes and the employment of non-lawyer professionals or lawyers with wider skillsets are firmly on the agenda. At the beginning of 2018, UBS kick-started an in-house legal team transformation and digitisation programme. Croxford says there has been a focus on enabling its lawyers to talk technology. This has manifested in a number of ways, including an in-house academy to educate lawyers in areas such as digital literacy – understanding the technology it uses and how it impacts the business. But there are softer aspects, such as sitting product-focused lawyers with data privacy and technology lawyers so they can mix ideas.

‘There are lawyers who exist with data and tech skills or exist with product skills, but the market hasn’t developed to the point where it’s doing what we’re trying to do, which is combine the two,’ he comments. ‘To be a successful in-house lawyer nowadays you need a variety of different skills that were rarely needed five years ago and definitely not ten years ago.’

Making the case

It is clear why GCs turn to existing company tools for solutions. The cost of legal tech, and finding ways to articulate the business case and expected returns, is regularly cited as a major obstacle to adoption. Of the third of survey respondents to report a dedicated budget for legal technology, most were at 10% or less of their overall legal spend. Many GCs say the cost of much legal tech has been prohibitively expensive, although it is improving, while establishing which metrics show return on investment remains difficult.

Two-thirds say their company’s IT department is involved in the decision-making process for implementing technology, with procurement and the C-suite involved for a third each as well. But for half of the survey’s respondents, less than 50% of their legal spend is on outside counsel. They are therefore looking for ways to reduce internal costs. Phoenix Group GC Quentin Zentner, who uses legal spend-tracking software Apperio, comments: ‘Securing a budget is key. You need a good, plausible business case. It was easier to secure approval by making the proposed technology spend part of a wider cost-cutting initiative.’

Liberty’s Marple comments: ‘Technology providers claim to save you money on x, y, and z, and they probably will, but unfortunately we may not have a clear understanding of the possible savings. You do all the research and analysis you can up front, but sometimes you just have to hold your breath and jump in, and hopefully it works out.’

There is also a sense that much legal tech offers solutions to non-existent problems and does not easily connect to existing tech infrastructure. ‘A lot of the solutions out there are looking for a problem. All legal departments are different and the tech all seems to be a bit one-size- fits-all,’ Spire GC and group company secretary Dan Toner comments. ‘The tech needs to come from the demand side. The cost of it is dropping rapidly, but it’s working out how much it works with our tech, and it’s getting the time and the head space to put work into it.’

Adds Anglo American’s Thompson: ‘The impression I get is people are just struggling with the number of products out there and it’s not clear that there’s a market leader or someone with longevity, or that there’s even a need for the niche tech.’ This is where the increasing prevalence of operations professionals within legal teams comes in. Only 33% of those surveyed have a legal operations role within their team, but many of those achieving tangible results with tech have done so through legal ops. Guardian Media Group GC and company secretary Stephen Godsell comments: ‘The great value of operations is that it gives somebody the task of driving change in a way that it’s their day-to-day job. Lawyers are very busy and there’s not a lot of space to investigate how we can do things differently.’

Neota, a no-code AI automation platform targeting professional services companies, is just about to launch a web-based tool called Canvas, which allows subject-matter experts, such as lawyers, to prototype apps for automating legal services. Vice president, markets and growth, Jackson Liu, says demand from in-house legal teams for technology has increased, led by the larger North American market, but with EMEA and Asia-Pacific growing quickly. Legal operations teams – which have featured in the US market for longer – led process improvements, with many now looking to add technology to those.

Implementing new technology: a guide for GCS

Finding internal technology champions, building use cases across multiple departments, learning how to measure return on investment (ROI), and simply being willing to give it a go: these are the keys to success for using legal technology, says Neota Logic’s director of client solutions and engagement, Shaz Aziz.

‘Tech providers should help people understand the market, especially when companies are early on in the technology-building and solution-finding process,’ he says. ‘You can look at the legal tech market and see 100 different names and it just looks like the Wild West.’

To navigate that plethora of providers, Aziz says in-house legal teams should expect potential tech partners to help them establish potential use cases and to understand their business’ needs and requirements. ‘Back in the day, you’d sell the software to somebody, chuck it over the fence and they’d work out how to use it.’

As technology providers are increasingly expected to be advisers on technology, in-house legal departments will need to identify internal technology champions – often legal operations staff but, just as regularly, legal counsel – and importantly, establish use cases across multiple departments. If a legal team can find a solution that crosses over into human resources or procurement then there is greater scope for adding value across the business, as well as sharing the cost. Aziz comments: ‘If you can connect those people up in the business and allow cross-sharing, then it makes the process of getting buy-in much easier.’

Furthermore, legal teams need to learn how to measure the ROI from technology. This can be difficult to do with potential tech partners as information on cost is not easily shared, however. ‘If you can, in a granular way, understand what the cost saving is and can start to be able to put figures to things, that can make a massive difference in the early stage,’ adds Aziz.

‘They’re now looking for a platform, an off-the-shelf solution, to look at how they can implement automation capabilities on top of those new processes. Having a separate team focus on the process and technology side in legal operations is good because it separates that from the legal counsel team, which means they’re not dragged away from the day-to-day tasks.’

GCs are also leaning on their law firm advisers to use technology to provide more efficient, and cheaper, services. There is a transparency issue on that side as well, however, with GCs unclear on what law firms offer, despite the bevvy of press releases each pushes regarding their innovation credentials. Anglo American group GC Richard Price comments: ‘They’re all talking about it and they’re all looking at it, and they’re talking to us about how they might be able to use tech in a way to optimise the service that they provide to us, but we’re yet to see significant applications of that.’

Others are more optimistic. UBS talks to the firms that run innovation and tech incubators to keep an eye on developments. Croxford sees the growth of managed service and contracting teams at some firms as an important development too. ‘It’s not just the sourcing of legal advice but how we run our departments as well. That’s the next evolution of relationships between banks and external law firms.’

Demonstrating value

The GC100 group, made up of more than 125 GCs and company secretaries primarily from the FTSE 100, has put tech growth and adoption onto its agenda. Everybody is keen to share and get a grip on the market. ‘Everyone assumes that they’re far behind and everyone else is much further ahead, and it’s helpful to talk to our peers to understand we’re all just trying to get our arms around it,’ Price comments.

There is undoubted appetite, and need, for in-house legal departments to adopt tech. There are multiple examples of early success in automating volume work, while many teams are now tracking data on their use of internal and external resource. That resulting data is where many GCs see the next wave of advancement. Analytics and then true AI and machine learning – despite the prevalent scepticism – will be used by GCs to understand their workflow and allow it to be optimised. More AI solutions aimed at interpreting and creating legal documents and contracts are expected to pop up as well.

But GCs are keen to pull the conversation away from a focus on pure technology, and back to a broader emphasis on how that fits in with people and teams. They are analysing whether they have the right people in the right locations, the right levels of seniority, and then whether they are doing the right work. ‘To run a truly successful and efficient department, technology helps you get there, but it’s not the be-all and end-all,’ Croxford comments.

Adds de Bie: ‘I’m a big fan of data. Business colleagues are used to presenting data and level of risk, and I don’t see any reason why we as a legal team cannot do the same. I’ve really seen the value of collecting data to demonstrate value.’

For more information, please contact: E: [email protected] www.neotalogic.com

Artwork and imagery used by kind permission of Haynes Publishing Group, a leading supplier of content, data and innovative workflow solutions for the automotive industry and motorists. For more, see www.haynes.com

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Foreword: Steven Gartner

Diversity and inclusion initiatives have risen in prominence across the business world in recent years. They stem from core business goals – not abstract social objectives – and are publicly embraced and supported by leadership at the highest levels. Law firms around the world have long recognised the need to invest in diversity and inclusion programmes that further commitment to these ideals, but industry progress has been modest.

At Willkie, we believe everyone benefits from a diverse and inclusive workplace in which all personnel are treated with courtesy, dignity, and respect. The confluence of people of different gender identities, races, cultures, religions, beliefs, and sexual orientations across the firm yields a stronger team that is more adept at creative problem-solving on behalf of our clients. In fact, Willkie’s first female associate, Mary MacDonagh, was hired in 1939, which was extremely rare at the time. We have always known our most valuable asset is our people.

We are committed to continuing to enhance diversity and inclusion on a long-term basis, including in our leadership ranks. Currently, two women and one diverse partner are on our firm’s management committee. Seven women and five diverse partners serve as department or practice group chairs or co-chairs, five women and three diverse partners or counsel lead firm committees, and three diverse partners and two women serve as office managing partners. Of the US-based attorneys elected to the partnership this past year, 45% are women and 36% are diverse. The firm’s head of our Latin America Practice Group, Maria-Leticia Ossa Daza, who is profiled in this issue, has done a tremendous amount to support these efforts by actively supporting and mentoring other women at Willkie and across the industry. She leads our firm’s Latinx Affinity Group and regularly speaks about diversity at industry conferences in Latin America and the US.

As companies around the world have implemented comprehensive diversity programmes, law firms have welcomed the opportunity to partner with clients in these efforts. At Willkie, we regularly collaborate with clients on initiatives to further diversity and inclusion, including educational seminars, conferences and roundtable panels, and pro bono and mentorship programmes. Diversity also plays a major role in the success of our Latin America Practice Group, made up of lawyers from Brazil, Mexico, Colombia, Chile and Uruguay. This diversity enriches our practice and client relationships across Latin America, and our firm generally.

On a firm-wide level, embracing diversity and inclusion is critical to our overall success. We recognise that there is still much more to do at Willkie and across the legal industry. Diversity and inclusion will remain core to the values of the firm. We look forward to continuing our work, in conjunction with our colleagues and clients, of cultivating an environment that is diverse and inclusive at all levels.

Steven Gartner Chairman Willkie Farr & Gallagher LLP

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A new era of matriarchal lawyers

As a region, Latin America accounts for a 22% share of all lawyers globally, and an estimated 33% share of female lawyers globally. Despite this, just 25% of top management roles are occupied by women, and those in top management roles earn just 60% of that paid to their male counterparts. In Argentina, Brazil, Colombia, Chile, Mexico, Peru and Venezuela, women earn between 49 and 68 cents for every dollar that men earn in the same or similar roles.

Disappointingly, this is in step with much of the rest of the world. According to a 2019 report published by the World Bank, just six countries globally achieved a perfect score in gender equality, which means that the law in each of those countries treats men and women equally in every dimension measured by the research. The report covered 190 countries.

While Latin America shares the struggle for gender equality with much of the world, it faces unique barriers (in addition to those common to the rest of the world) in achieving that goal. Chiefly, the region’s distinct cultural and religious history has led to especially institutionalised gender bias, informing modern day attitudes which in turn make efficient reform difficult. A 2013 McKinsey & Company survey of 547 executives across Latin America found that 70% of those surveyed indicated that societal views of women’s primary responsibilities – namely, the raising of families – were a strong influence on how women make career decisions.

In some countries in the region, the institutionalised gender bias is subtle, but in others it is more obvious. Jair Bolsonaro, president of Brazil, Latin America’s largest economy and the world’s fourth-largest democracy, is renowned for his ‘government-by-machismo’ approach to politics, and is illustrative of populist attitudes toward women. Bolsonaro has been the subject of numerous protests since his inauguration, due to his inflammatory comments regarding women, as well as various ethnic and sexual minority groups. Bolsonaro has outright placed himself in opposition to what he pejoratively calls ‘gender ideology’ – a largely conservative term used to undermine pushes for equality as antithetical to religious and family values.

“Bolsonaro has outright placed himself in opposition to what he pejoratively calls ‘gender ideology’.”

But it is not just men who perpetuate gender stereotypes. Arguably, a large number of Latin American women also feed into these traditional gender roles. They believe it is their responsibility to take on all of the ‘home work’, which becomes more apparent after having children. Patricia Barbelli, Diageo’s legal and corporate security director of Paraguay, Uruguay, and Brazil, argues that men and women may take up distinctly separate positions at both work and home, to encourage a work-life balance.

Female perpetuation of stereotypes has also been seen through the remarks of Damares Alves, Brazilian minister of human rights, family and women, who assists Bolsonaro in his battle against ‘gender ideology’. Alves strongly supports traditional gender roles and is an opponent of so-called ‘ideological indoctrination’. In January 2019, when Bolsonaro came to power, Alves tweeted: ‘Women are made to be mothers’ and ‘It’s a new era in Brazil: Boys wear blue and girls wear pink!’. Alves asserts the view that diversity and inclusion programmes are a ‘threat’ to Brazilian families. Bolsonaro has also concisely propagated the long-peddled excuse for gaps in pay between men and women, arguing that men and women should not receive equal salaries and that he wouldn’t hire women with the same salary as men because women may fall pregnant.

The gender pay gap

According to the World Economic Forum, the gender pay gap of 29.2% in Latin America will take an estimated 64 years to close. The lack of practical regulation requiring businesses to observe compliance with equal rights legislation, especially gender pay regulation, to government and authoritative bodies, remains a substantial obstacle in ending the gender pay gap. Currently in Latin America, recording obligations exist only in Peru and Colombia. That said, Latin American governments are increasingly making an active effort to rectify this.

Gender discrimination is expressly prohibited in Argentina, Brazil, Colombia, Chile, Mexico, Peru and Venezuela. These nations all allow for provisions for differing legal action in relation to employees, against their respective employers, who permit gender discrimination within the workplace. For instance, in Mexico, employers who allow gender discrimination in the workplace may face labour ministry sanctions. Mexican employees are also able to bring civil action for ‘moral damages’ and criminal action under discrimination against their employer. These employees can also choose to file a complaint to the National Commission to Prevent Discrimination for payment of damages, a public warning, and/or a public or private apology.

In 2011, the Colombian Ministry of Labour stated that all Colombian businesses must document a gender pay record for audit or visits. Though this is not a direct recording requirement, it requires businesses to retain salary, job specifications, and requirements when beginning employment at the business via a gender lens.

More recently, in 2017, the Peruvian government passed a law prohibiting discrimination between men and women. The law prohibits salary discrimination between men and women, implements a recording specification (similar to that of Colombia) and prescribes businesses to notify their respective employees of payroll initiatives (and aspects affecting wages). Failure to comply with such laws may result in severe penalties for the employer. The 2017 law also recognised that sustained discrimination within the workplace would be treated as a ‘hostile act’, raising grounds for legal action against employers to allege ‘constructive dismissal’ and the payment of ‘mandatory severance’.

Research suggests that one of the primary causes of the gender pay gap is lack of representation of women in senior roles, but the lack of women in senior roles is a problem in itself. Companies and law firms are only now beginning to view gender bias as a problem. This is seen to be a separate issue that must first be addressed before the inclusion of women in senior roles. ‘The top levels of companies and most partners within law firms are still being filled by men,’ says Barbelli. According to the 2018 McKinsey & Company and LeanIn.org ‘Women in the Workplace’ paper, men surpass women at every level within the workplace.

Mónica Jiménez González, secretary general of Ecopetrol Colombia SA, outlines how instead of taking slow and rigid action in addressing the gender pay gap, Ecopetrol is analysing its own company data. Ecopetrol assesses the salaries of their employees at all levels with reference to their job title. When the company has completed a comparative analysis of all job specifications, then Ecopetrol decides the employee salary. This comparative method disregards any gender bias.

Private progress

With negative attitudes toward the position of women in the workplace common at all levels of Latin American society – from religious institutions to the highest of national offices – and with governments occupied by more imminent concerns (such as widespread corruption), it may fall to private businesses to take the lead in correcting entrenched biases and disparity in the workplace.

‘We can see that in the last few years significant efforts have been made by various governments, but most importantly by the privately-owned companies, which I believe are the present leaders when talking about changing traditional mind-sets, not only as a part of natural evolution, but also as a way to improve their labour environments, which can surely lead to a revenue increase as well,’ says Ivonne Romero, SSA Mexico’s general counsel.

As such, internally developed policies and efforts in the private sector might become the most effective tool at advancing the cause of diversity, equality, and inclusion in Latin America.

‘We make sure that we have recruitment processes with an equal number of men and women candidates, in order to ensure that we have an expanded applicant pool that allows professionals to be selected objectively,’ says Sandra Monroy, legal director, Andean region for Uber and Uber Eats.

Programmes such as diversity in candidate pools, as implemented at Uber, are intended to safeguard the inclusion of women and other specified groups within the workplace. The 2016 Harvard Business Review article ‘If There’s Only One Woman in Your Candidate Pool, There’s Statistically No Chance She’ll Be Hired’ outlines that when ‘there were two women in the pool of [four] finalists, the status quo changed, resulting in a woman becoming the favoured candidate,’ and there would be a 50% chance of hiring a woman. These initiatives, if implemented, will undoubtedly increase women’s representation within the workplace.

Although law firms and companies have, in recent years, focused on recruitment processes to tackle the lack of women of women in top management roles, firms and companies alike are now increasingly identifying that more action is required to help women advance. Men and women progress through the workplace pipeline at differing rates and it is clear that gender prejudice and discrimination are an explanation for this. As far back as 2011, Catalyst’s report ‘The Myth of the Ideal Worker: Does Doing All the Right Things Really Get Women Ahead?’ outlined the idea of a ‘social penalty’ where women are more likely to be perceived negatively when asking for work promotions and salary increases, than their male counterparts. But thankfully, that is slowly starting to change with the growing influence of women in senior roles.

‘At SSA Mexico the legal function is part of the executive team, so we have the opportunity to advise the company on how to deal with gender inequality. In my team there are women lawyers (mothers and single). They know that they can count on my support when speaking of their development as women and lawyers,’ adds Romero.

As research continues to be conducted on the effects of diversity in firms – legal and otherwise – the business case is becoming increasingly hard to ignore, and charges of ‘meaningless box ticking’ hold less and less weight.

‘This is not just a moral obligation, but a sound business strategy,’ Barbelli surmises.

Diversity and business value

There is an established connection between gender diversity and a company’s bottom line profit. There is also clear connection between focussing on the gender pay gap and the war for attracting and retaining talent.

Regional trends Regulation concerning discrimination, harassment or sexual assault within the workplace differ from region to region in Latin America. However, ‘if a company has strong policies defining what is acceptable or not in regard to behaviour that may be considered discrimination or harassment in the workplace, this will help a lot to define the boundaries of what is tolerated or not from the employees,’ says Barbelli. Diageo implements a global ‘Dignity at work’ policy whereby every employee is individually responsible for demonstrating the highest standards of integrity in their behaviour, and harassing, sexually harassing or bullying, victimising, threatening or retaliating is not tolerated. Romero states that, ‘it is important to realise that although a company’s nationality can potentially help create a cascade effect in its corresponding subsidiaries in terms of policies, it does not necessarily mean that the company will completely follow that model in a local context, such as Mexico. For instance, we can see that a lot of Mexican locally-owned companies are currently putting a lot of effort in to inclusion, sometimes even more so than international ones. The latter are probably at a loss when trying to apply inclusion policies at a local level.’

Studies also suggest that one of the leading reasons women are deterred from pursuing leadership and partner roles stems from a lack of flexibility, and a lack of positive women role models and mentors.

Various businesses are now active concerning women employee advancement, and this often means going beyond statutory regulations. SSA Mexico, for example, operates ‘flex time’ working schemes and offers additional maternity days, which are not necessarily specified under Mexican law.

‘Uber has several employee resource groups, devoted to women, such as “Women of Uber” and “Parents at Uber” among others, which allow women to embrace themselves and improve every day in their working environment,’ says Monroy.

Mentorship can play an important role in development, with ‘a good role model inspiring you to be the greatest version of yourself, not only on the professional, but personal field too. We [women] are often seen as rivals, when we should be allies. The importance of advocating for women’s higher performance, mentoring, and establishing a support network, all help to erase damaging stereotypes,’ Monroy says.

Fatima Picoto, assistant general counsel and legal director Brazil at GlaxoSmithKline (GSK), also speaks of the value in mentorship for progressing in the workplace, arguing that it is a valuable tool for all employees, not solely women. ‘However, considering the different challenges that women tend to face, identifying someone who can support and sponsor you will have a huge impact,’ Picoto adds.

Pregnancy discrimination (despite being against the law) still exists within Latin America. According to the US Bureau of Democracy, Human Rights and Labour, ‘some employers sought sterilisation certificates from women job applicants or tried to avoid hiring women of childbearing age.’ In the past, it was known that some Latin American employers went so far as to dismiss women employees from their job after hearing of their pregnancies. Despite both actions being unlawful, these laws are seldom enforced across the region. Pregnancy discrimination is inherently linked to a society that has historically tended to view women as home makers and mothers, rather than individuals valued in a workplace.

González notes that Colombia’s 18 weeks of maternity leave is unsatisfactory. Ecopetrol has an extended maternity leave due to the benefits it provides to both parents and children (the World Health Organisation recommends at least six months breastfeeding): ‘This will mean more breastfeeding in Colombia. In the cities, breastfeeding is almost disappearing, but in rural areas, breastfeeding is very high. Working while breastfeeding can be very tough. At Ecopetrol, we still want people to be able to breastfeed, if that’s their choice. We have maternity spaces in our buildings for women to breastfeed, which is very important. But, there’s still a long way to go,’ adds González.

Barbelli adds that ‘achieving gender equality in the workplace requires fundamental changes to a range of working practices. It is of utmost importance to reinforce that men’s parental leave is key to women’s progression.’

The ‘trickle down’ effect

Many Latin American businesses have increasingly encountered demand from, mostly foreign, shareholders to implement equal pay for equal work, or at least conduct equal pay equity audits. According to the 2018 ‘Women in the Workplace’ report, women continue to remain considerably underrepresented in the workplace, and corporations and firms must alter their approach in the hiring and promotion of employees at both an entry and manager level ‘to make real progress.’

Nonetheless, international investment in Latin American conglomerates and corporate governance in global companies is having a progressive ‘trickle down’ influence via region-specific diversity and inclusion policies. Several international businesses with teams in Latin America have voluntarily begun to enforce reformist initiatives such as extended maternity leave, flexible working, and mentoring programmes. These initiatives are aimed to appeal to, engage with, and advance women in the workplace.

Romero notes that as a subsidiary of Carrix, which is headquartered in the US, SSA Mexico ‘offers additional benefits to me as a woman who is working in an executive position. At SSA Mexico, we have a great local executive team, which is on the same page as our US counterparts.’

Many Latin American corporations are now embracing and implementing initiatives that go far above the present national statutory guidelines. Barbelli states that Diageo, which is headquartered in London, England, is transparent and candid when it comes to discussing the progression of women with careers in legal with their panel law firms.

Diageo’s credentials concerning the betterment of women in the workplace, without the existence of formal legislation, is outstanding. Women at a senior level have grown from 22% in 2017 to a mammoth 50% in 2019 and 49% of employees in Brazil’s São Paulo office are women. From July 2019, Diageo has offered six months fully-paid parental leave to both men and women employees, without any existing statutory requirements.

Monroy raises how the development of technology has impacted the increase of diversity policies globally: ‘One of the perks of the digital era is having the possibility to be connected, and somehow close, as if we are all in the same place. Uber has a global policy on diversity and inclusion that applies worldwide, allowing diversity initiatives to take place everywhere without limitations like distance.’

Many Latin American corporations are now embracing and implementing initiatives that go far above the present national statutory guidelines.

There is now a strong movement whereby women and minority groups are gaining momentum in Latin America. Picoto observes that, ‘GSK has 51% of women in our total staff and 49% of our leadership positions are also occupied by women in Brazil offices.’

#MeToo #NiUnaMenos

The advent of the #MeToo movement (or #NiUnaMenos, ‘not one less’, the #MeToo equivalent term coined in Latin America) has created a sense of ‘familiarity’ across the board with all women in their respective geographical regions, while providing them with a platform to voice their own experiences and concerns.

Given the historical role that women have traditionally played in Colombia (and Latin America as a region), the movement has started conversations about what is appropriate in the workplace and what is not. González argues that ‘#MeToo made people think: “What is that?” “Why is that everywhere?” “Why is it on Twitter?” “Why is it in the press?” “What does #MeToo mean to me?”. I have heard a lot of conversations concerning #MeToo in Colombia – this is amazing because you’re seeing women, and vulnerable women, in Colombia talking about it, which means that they are realising that they do indeed have a voice and it’s not okay for those lines to be crossed.’

“Many Latin American corporations are now embracing and implementing initiatives that go far above the present national statutory guidelines.”

The #MeToo movement created an awareness of the difficult reality that many women were, and still are, facing within the workplace environment. After recounting her own experience of harassment, Monroy states that #MeToo has had a positive impact on the women of Latin America in that they are now able to voice their concerns. This helps other women to come forward. Monroy also describes how the #MeToo movement has had a direct influence on Latin America’s ‘cultural institution’ where women who were once afraid of speaking out now have the confidence to do so.

#MeToo is a spawned concept: despite not yet being on a legislative level, it has bought awareness to the topic in Latin America. González does however note that ‘the Colombian government is of course aware of the movement and it’s making them, along with companies, ask themselves “how is this impacting us?”.’

Monroy adds: ‘Don’t ever let society-established parameters define what you can do and how far you can get.’

The barriers that women face in the Latin American legal profession originate from their historically weak status within society: from traditional gender roles to the stereotypical cultural norms of Latin America as a region. This has led to the arguable continuation of work place sex discrimination across the region. We are seeing the remnants of the Latin American ‘cultural institution’ filter down into the way women in law are perceived, with research even suggesting that the gender pay gap primarily concerns gender representation rather than pay discrimination, naming the causes as existing bias and historical pay discrimination allowing for the continuation of the gender pay gap.

Discrimination due to socioeconomic status, sexual orientation and gender identity continues in schools, reproducing stereotypes and traditional roles for women, particularly in relation to their role within the household. This ‘cultural institution’ has not only been fed by men in powerful positions, such as politicians, but also by women themselves who believe that there are specifically established roles which men and women should play. This can clearly be seen with the lack of women in senior roles and the very existence of the gender pay gap.

However, Latin American firms and companies are now seeing more and more women question how executive corporate decisions are made. The current unstable political climate in several Latin American nations, supported by the arrival of the #MeToo movement, and the ‘trickle down’ effect of conglomerate businesses, have all encouraged women to contest their role within society and workplace. This intervention by multinational companies may even cue Latin American governments to begin to include gender-related issues in their own policy programmes.

But, only a handful of Latin American nations have made headway in making motherhood and employment harmonious. Despite the majority of Latin American countries legislating to require businesses who employ 20 or more women to establish day care facilities, these laws are rarely ever enforced. The same can be said about laws governing pregnancy discrimination. There is obviously a disconnection between Latin American legislation and general attitudes towards women in the workplace. Increased efforts are required on behalf of national governments to enforce inclusion and other diversity policies locally.

We are slowly starting to see cultural developments in Latin America that don’t necessarily conform to the traditional historical norms and this has been a direct result of the advancement of the lives of women themselves. This activity will help facilitate the ending of discriminatory obstacles that Latin American women in law must overcome. As Monroy points out, the stereotypes have ‘if anything, challenged us [women] to reach our best within the legal profession,’ and that the progress in Latin America in recent years is ‘extremely valuable because of its history and the rough path that women have been through to get to this point’. Although progress on this front may be gradual, the long established cultural perimeters of specific gender based roles are also slowly (but promisingly) being eradicated.

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Turning of the tide

Research continues to show the positive correlation between a diverse and inclusive workforce, and an organisation’s bottom line. In response, there has been a sharp increase in C-suites giving strategic priority to diversity and inclusion (D&I) challenges, and there has been a significant rise in roles dedicated to it. There has also been a significant increase in the number of initiatives and training sessions aimed not only at increasing minority representation, but also tackling the underlying culture, which frequently prohibits inclusion.

But many times, these initiatives don’t work – and sometimes achieve the opposite of what is intended. It is a sad fact that, despite the substantial number of programmes in place, equality isn’t improving. Or, at least, it isn’t improving at the pace one would hope. So, what elements need to be in place for a D&I initiative to work?

Through a series of in-depth conversations with senior in-house counsel across Latin America, GC magazine looks at some of the D&I challenges the Latin America legal industry faces, the common elements that make for successful D&I programmes, and offers advice for how to effect real change – now and in the future.

Legal industry challenges

The perception of the legal industry as – in the English phrase – ‘pale, male, and stale’, is not new and is, unfortunately, only too applicable to Latin America as well. ‘Latin American law firms are, generally, predominantly male and conservative environments; that is, not inclusive towards minorities,’ says Publicis Groupe’s LatAm regional legal director, Véronique Ramon Vialar-Déchelette. ‘This is perpetuated not only by a traditional men’s club perception of law firms, but also by women’s unconscious self-discrimination and behaviour.’

“It is easier and more comfortable to deal with people of the same gender. Because, historically, the majority of CEOs are men, it is easier for them to deal with other men.”

Women are also much more likely to adapt their behaviour to fit in to this environment. ‘Even today, in traditional law firms, many women do not dare to ask for salary increases or more senior positions, they are scared to compete “as men”, and frequently prefer to resign rather than to ask for flexible working arrangements when they have children,’ Vialar-Déchelette continues. ‘As a young lawyer in a law firm, I was often very careful regarding the way I used to dress (to avoid being considered too feminine or sexy), or the way I expressed myself about work situations or problems (to avoid being considered as less capable by my male colleagues). I also avoided being too friendly or empathetic in certain situations to avoid being considered too soft, too “woman-like”.’

Of course, the problem doesn’t only exist in law firms; those ingrained biases still exist and need to be challenged in corporates as well. ‘The biggest barrier is confirmation bias, rather than unconscious bias,’ says Valéria Camacho Martins Schmitke, Zurich’s LatAm regional general counsel. ‘It is easier and more comfortable to deal with people of the same gender. Because, historically, the majority of CEOs are men, it is easier for them to deal with other men. They go to have lunch together, they talk “man talk” – they care less about words and feeling comfortable with each other. Many times, this is not conscious, but it prevents many women being promoted or hired for key positions.’

Against this backdrop, effecting real change might seem impossible, but of course, it’s not. We are seeing a slow, positive evolution across the industry. Law firms and corporates alike are committing to strategies and programmes that go beyond lip service to embed D&I into their corporate DNA.

Positive reinforcement

One of the key elements in ensuring a D&I programme or initiative is successful is positive messaging and positive reinforcement. In their 2016 Harvard Business Review article, ‘Why Diversity Programs Fail’, authors Frank Dobbin and Alexandra Kalev assert that most executives ‘favor a classic command-and-control approach to diversity’, which often leads to extensive lists of dos and don’ts. This approach, though, ‘flies in the face of nearly everything we know about how to motivate people to make changes… You won’t get managers on board by blaming and shaming them with rules and re-education. We can’t motivate people by forcing them to get with the program and punishing them if they don’t.’

This is especially true of lawyers, who can often be resistant to the idea that they might behave unfairly. Bias is often linked to being unethical, and it is ingrained in lawyers that their job is to be advocates of justice. Where companies start to see positive results is when they employ tactics that do not focus on control. When messaging is positive, involvement is voluntary, and there is social accountability, willing participants will come forward.

“People need to be conscious of their biases, and conscious of their lack of diversity. And then you can move to implementation of D&I policies, pillars, and training.”

For a D&I strategy to be successful, it must go through three phases, says Schmitke. First, awareness; second, training and development; and third, monitoring. ‘People need to be conscious of their biases, and conscious of their lack of diversity. And then you can move to implementation of D&I policies, pillars, and training.’ Once those are in place, you can start to monitor the success of your various programmes.

Policy change

Law firms and corporates are seeing their biggest successes when specific initiatives go hand-in-hand with actual policy change, and where D&I policies ring true with the employees they most affect. Matt Krentz, who leads Boston Consulting Group’s diversity and leadership efforts, wrote in a recent Harvard Business Review article that women employees seek policies that allow them to balance career and family responsibilities, and in particular ‘practical tools that would help them progress, regardless of their family status: parental leave, appropriate healthcare coverage, childcare assistance, and flexibility programs’.

The law firm perspective: D&I at Willkie Farr & Gallagher LLP

At Willkie, we believe everyone benefits from a diverse workplace, and we are firmly committed to creating and maintaining a diverse environment by recruiting and retaining people of all backgrounds and cultural experiences.

The firm has several active committees that focus on the recruitment, retention, and promotion of our attorneys and, in particular, our women and diverse attorneys. These committees’ initiatives include expanding mentoring programmes, improving communication between partners and associates, recognising the contributions and accomplishments of our attorneys, offering insights from our clients on best practices for associates, and providing opportunities for attorneys to connect in informal settings.

Our Women’s Professional Development Committee (WPDC) was established more than a decade ago to offer professional development programmes and guidance to women attorneys. The WPDC is comprised of partners (including a member of the Executive Committee), counsel, and associates, and receive support from our chief human resources officer, chief marketing officer, chief diversity and inclusion officer, and associate director of professional development. The WPDC highlights the accomplishments of our female attorneys, providing opportunities for networking at the firm and with other successful women across industries, and ensure that they are positioned to assume leadership roles during their careers.

In 2019, Willkie also introduced a Parents Group for associates at the firm. The group provides a forum for attorneys to share strategies and ideas about parenting and work-life integration. The Parents Group is planning programming to hear from experts on topics ranging from financial planning for families, time management, and talking with children about sensitive topics.

Long-term goals

We are particularly committed to continuing and further developing strategies to D&I on a long-term basis, including in the leadership ranks. In fact, today, 40% of members of our Compensation Committee are diverse and 40% are women. In addition, of the ten members of our global Executive Committee, 20% are women and 10% are diverse. Moreover, seven women and five diverse partners serve as department or practice group chairs or co-chairs, five women and three diverse partners or counsel lead firm committees, and three diverse partners and two women serve as office managing partners. Finally, from 2016 to 2018, our partnership classes have averaged approximately 36% women, respectively, and of the thirteen global attorneys elected to the partnership in 2019, five (or 38%) are women and four (or 31%) are diverse.

Willkie is deeply committed to creating and maintaining an inclusive environment by recruiting and retaining people of all backgrounds and cultural experiences. To that end, in mid-2016, the chairs of the firm charged the chairs of the firm’s Diversity and Inclusion Committee, Professional Personnel Committee, and Women’s Professional Development Committee to create the firm’s Task Force on Retention and Inclusion. The task force meets on a bi-weekly basis to collaborate on initiatives designed to retain, develop, and promote attorneys, particularly with respect to diverse and women attorneys at the firm. It focuses on an array of topics, including mentoring, work assignments, integration, partner accountability, annual reviews, and inclusive programming and reports regularly to Willkie’s chairs on progress and initiatives.

Working with clients

We welcome opportunities to partner with clients on D&I initiatives. In May 2018, we partnered with a client to host a panel on the business case for D&I. The panel was moderated by our chief diversity and inclusion officer and consisted of several of the client’s top female executives. In February 2018 we partnered with a client to host a panel on diversity, as well as a networking event for diverse law students in Willkie’s Washington, D.C. office. In addition, we presented a CLE on LGBTQ immigration rights at a client’s offices during Pride Month 2019 and we are currently partnering with a client to mentor foster children aging out of care.

Additionally, we’ve hosted programming that facilitates relationships between our women and diverse associates and clients. As an example, we partnered with four clients and invited diverse associates to host a Build-a-Bike event in our New York office, resulting in the presentation of new bicycles to 50 underserved children. In addition, the WPDC hosted a client networking event on International Women’s Day with women attorneys and clients.

We are always happy to share ideas with clients interested in our diversity and inclusion efforts. We welcome meetings to discuss our initiatives and how we can help clients implement them.

by Maria-Leticia Ossa Daza

‘My company has a very active diversity and inclusion group, with many different focus areas, one of which is women,’ says Erica Barbagalo, Bayer’s legal, patent, and compliance lead. ‘The aim is to enhance women’s participation in the company and in leadership positions, but mainly to ensure equal opportunities for everyone, regardless of gender. As such, our company has extended maternity leave, and also an extended paternity leave policy. Both offer more than the statutory minimum. We also offer flexible working hours.’

Anabell González Nava, legal director, North Latin America division at Arcos Dorados, agrees: ‘We implemented a programme, “Red Mujeres”, aimed at increasing the equity with women in our company. The programme focusses on developing initiatives in which we see opportunities to increase the number of women in key roles within the company, which has included implementing policies that ensure women have equity in salaries and compensation at the same level as men with the same responsibility.’

Schmitke, who was the first local leader on Zurich’s ‘gender pillar’ (part of their overall D&I programme, which started four years ago), points to several policy changes that have helped the insurer to attract and retain female talent. This includes extended parental leave (for both women and men), a milk room, and changes in the hiring process. Policy change and diversity ‘occurs in the HR function,’ she says, but ‘inclusion has to occur through the entire company, with all employees.’

Mauricio Rosillo Rojas, corporate vice president at Bancolombia says that companies are increasingly developing more policies favouring inclusion: ‘At Bancolombia, we are working to transcend the corporate environment in order to impact social structures through a transformation in our organisational culture, strengthening the competences for women’s empowerment, and providing support from the financial business to give a boost to the economic capabilities of women. We have set up a committee in charge of gender equality, and Bancolombia has also signed an agreement with the United Nations to achieve Sustainable Development Goals.’

Training and culture change

When approached in a positive way, formal or informal training can change how employees interact with each other, and in essence, change a company’s culture for the better. ‘To really implement D&I in a company or law firm, all employees must be educated and trained. It is pointless having more women on the board and more minority people in the company if they do not feel respected and included by their peers,’ Schmitke says.

“It is pointless having more women on the board and more minority people in the company if they do not feel respected and included by their peers.”

‘We are part of a global organisation, and we are subject to a set of global training, one of which is called “Be Bold for Inclusion”,’ says Guillermo Castillo, chief compliance officer at AFP PlanVital. ‘The objectives of this programme are to build an understanding and commitment to making progress on diversity and inclusion, increase insight into the beliefs and behaviours that are the main barriers to inclusion, and to increase confidence in how to lead change and walk the talk. Unconscious bias can be a huge setback in creating a truly diverse and inclusive workplace. We need to understand that employees need to feel comfortable and empowered to discuss diversity and inclusion in order to be more productive.’

For Castillo, this has positively affected how his team works together: ‘The rule is that everyone gets a fair hearing and has an equal chance to give their opinion; everyone can speak out if they notice bias in the team; and, most importantly, offer an apology if they get it wrong. We can only really deal with bias if we’re honest and admit our mistakes.’

Training is also an essential ingredient at Bancolombia, where women represent 67% of the workforce, and 57% of senior positions. ‘We want to ease conversations about the experiences and day-to-day life of women in corporate environments to define what gender equality means, what decisions we have to take, the behaviours that need to change, and all the processes we must change,’ says Rosillo. ‘In our organisation, we run a programme called ‘Me la creo’ (I believe it), which is focussed on removing bias and stereotypes and promoting female empowerment. Under the initiative, we provide online and onsite training for every team member, as well as a toolkit for those in leadership positions.’

Creating spaces where employees are comfortable enough to call out the bias they see is important in moving things forward. Barbagalo points out that she has ‘often seen unconscious bias in action – for example in several situations of performance evaluation, or promotion discussions’.

‘Sometimes I have had to point out that the “aggressiveness” identified in a woman professional was the same “straightforwardness” valued in a male professional. I have been able to point out on several occasions the fact that women are generally not well versed in self-promotion. I have also been able to point out the bias in women themselves – they don’t believe in their own capabilities, and don’t apply for more senior positions.’

Training in the form of mentorship is one of the most valuable ways to educate and effect change. Every lawyer we interviewed for this publication pointed to mentorship as a key element in their success. A lack of formal mentoring initiatives is not a barrier, however, as Ana María Delgado, vice president of corporate affairs at Corona in Colombia, explains: ‘At Corona we have created and actively promote spaces for women to share their experiences with other women, and I have personally committed to mentoring several young women with great potential.’

Bancolombia has developed a training programme with CESA, a well-known training institution in Colombia that works with high-potential women for boards of directors. It also uses its ‘Me la creo’ initiative to invite women in high positions in other local and regional companies to join them in the mentoring process. ‘It is important to us that our mentors and mentees have a safe space for the mentorship to occur, and where there is a certain level of affinity, comfort, and familiarity between them,’ says Rosillo. ‘We provide several open spaces where top management executives (both women and men) and other relevant attendees address their experiences, obstacles, fears, prejudices, challenges, and misconceptions surrounding this subject. The dynamic of these events is meant to be sincere, open, and without a hidden agenda because the purpose is to start creating an environment where this subject is addressed by every employee within the organisation, to make the whole workplace a safe place to raise your hand and discuss pros and cons, and have an open discussion without feeling threatened or constrained.’

Be the change you want to see

Barbagalo believes it is vital to act as a catalyst to hear the challenges coming from other women and to ‘voice them to the leadership. It is important not to lose opportunities, and to point to all the things that could be different to improve inclusivity, no matter how hard or how challenging. If it is the right thing to do, then it has to be done.’

The legal industry as a whole has a long way to go before equity and equality are achieved. There needs to be more women in leadership positions – both in private practice and in-house: that is undeniable. What we are beginning to see though, is the turning of the tide. With each year, we see more representation, more women role models, and more organisations and law firms turning their words into very visible actions. While there may still be a lot of room for progress, it does mean that, from here, the only way is up.

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Breaking Latin America’s glass ceiling

Over recent decades, Latin America has seen significant change in the makeup of its labour market. An increase in women’s representation and participation in the workforce, and organisational and various governments’ strategies are evolving to incorporate practices and initiatives to manage, enhance, and promote the role of women in the workplace. Foreign investment into the region is having a positive impact as demonstrated by the increase in Latin American companies adopting HR policies that go beyond legal requirements. That said, many Latin American countries and corporates still fall well short when it comes to opportunities for women and their economic participation. The gender pay gap remains significant. And despite the existence of legislation prohibiting gender discrimination, it still happens on a daily basis.

Why, in the 21st century, is this the case and how can meaningful change happen? Unfortunately, there is no single, silver-bullet cure for the gender disparity prevalent across the Latin America region. Change comes slowly, through education, by having uncomfortable but necessary conversations, and through the subtle shift of centuries-old biases that have kept one gender subordinate to another.

In a series of exclusive interviews, GC magazine speaks to senior and general counsel from across Latin America (both women and men) about how the more traditional landscape of the region plays a large role in how women are perceived in the workplace, and how they, along with their colleagues and companies, are slowly changing the experience for women lawyers across the region – but also for women in general.

Chauvinist society

For women working in Latin America’s legal industry (both in private practice and in-house), the challenge of getting ahead, of being ‘heard’, and respected, is two-fold. The legal industry is, and has long been, dominated by men, but that is hardly surprising when seen through the lens of a still largely traditional societal view that men work, and women stay at home. Anabell González Nava, legal director, North Latin America division at Arcos Dorados, says that even though organisations are making important diversity and inclusion improvements, ‘the culture of a society plays a key role in the habits and behaviours of men and women, and consequently of companies.’

‘Traditional gender roles are still very strong and create real and persistent inequalities among men and women in the workplace and in general in Latin American society,’ agrees Mexico-based Véronique Ramon Vialar-Déchelette, LatAm regional legal director at Publicis Groupe.

“Traditional gender roles are still very strong and create real and persistent inequalities among men and women in the workplace and in general in Latin American society.”

Valéria Camacho Martins Schmitke, LatAm regional general counsel at Zurich in Brazil, goes further. ‘Women pay a high personal price for equality with men. Some countries more, others less – but all are very chauvinist societies, and men still believe that taking care of children is a woman’s job. They also feel less empowered if their wives make more money than them. They expect women to be home when they arrive, and to prepare dinner. Women can work, but more as a hobby.’

These entrenched views have a serious impact on the industry, and how it is perceived. As Andrea Camargo, director of international legal affairs at Odinsa S.A. states in her profile interview in this publication, ‘It is a paradox that the profession in charge of providing justice is so full of inequalities.’

Despite these challenges, change – although slow – is happening. In interviews, several factors were highlighted as having a direct impact on the region: (i) a new willingness to discuss gender diversity and inclusion; (ii) a concerted effort from leaders to address challenges head-on in meaningful and practical ways, and to lead by example; (iii) the increase in men putting their heads above the parapet to argue that gender diversity benefits everyone, not just women; and (iv) the growth of multinationals, with more advanced diversity policies, establishing subsidiaries in the region.

On gender equality issues, Ana María Delgado, the Colombia-based vice president of corporate affairs at Corona, believes her country (which the World Economic Forum ranked as 40 out of 149 countries in its 2018 Global Gender Gap Report) has been evolving positively and that the participation of women in the workforce, as well as in leadership positions, has increased significantly over time. ‘Although there is still a long way to go, I have seen an increased willingness to openly discuss these types of issues,’ she says.

A recent country survey of Chilean in-house counsel showed that only 25% of general counsel positions were held by women. However, ‘statistics also show an increase in professional women’s careers with far more successful female roles and role models,’ says Guillermo Castillo, chief compliance officer at AFP PlanVital. While women hold only a small percentage of board seats and other influential positions, the pipeline of future leaders is starting to swell.

Zurich’s Schmitke is also seeing progress at a societal level, which will, in turn, have an impact on the Brazilian workforce: ‘I have seen men participating more in family tasks, with some men following their wives to another country because of her career. I believe that with every generation, we get closer to equality.’

Although she believes that Latin America is evolving more slowly than North American and European countries, Vialar-Déchelette says the region is walking the same path. ‘Private and public conversations regarding gender and equality are common, but quite recent,’ she told us. ‘These traditional prejudices need to be properly, widely, and honestly addressed and tackled so that public and corporate leaders understand their stereotypes and are willing to act accordingly to change.’

Tone from the top

The importance of strong leadership in tackling gender equality is a common theme. In her article, ‘How to get more men to take gender balance seriously’, for the Harvard Business Review (November 2019), Avivah Wittenberg-Cox argues that ‘it isn’t enough for the CEO to say gender balance is important once a year in a management conference. Nor even to set draconian and highly publicized targets… Until leaders are convinced that gender balance is a strategic lever for the business and become authentically and articulately convincing to their colleagues about why that is, balance remains a politically correct sideline.’

The 2016/2017 McKinsey report, Reinventing the workplace for greater gender diversity, supports the idea that real change must be led from the top. For women in the workplace to have better opportunities, to train and work in skilled and better-paying jobs, and to work in environments that support work-life balance and reshape social attitudes, organisations must challenge their fundamental and prevailing leadership styles and thoroughly re-evaluate traditional performance models. This is something that is particularly difficult for the legal industry, where the traditional structures and performance measures – such as billable hours as the primary measure of success – are inherently biased towards men.

The report goes on to say that organisations with a strong CEO and senior leadership commitment to gender diversity (i.e. those who place gender diversity as one of their top three strategic priorities) are twice as likely to integrate gender diversity successfully through all levels of their organisation. However, the report also shows that most organisations are falling short in transforming that commitment into a truly inclusive working environment, with many employees citing that they often don’t see words backed up by action, nor do they feel confident calling out gender bias when they see it.

Authenticity and ‘walking the talk’ are, therefore, key. ‘There are lots of good intentions, but not a real, open-minded approach to challenge the existing establishment,’ says Erica Barbagalo, legal, patent, and compliance lead at Bayer in Brazil. ‘The tone has to come from the top. The company needs its leaders engaged and acting as role models to succeed in promoting diversity and inclusion. It is not easy: changing the culture to break biases causes discomfort, and only courageous companies and leaders can bear that.’

Sometimes, it’s small gestures that have the largest impact as Barbagalo explains: ‘At a company event for hundreds of employees, the majority of them men, a guest speaker made a light joke about women. After his speech was over, one male leader got on the stage and explicitly disqualified the statement, making it very clear that this behaviour was not accepted in the company. He apologised for the insensitivity of the speaker. Needless to say, that speaker was banned from future events. Nobody, though, remembers the joke. But everyone remembers, to this day, the leader’s message.’

Diversity is a men’s issue

What came through loud and clear in all our interviews for this publication was the need to redefine gender diversity and balance as not solely the concern of women. For far too long, it has been accepted that fixing sexism is women’s work. But, actually, this is work that everyone must be a part of, because real gender balance has a positive effect for both men and women (see Michael Bruce’s interview in this publication for more on that topic). Wittenberg-Cox’s article states it clearly: ‘Companies whose balancing initiatives involve men are more than three times more effective than those focussing only on women.’

Castillo concurs: ‘Men’s partnership is required in addressing the issues that hinder women, including structural barriers and discriminatory practices that prevent women from participating on boards and receiving equal pay. Male executives can help lead the charge with women in enacting internal regulation that promotes benefits for women and men equally, and repealing policies that discriminate and limit women’s opportunities.’

Vialar-Déchelette believes the support of men is absolutely vital for change to occur: ‘Latin America is traditional regarding gender roles, and women on their own are making slow progress; thus the proactive support of men is necessary as a starting point. These are not just “women’s issues”; they are issues for the whole of society.’

What is key is how companies go about engaging with men on the subject of gender balance and equality to ensure maximum commitment. While this might be difficult for many women to read, Wittenberg-Cox’s advice is, essentially, to present the argument using ‘existing male-dominated hierarchies.’ In short, making the case for diversity based on moral grounds rarely has the desired effect. Instead, frame diversity as a business issue; make gender diversity and balance personal, measurable, and accountable. Position and normalise the issue as a business skill. Make male support the norm, rather than the exception. When the link between gender balance and positive business results is clear and explicit, men are more likely to engage with and support it.

“Position and normalise the issue as a business skill. Make male support the norm, rather than the exception.”

Another key factor is for more men to mentor women, and to be open to recognising their own biases (this applies equally to men and to women). Many of the women we interviewed across this publication spoke of male mentors whose support had a significant impact on their careers. ‘I have been very lucky to have great male mentors through my professional life. They have offered me support in changing career paths, in taking risks, and following my dreams,’ Delgado says. ‘Those decisions have helped shape and define who I am today, and I am very grateful.’

Vialar-Déchelette echoes the importance of male mentors: ‘I was very fortunate to have a modern and supportive chief when I was first employed as a paralegal in a major firm. He repeatedly said that if I wanted power, I just had to take it and not to wait for someone to give it to me. He constantly promoted me over the years, in discrete but effective ways, by teaching the profession and encouraging me to take huge responsibilities without questioning my capabilities as a young lawyer, as a foreigner, or as a woman. In fact, in a male-driven industry and firm, gender has never been a subject between us. He acted with me as if gender didn’t exist. I believe that this kind of mentoring over the years gave me the confidence to drive my career as I have wanted, without fear or self-limitation.’

International influence

There are many reasons attributed to why, in Latin America, there is a growing openness to discuss gender diversity challenges, why more leaders are waking up to the power of a diverse and gender balanced workforce, and why more and more men are beginning to vocally and actively support women’s advancement in the workplace. One of these is, of course, the growth of multinational companies, headquartered overseas, which are now opening subsidiaries across the length and breadth of Latin America.

Many of these multinationals go far beyond local legislative requirements (particularly on the gender pay gap, where legislation in some countries is still slow to come), and are putting in place progressive policies, particularly in regard to flexible working arrangements, maternity and paternity leave, and mentorship programmes. These companies are consistently outperforming their peers, particularly in their ability to attract and retain top talent. The policies are seen as reflecting a commitment to equality and serve as an indicator, to current and future employees, of a more inclusive culture.

Barbagalo says that ‘countries such as the US and some European countries have been discussing equality long before Latin American countries, and by establishing their subsidiaries in the region, these multinationals are able to promote their culture and also set examples – some have women CEOs or other high-ranking women leaders. There are, of course, local companies with high levels of awareness and actions towards gender equality and diversity, but they are the exception rather than the rule.’

And while, currently, it may seem that Latin America-domiciled companies are not as advanced as their overseas competitors when it comes to diversity, progress is being made. Many of the lawyers interviewed can point to success stories thanks to increased awareness and understanding of gender balance.

‘In many of the countries in which we operate, we have seen an increase in women in leadership positions,’ explains Nava from Arcos Dorados’ headquarters in Uruguay). ‘We have three women market directors in Martinique, Puerto Rico and Venezuela. We also have a woman sitting on our board, who is the vice president responsible for government relations.’

While these steps may seem small, they are significant, and show that the tide is certainly turning.

Michelle Obama, former First Lady of the United States, once said: ‘No country can ever truly flourish if it stifles the potential of its women and deprives itself of the contributions of half its citizens.’ And what is abundantly clear throughout this publication is that Latin America is not short on talented, strong, passionate, and determined women lawyers who have begun to pave the way for other women to follow. Despite the still patriarchal and entrenched views of women’s place in the world, these women are breaking glass ceilings. They have gone beyond merely boosting the diversity statistics of their organisations to prove that the acceptance and inclusion of women in the workforce – at all levels – has a significant positive impact, both on business and society.

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A red light for red tape?

‘Bureaucracy is the death of any achievement.’ – Albert Einstein

Or is it? Perhaps ask a Brazilian – they tend to know a thing or two about bureaucracy.

‘It’s a very specific problem we have here in Brazil because we are a huge country – we have over 5,000 cities and each one of these cities has at least three different institutions from which it is possible to get different documents. Institutions like the city hall, the labour department, the justice department, the environment department, or the federal government,’ says Pedro Roso, CEO and co-founder of Docket, a legal tech start-up.

And the legal sector itself, says lawyer and tech entrepreneur Bruno Feigelson, is as swollen and filled with complexity as it could be. According to Feigelson, Brazil spends 2% of its GDP on its legal system, and there are currently 100 million ongoing lawsuits in the country.

‘If you compare that with our population – we have 200 million people – we have one lawsuit per person, because you have the plaintiff and also the defendant,’ he explains.

Discontent? Disaggregate

Felipe Monteiro is professor of strategy at INSEAD, and is also the academic director of the Global Talent Competitiveness Index, which identifies the world’s most talent-competitive countries. This has led him to look at how companies and sectors around the world are being transformed.

‘I remember talking to the CEO of a very large, fast-moving consumer goods company in Brazil. This is a very marketing intensive company, and the CEO said: “Brazil is the only country in the world where we have more lawyers than marketing people.”’

All this means one thing for start-ups armed with the technology to bat away reams of paperwork and administration: opportunity.

‘If we go to the legal sector, what’s happening is that whereas one company used to have a full range of activities, a lot of start-ups are coming and trying to break down the full service into smaller parts,’ explains Monteiro.

‘If you think about utilities, BT Group had the full service but now a lot of start-ups are saying “Maybe we can use the infrastructure of BT but start offering different things.” You can think about this as different technologies, but I think most of all, it is not about that. It is that you as a person now have different needs. Maybe an incumbent used to give you all those options, but now independent players can use the infrastructure and offer you different paths, maybe in a more efficient and effective way.’

One company aiming to apply this model to in-house legal teams and unbundle internal processes is ProJuris, a start-up currently enjoying its tenth anniversary.

‘There are more than 1.2 million lawyers in Brazil, which has led to one lawyer for every 190 Brazilian citizens,’ says digital marketing manager Tiago Fachini.

‘we have huge potential, because we have opportunities with sectors inside of the legal system.’

‘Our purpose is to eliminate inefficiencies of the legal routine. We are working with AI in several ways to help lawyers to be more efficient and happy. We are also working with automation and some very neat integrations.’

The company’s SaaS (software as a service) product automates repetitive activities, like creating or updating cases, creating documents, or distributing and managing team tasks. ProJuris also offers software to corporate legal teams designed to improve productivity of the teams who work with contracts, documents, signatures and requests from internal clients. It claims to have more than 1,800 customers, with over 20,000 lawyers using ProJuris every day.

Another is Docket. Founded in 2016, the self-proclaimed ‘document shop’ has developed a platform on which clients – for example, the legal departments of large companies – can manage documentation, allowing faster access to documents, reduced friction with public services and AI-enabled data analysis. Last year, the company participated in Google’s Launchpad accelerator programme.

‘The size of this market is huge. We used to operate without any technology and now we are looking for how technology could solve a lot of problems, through automation or AI and, with this market size, with this very complex system and with technology, I think we have the recipe to create a lot of start-ups in this market,’ says Roso.

‘In Brazil, this year [2019] was the year of fintechs. But I think the legal techs in the next two or three years will be the hype of the year, because we have a lot of solutions emerging. And we have huge potential, because we have opportunities with sectors inside of the legal system.’

Innovation by association

Someone who certainly believes in the future of legal techs is Bruno Feigelson. A lawyer himself, he founded his own legal tech company in 2016, Sem Processo, which aims to connect lawyers and companies in order to resolve and settle the vast numbers of matters that end up before Brazil’s legal system more easily.

But he didn’t stop there. The following year, together with legal departments and law firms, Feigelson – who also runs a law firm, a law school and a legal tech accelerator – created the Brazilian Association of Lawtechs and legalTechs, known as AB2L.

‘At that moment, we had some tech companies in Brazil, but we didn’t have the main legal tech or law tech – it was something like a desert in Brazil for technology. We started the association with just two companies and, nowadays, we have 200 legal techs in Brazil in the association,’ he explains.

Feigelson had observed an increasing interest in technology to assist in legal processes such as contract automation and litigation management and analysis, and he predicted this would evolve beyond the implementation of tech solutions developed in-house to the use of external platforms and processes that would become available on the market. And he is confident that he was right.

‘We have a lot of potential. It’s very interesting because the biggest change is not just the technology – it’s the change of mindset,’ he says.

‘Lawyers are now looking to find a newer way and a better way to change the field. It’s interesting to compare AB2L two years ago and now. Now we have solutions for tax, for compliance and for data protection.’

One particular area of innovation observed by Feigelson is visual law – using design to illustrate legal documents.

‘The biggest lawsuit in Brazil is one in which the state of Brazil is suing certain companies. This lawsuit could be worth billions and billions of dollars. We are drawing all the petitions in order to help the judge show the court what has happened. Three years ago it was impossible to imagine that you would be in a meeting with a lawyer and a designer to improve understanding for the client,’ he says.

‘the biggest change is not just the technology – it’s the change of mindset.’

But, he concedes, this has not yet translated to a huge number of legal tech companies in Brazil currently.

Growing pains

Roso believes that coming up with an idea for a start-up in the legal sector, particularly in Brazil, necessitates first-hand experience of the market. Docket itself was created following the challenges experienced by one of the co-founders while working for a real estate company.

‘You need to study a lot to create a start-up to solve these processes. It’s different to thinking “Oh, let’s think of something to create.” I think for legal tech you need to experience this pain, you must understand how to solve it. It’s not too simple because we don’t have a standard here,’ he says.

Put simply, however, Brazil is not the most conducive environment in which to open up a business. Placed 138th out of 190 countries included in the World Bank’s Doing Business 2020 rankings for starting a business, the country scored 124th for ease of doing business overall (figures taken from World Bank. 2020. Doing Business 2020. Washington, DC: World Bank. DOI:10.1596/978-1-4648-1440-2. License: Creative Commons Attribution CC BY 3.0 IGO).

‘The complexity to open a business, get clients, handle these physical problems that we have to understand our taxes, to pay our taxes – I think it’s not so good yet,’ says Roso.

For the legal sector, there are specific problems, and the very bureaucracy that has created a huge potential market for legal technology platforms also creates hurdles.

‘We have the problem of dealing with hundreds of different courts around the country, each one with its own system. There are more than 100,000 open cases in the Brazilian legal system, so in this decentralised and unstructured scenario, most legal techs fail to obtain and use public information,’ says Fachini.

The Doing Business website identifies some business reforms made by the governments in recent years that have smoothed the way for those looking to start a business. These include speeding up business registration, lowering the cost of the digital certificate, and establishing online systems for company registration, licensing and employment notifications for Rio de Janeiro and São Paulo. The government also launched an online portal for business licences in Rio de Janeiro.

‘I think this government, and other governments, are concerned with being more friendly with entrepreneurs. As a result, we have had laws pass through our congress that make it easier to be entrepreneurs,’ says Roso.

‘We are at the beginning of this agenda. It’s a long ride – we have a lot of things to do, but we are starting, so this is something to celebrate: we start this process here. I think the support from the government is very important because they could transform this whole scenario and bring more investment to our country and generate more jobs. Everyone has some kind of benefit from that.’

A new (ad)venture

The biggest problem, according to Feigelson, is a lack of investment relative to markets such as the US or the UK.

However, the tide may be beginning to turn in the venture capital stakes. In 2019, SoftBank Group launched a $5bn technology innovation fund focused on Latin America. In May 2019, Crunchbase reported that venture funding in Brazil reached $1.3bn in 2018, up from $859m in 2017 and $279m in 2016, according to figures taken from LAVCA, the Association for Private Capital Investment in Latin America.

‘[Venture capital funds] are more present in Latam, I think, compared to three or four years ago – when it was completely different,’ says Roso.

Perhaps a cautious approach to investment among incumbents is prudent.

Closer to home, in the legal sector, encouragement for legal tech is not as evolved as it could be, says Feigelson, whether through direct investment or by launching incubator and accelerator programmes. Early adopters are often thin on the ground, and although support is there in theory, the money is not always where the mouths are.

‘The law firms in Brazil, they don’t invest a lot of money in law techs. They don’t have a lot of money, because in Brazil we have a closed system in law firms. It’s impossible to invite a partner that is not a lawyer to introduce to this society,’ he explains.

‘They believe, but they don’t believe in this revolution. It’s very common that I’m going to a conference and talking about international big law and the companies that they are creating. But the Brazilian law firms, they are not doing the same.’

Adds Fachini: ‘Sometimes, our Brazilian bar association (called the OAB) puts some barriers in the technology way, trying to keep the old patterns instead of helping us to develop faster to help even more people.’

Perhaps a cautious approach to investment among incumbents is prudent, however. To throw a potential spanner into the trend among law firms in regions like the US and Europe to launch innovation labs, Monteiro believes that the benefits to incumbents of incubating and/or accelerating start-ups are not always clear.

‘It’s not even a billion-dollar question but a trillion-dollar question: to what extent incumbents will ever be able to integrate whatever those start-ups are doing,’ he says.

‘Imagine I’m a big company, let’s say a bank, and I start investing in fintechs – I have all those fintechs in my lab. To what extent will I be able to change the bank, or will I just be an investor in those new things? It’s not trivial, because the nature of the change is so much more profound than the previous technological changes.’

Monteiro is not speaking specifically about the legal sector, of course, but of a general response to possible technological disruption across the board.

‘I think we have a tendency of thinking that this idea of open innovation and accessing business technologies is more about “How do I connect with start-ups?” But actually, a lot of my feedback about it is that it is not about the connection itself, it’s more about “How do you bring those things home? How do you transform the mothership?”’

But Feigelson has observed the tech revolution (and, perhaps, cultural invasion) continuing apace – across all sectors in Brazil, even legal. And in-house teams, with their proximity to trends across the corporate ecosystem, are well-placed to benefit.

‘In Brazil, if you are a bank you are looking for fintech, if you are a health company you are looking for health tech – all these companies are living a special moment. We have a big movement in Brazil against wearing a tie, nobody wants to wear ties, they want to be modern, they want to be like Steve Jobs,’ he says.

‘The reconnection of the legal world with this new reality, of the fourth industrial revolution, it’s easier for legal departments than the law firms.’

In-house leading the way

‘there is no way back – technology will only be more and more relevant to the legal market.’

‘[Incumbent legal service providers] are starting to realise that technology is a friend which can help them to be more effective and efficient in their daily activities. In the beginning, there were misunderstandings about how technology would and could help, but now everyone is looking for tools to help legal routine,’ says Fachini.

But, in many cases, according to Feigelson, customers are coming from the in-house sector, and not external firms: ‘They take the money that was for the law firms and they put it into legal techs.’

At Docket, most clients are also tech-curious in-house departments. Their concerns are practical rather than innovation-related, in Roso’s view.

‘We have 130 people here, we have a huge team, and we always talk with huge clients, so we need to be prepared to absorb these huge clients. I think their consideration, at the end of the day, it’s not about [whether we are] a start-up, but if we will have the necessary structure to handle them. I think, in most cases, they are very optimistic about how technology could transform the legal department and reduce these operational jobs without any kind of value,’ says Roso.

The Brazilian general counsel GC spoke to as part of the research for this report were bullish about the potential of technology to improve in-house life, and took a pragmatic approach to the adoption of innovative tools – whether they be those developed specifically for their own departments, customised off-the-shelf software, or services procured from third-party tech providers.

‘Legal tech is the future; it is only a matter of time before they can prove what they are using is consistent and sustainable. I think that there is no way back – technology will only be more and more relevant to the legal market,’ says Rafael Dantas, director of legal and compliance in Latin America for General Mills.

For some, the challenges around technology revolve not only around selecting system tools likely to be effective, but identifying the best method of procurement. General counsel must find the right momentum and timing between developing them internally (balanced with other priorities within companies) and hiring third-party developers. But, the need for appropriate system tools is widely accepted.

Is disruption coming?

Conditions are certainly favourable in Latin America – and in Brazil specifically, says Monteiro.

‘When you are a developing market, one potential application of technology is offering leapfrogging opportunities. Remember that in a number of these markets they have nothing, and if they adopt the most recent technology, they will basically skip prior stages of technological development. The most well-known case was in Africa with M-Pesa in Kenya where, 10-15 years ago, most people didn’t have a bank account. M-Pesa started offering mobile payments on very simple phones. Many Kenyans don’t have a formal bank account and maybe they never will, because a lot of people skipped and started having a mobile wallet in their cell phones,’ he says.

‘There are a number of examples like this in Latin America. If you want to extrapolate a little and think about the legal sector, there are maybe two points to consider: one, is to imagine that some companies, and some of those start-ups, will never engage with formal legal services as we know them now – maybe they will skip that and they will start engaging with new ways of getting legal services; two, is the level of complexity of the Brazilian legal system – it is so complex, which means that you have a lot of lawyers and that’s why the legal tech sector in Brazil is thriving – because people know that there will be ways of disrupting that market and offering many different things.’

Feigelson certainly knows, and perhaps his enthusiasm – and that of the legal techs, like Docket, which is an AB2L member – will continue to be catching.

‘We believe a lot that we have the numbers and we have the anthropological conditions to make the biggest evolution in technology in Brazil. I work with researchers in Brazil, I work with law techs from other countries: people are coming to Brazil and trying to understand what’s happening here. I think we have a lot of change.’

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Growing up: The rising importance of technology

When GC surveyed and interviewed a host of general counsel at some of the biggest corporate players in Latin America, what emerged was a variety of approaches to the question of how best to incorporate technology into the daily life of the in-house legal department. But whether the response was a wholehearted embrace, a cautious side glance, or something in between, what many agreed on was the fact that technology has made a significant advance into legal teams over the last five years – and that advance is set to continue.

‘In my three years at Bayer, I’ve seen the introduction of many systems. For example, a new tool was just introduced this year for contracts and Prime for data privacy was introduced last year. Comcat (a compliance tool) was in diapers three years ago, but it has gained significant importance around how we report on compliance cases. In my three-year period, it has moved very much towards a technology-based or technology-oriented profession,’ says Catalina Morales, data privacy manager for Central America and Caribbean at Bayer in Costa Rica, currently in an assignment based in St. Louis, US.

Bayer has taken a global approach, with the Central America region assimilating accordingly. But general counsel at Archer Daniels Midland Brazil, Patricia Ulian, has added personal momentum to the tech wave.

‘I myself am a person that really thinks that technology is important, because you really can replace operational work that I think is not a priority for senior lawyers – I try to prioritise the strategic issues and benchmarking, in order to check the other companies and really understand what we have in the market. I try to improve and, if this is the case, we invest externally,’ she says.

‘Five years ago, information control was totally dependent on human action. In-house lawyers were much more operational and less strategic, as they had to dedicate their time to fill in Excel sheets and other reports. The margin of error was high, the time of responses was longer – and those aspects directly influenced the quality of the decision-making process of the company.’

A race to technology?

In this spirit of striving to minimise administrative tasks, the GCs we interviewed for this report have much in common with their counterparts around the world, who have bid farewell to the paper-based days of yore. But some feel that parts of Latin America have further to go to catch up with peers in certain jurisdictions. Selim Erdil Guvener, general counsel at the International Potato Center in Peru, is one such person, having moved to Latin America six years ago after a career that has taken him to London, Istanbul, Nairobi and Benin.

‘I think the legal profession in Peru is behind the US and Western Europe in terms of adopting new technology. Here, I can still only see technology use at the word processing and some systems levels. But lawyers will need to adapt quickly, as digital transformation is picking up speed, especially in the government,’ he says.

96% of respondents reported using specialised legal tech within their departments.

Of course, in a region the size of Latin America – including 20 countries for the purposes of our research – and with the unique character of each country, it is impossible to draw conclusions that are too general.

‘Latin America consists of many nations,’ says Ulian. ‘For example, you’ve got both Mexico and Bolivia – these are two totally different countries with different levels of development. When you think of Mexico, there are many differences in culture, and you must also consider the dependency on the US. You also have Brazil, which speaks Portuguese, whilst all other Latin American nations speak Spanish. You have many differences, but Brazil is a pioneer in this area compared to other Latin American countries.’

Vastly differing economical, commercial, societal, and geographical landscapes across the numerous countries making up the Latin American region have resulted in similarly different priorities for the governments governing those countries. Regulatory differences therefore exist across the region and, in some cases, technology regulation might not be the most pressing or significant issue for the relevant country regulators and the legislature.

Despite the inherent differences between the various countries that comprise the Latin America region the counsel who participated in the quantitative aspect of our research were near unanimous in their agreement that technology had become an essential component of any in-house lawyer’s role. Indeed, 96% of respondents reported using specialised legal tech within their departments, with only 11% saying that the use of technology within their legal department hadn’t changed in the last five years.

Client-driven change

It’s hardly controversial to posit that technology is changing the legal profession. Afterall, the general counsel who took part in the research for this report were near unanimous, at 94%, in saying that technology had been disruptive in the past five years. All but two of the 140 surveyed predicted further disruption to arise in the coming five years.

For providers of external legal services, the prospect of change and disruption will be cause for concern in some corners of the profession.

But it needn’t be.

Since its inception in 2002, World Services Group has made technology a core component of its network offering, an ethos that has extended to its member firms around the world.

‘Technology is at the core of the administrative activities within our firm, but also part of the essence of the legal services that we provide to our clients,’ says Fabio Luiz Barboza Pereira, partner at Veirano Advogados – the World Services Group member for Brazil.

But the actions of some firms operating in insolation isn’t going to be sufficient to move the needle a meaningful amount. Rather, it will require a collective effort from all of the profession in order to achieve real progress. It is abundantly evident from the report that in-house counsel are embodying the evolution that they want to see, but they can’t be expected to assume all of the responsibility.‘At Veirano, we firmly believe that our legal analysis is enhanced – and a more time efficient process – with the support of technology. To this end, we have hired developers and implemented custom platforms for timesheet accounting, pricing, document filing and performance valuations, as well as almost all administrative activities. This gives both associates and partners alike more time to focus on core business activities, which is of course the provision of top-quality legal services.’

‘The legal profession needs guidance from true technology experts if we are to drive a digital transformation. Lawyers can be reluctant to embrace technology. We are seeing legal tech companies and multinational law firms taking the first steps towards a digital revolution, but it will require a real effort to convince the profession of the benefits and potential of legal tech,’ says Victor Manual Barajas Barrera, partner at Basham, Ringe y Correa, SC – the World Services Group member firm for Mexico.

‘At Basham, we will be conducting a digital transformation process together with our technology partners, will a host of changes expected to be implemented this year.’

At present, it appears that the pressures are beginning to mount, if only on the margins. At 97%, almost all respondents said that a firm staying abreast of new technologies was at least somewhat of an important consideration to them. Interestingly though, that hadn’t yet translated into a criterion on which firms were explicitly judged, with only 35% of respondents saying that the question had arisen when undertaking a panel review. While firms may not yet be feeling the impact of a lack of innovation on their bottom line, the responses compiled suggest that moment may not be far away.

If in-house legal departments are going to be the ones to spearhead technological change in the profession, then the rest of the legal community must be prepared to join them, or risk being left behind. By the time clients begin voting with their business, it will already be too late.

General counsel report benefits across several areas of the in-house team. Increased efficiency has been a major boon, with technology enabling a more precise focus on aspects of work that are deserving of significant time and energy, while straightforward administration work can reliably be automated and left to tech tools. Improved organisation has been another advantage, particularly an enhanced ability to keep track of and access information. The possibility of detailed and speedy data extraction extends the scope of teams and their broader organisations to retrieve information to employ in internal analysis.

Says Ulian: ‘I believe legal technology is already helping us to work smarter and can make in-house teams more efficient, improve knowledge retention, accelerate professional development and reduce potential burnout.’

Making connections

Some general counsel stressed the importance of technology in bringing closeness among parties, be they internal, external, or even customers.

‘I think the future is about AI and connection, because as much as we can be connected now, we cannot connect things and people – AI helps with this. When you can make out as many links as you can between people and information – for example, you can now make a complete profile on and of anyone… This is powerful because I can have a conversation with them and convince them of something, because essentially, I know them now,’ Ulian explains.

‘We can see this when purchasing items on Amazon: when you buy a product, Amazon offers you other related products. This is embryonic and I think the future will be more like that. The more connected we are with information, the more connected we are with people.’

But on a more prosaic level, the existence of technology can foster a greater understanding between legal department and business partner.

‘We are now a lot closer to our clients, thanks to technology. Not only from a telecommunications and technology point of view, but also because we’re able to follow their work and provide support almost instantly. Now that we have significant information technology support, we can understand what the client’s business actually is,’ says Guvener.

‘Let me give you an example: we have a monitoring and evaluation platform where we gather all the information – this is not necessarily legal information. But, we do have the key performance indicators in there. We can look at it and identify the key challenges colleagues are facing. We can see if there is anything related to legal challenges. Therefore, we can pre-empt project implementation challenges before they become real bottlenecks for projects. The ability to work on legal documents in real time is a real big change.’

The human touch

Much discussion on the topic of technology centres on the issue of how much professionals have to fear from technological advancement. But many of the general counsel we spoke to were relaxed about any potential ‘threat’ posed by machines.

‘Technology is not here to replace a lawyer’s work, but rather to enhance it. There is a human factor that lawyers provide – interpretations, judgement, decisions, solutions and knowledge of legal systems and a particular business situation – that need to be part of the entire law system, that is why technology and human knowledge are complementary. On the other hand, if a lawyer keeps up with the different technological changes and embraces new technologies, the exercise of the legal profession will be improved. In fact, I believe you will become a better professional,’ says Juan Pablo Ovalle Arana, country counsel at IBM Colombia.

Rather than replacing lawyers, those we surveyed for this report were strongly in agreement that technology was a tool to be used to enhance the outcomes provided by lawyers, not replace them. 66% said that technology could enhance outcomes for in-house departments to a great extent, with a further 31% agreeing but to a moderate degree. Only 3% of respondents had a divergent opinion.

‘Technology is not here to replace a lawyer’s work, but rather to enhance it.’

There was a sense among general counsel in the region that the increasing use of technology tools was unlikely to remove lawyers from a role as ultimate architect of legal solutions, primarily because of the importance of the human element in contributing to productive outcomes.

That humanity was defined as communicating through body language, reading through the lines, and responding to the emotional component of client representation, identifying the exceptions that prove the rule, and the quirks of life and law that build the richest understanding of any situation.

Applying emotional intelligence – be it with opposite parties negotiation or litigation, or in internal client interactions – is far from an exact science, yet the lawyer’s role relies heavily on these essential interpersonal skills alongside technical expertise. As in the healthcare profession, while a machine might contribute pinpoint accurate analysis and speed to a diagnosis or treatment, there is currently no automated substitute for bedside manner. For this reason, some of the general counsel we spoke to pointed out the limitations on true disruption to the legal profession, and the potential for hyperbole when applying buzzwords and jargon terms perhaps more suited to analysis of tech trends to the nuances of practising law. Rather than a discussion of disruption, those general counsel felt, a more accurate description of technology’s impact would be in terms of incremental time-savings rather than replacement of core duties.

‘There is an element of “frustration” that is recurrent for the legal professionals, and it is a client saying “My lawyer doesn’t understand me”. I have been in situations where I have to go through a call center bot and they give me a number of options, but I am not always sure that my question will fit any option. So, the interaction with the machine is not always perfect, and “the human touch” is still needed,’ says Ovalle Arana.

‘I think we, as lawyers, would need to learn to interact with new technologies such as Artificial Intelligence, Machine Learning and others. The work between man and technology has never been so important and efficient and it is up to us to take advantage of it to make our profession evolve.’

But, for some, even outside of AI and any mythology about the robotisation of the profession, the cold touch of technology can already be felt – ironically aided by the very tools developed to improve communication.

‘Today, you can negotiate and close a big deal without meeting the other party in person. That’s a dramatic change, because it allows you to work remotely, even in complex fields. The challenge is that by losing the personal touch, it will hurt the lawyers in their capacity to develop negotiation tactics and so forth,’ says Alberto Vergara, head of litigation for Scotiabank Chile.

‘You save cost in matters like travel and meetings but, on the other hand, you will lose some useful tools that only the experience of personal relationships provides to lawyers. Right now, you have general lawyers that don’t have external meetings – they work exclusively by their computers, so they don’t have any real relationship with their counterparties. I would say that is problematic.’

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Breaking barriers: Adjusting to change

Most in-house counsel interviewed agreed that technology was a partner in the process – an increasingly unavoidable one – but not a rival. Yet support for technology in corporations, particularly legal departments, nevertheless butts up against frequent barriers.

Leadership

Unsurprisingly, support from corporate leadership is a prerequisite when it comes to weaving technology into the fabric of internal teams. Those at companies already well versed in technology often gravitate more quickly towards technological solutions.

There was a sense among some interviewees that timescales for innovation in more tech-based industry sectors could be truncated compared to more traditional sectors, or those with less of a technological provenance. Tech companies, for example, often enjoy a head start in the mindset of management, and a supportive attitude among the general workforce to tech or innovation-based change. These elements can help teams enjoy quicker productivity and efficiency gains than more traditional companies, who might be less open to technology culturally.

And, of course, expressions of support from leadership much be accompanied by practical encouragement – namely, financial support. Of those who participated in our report, 60% said their department had received an increase in budget for technology over the past five years. Those who had received an increase in budget were much more likely to cite technology as a strength of their legal team, at 71% (compared with 30% of those who hadn’t received an increase in budget), and to think that their company was well positioned with their use of technology, at 76% (versus 40%). Of course, the leadership of the legal team must be live to the necessity of obtaining budget specifically for technology – and, according to some, it’s a matter of outlook.

‘If the person that is leading the legal area doesn’t take the fact that they will need money for innovation or applying systems or technology into account when they are developing that budget, well, that’s a failure. It’s just because they haven’t thought about it,’ says Pablo Enrique Urrego Hernández, head of legal at Diageo Colombia.

‘What normally happens is, in the middle of the project, you ask the CEO to give you money for something you haven’t taken into account. Probably you can ask for some more money, but you must have already had the idea of developing that technology. You have to be smart. That’s why I say everything is part of the culture. If you have that in mind and it’s part of your DNA as a lawyer, you will be able to get the resources.’

For this, Urrego Hernández believes it is important for the GCs themselves to lead any example and model a progressive attitude towards embracing technology.

‘We need to develop leaders on these issues, and my challenge is to become a leader. I probably won’t be the one that will develop the systems, but I could be the one who can push everyone to understand that adopting these kind of systems is a good thing.’

Practical makes perfect

In a region as diverse as Latin America, practical constraints can be a common source of frustration among leaders eager to implement technology in multinational corporations.

‘We do have countries and projects where internet connectivity is an issue. In those cases, having world-class technological tools available to us can actually be time consuming and frustrating,’ explains Selim Guvener, general counsel for the International Potato Center.

‘We’ve been looking at how much can we do by teleconferencing rather than travelling, allowing us to have as much face-to-face interaction as possible – without having to travel across the world and contribute to global warming. On one hand, technology is developing significantly, but on the other, there are still parts of the continent that are lagging behind.’

‘We need to develop leaders on these issues, and my challenge is to become a leader.’

Even when accessibility is not an issue, there might be competing systems in play. In rolling out a global contract life cycle management system, Bayer found it had to abandon systems in certain jurisdictions, for example.

‘In the past, each region had developed their own IT tool for contracts. Now that we are migrating to the new tool – which is the single tool which will be used by everyone – it creates an additional challenge for areas or regions that need to leave the tools that were already developed, and migrate to this too,’ says Alejandra Costa, head of law, patents and compliance for Central America, Caribbean and Andean region.

‘If you’re a big, global company, you also need to prove that this technology is in accordance with the entire IT project globally. Not just in terms of local security – because what you are doing on a local level can interfere in security – but you need to understand that everybody has to approve,’ adds Patricia Ulian, general counsel for Archer Daniels Midland Brazil.

Interface issues might also become apparent when engaging with external parties.

‘When you are outsourcing your services to a large number of outside counsels, it is natural that each and every law firm uses their own system and has their own routine. It is difficult to make sure that the external company is using your system or actually providing the information that your company requires,’ says Rafael Dantas, general counsel/director for legal and compliance Latin America at General Mills.

[Data] Private: Keep Out

Thinking globally has not only practical implications, but also regulatory ones, meaning that companies must stay compliant across the board – preparing themselves to be fit for purpose in the most rigorous regulatory regimes, even if this means appearing heavy-handed in jurisdictions with a less prescribed approach. Nowhere is this more evident than in the context of data protection, as Catalina Morales, data privacy manager for Central America and Caribbean at Bayer, discovered when implementing a global system to ensure compliance with the EU’s General Data Protection Regulation.

‘Obviously there were, at the beginning, rejections: why do I have to apply GDPR, locally it’s not applicable, I don’t process EU data. But, even though you don’t process EU data, you may be doing a clinical trial locally, and in that clinical trial the data is being sent to our headquarters in Germany – so there you should be complying with GDPR,’ she explains.

‘We had to explain every simple situation where GDPR could be involved to make them see that actually it was important for us to apply it, even though locally you don’t have an obligation.’

In Bayer’s case, the system in question acts as a repository for data processing activities, enabling swift and detailed mapping of what data is accessed and when. But, in other contexts, technology could muddy the data security waters in terms of risk and accountability.

‘The more digital we become in our work, the more difficult it is to establish network safety and security. So, at the same time, we need to educate the people who are using and accessing our network in order to protect it. This will require training and capacity building for our workforce,’ says Guvener.

A clear understanding of accountability in data processes must also be ensured, to avoid ‘the machine’ being blamed for data leaks, when the issue might be one of process or authority.

Winning hearts and mindsets

Across the board, a major challenge for those implementing changes in systems and processes is gaining the buy-in and support of team members. Those on the frontline of using new technology might raise myriad concerns, ranging from reluctance to adjust to a new way of working, doubts in the quality of the system itself, through to a more existential fear of being rendered redundant.

Those who participated in our research thought that, as a whole, the profession was not adequately prepared to adapt to technological changes. Only 22% of participants believed that today’s lawyers were properly prepared and equipped to embrace technology, despite 97% saying that their team members were receptive to its use.

Thinking globally has not only practical implications, but also regulatory ones.

‘I believe the first step is constructing a culture of digitalisation, automation and using technology so that people understand that these are tools that can make life easier and better. They are not competition, they will not replace a lawyer – in my team, every person is important. What I want to be able to do is to free capabilities – give my lawyers freedom to work on other issues,’ says Urrego Hernández.

‘If you have a lawyer spending time doing contracts, that’s not right! You need to liberate, create time for them to do all those things and be able to develop other skills. What technology can do is become a partner in that development – it’s their best ally for that. If people start to understand that technology is a partner and not an enemy, or a possible substitute for their job, that will change the progress of what we have been doing.’

For Urrego Hernández, such a culture change means not only approaching new technological systems and processes with an open mind, but with a willingness to share company information with external legal tech developers, in order to develop bespoke solutions.

‘You might not be able to find what you want because it’s not yet developed, but you can find someone able to develop it. But in order to find that ally, you have to be really open minded,’ he says.

‘They need information that might be confidential, or to understand problems that normally you would not talk about outside the company. But once you understand they are an ally and give them trust, everything goes more easily.’

It’s an oft-repeated thought that lawyers are conservative and slow to adapt to change when compared to those in other professional sectors. But some believe that it’s sometimes unfair to stigmatise lawyers in this way. Rather than comparing apples and oranges, it’s important to compare apples and apples, this thinking says: areas that involve much human interaction can’t simply replace entire thinking or decision-making processes, and perhaps those areas of the profession not seeing drastic technology-induced changes are those that require a large amount of additional insight on top of what technology can provide.

Not everyone agrees on the uniqueness – and, hence, immunity – of the law when it comes to technological innovation, however.

‘I think that lawyers believe they are not comparable. This is why we have sometimes not implemented technology. But I do think that our services are totally comparable to other areas that have already implemented these tools, like in accounting and finance teams. We are able and we can implement those tools – and there is no need to be afraid of that,’ says Costa.

‘I remember when we implemented digital signatures for several legal procedures, there was a lot of resistance from lawyers in the region, but now we use it on a regular basis and digital signatures are part of what we implement in contracts and data procedures. I think there are a lot of things that we can do and I think that legal departments are more than prepared to undertake this.’

The chicken and the egg

Across the board, across continents even, there is a sense, even among many in the legal profession, that use of technology lags behind in the law. If there is a reluctance for legal professionals to adopt technology when compared to other professions, there was some discussion about why.

Some of those who provided input for this report speculated that, perhaps due to its difficulty as a subject, many were avoiding law, choosing instead to train in other business areas such as marketing, business administration, and other areas that are useful in a globalised business world, and currently popular career choices. Perhaps law struggles with its (perhaps unfair) reputation as a stopper, rather than an enabler, and this is a disadvantage it in the innovation stakes.

If it is true that law is at times seen as a less attractive choice for potential candidates, is it the very lack of technology and innovation in the law that is deterring minds from a traditional legal career, and attracting them to a newer breed of company? Bruno Feigelson, lawyer, entrepreneur and president of the Brazilian Association of Lawtechs and Legaltechs, thinks this might be the case:

‘They asked associates in big law firms in Brazil if they dream to be partner one day. They don’t want to be partners, they are not happy with the way things happen, so these new structures, these new law firms, these new ways, are attracting the best talent,’ he says.

‘You might not be able to find what you want because it’s not yet developed.’

‘The big challenge for the big law firms in Brazil is how to attract the better brains to the law firms. They want people that understand how to use software, how to use design, how to understand the legal system in another way, they start to search for new opportunities. We have a lot of special persons doing law tech, trying with new law firms, so we have a new evolution with these new young people and also the youngest people from the legal departments, they are searching for another way.’

Regardless, it seems obvious that the various arms of the evolving ecosystem for legal solutions – in Latin America and globally – could benefit (and are doing so, in many cases) from cross-pollination. Especially in the world of tech, recognition is growing about the importance of having people from different areas share ideas and explore how synergies can be created. Engineers, lawyers, people from different disciplines, can share experiences, generating improvements and new ideas in the process, which can then be applied to solutions.

Winning the innovation battle

But, as those in-house will be quick to attest, the legal profession is very much a profession of two halves – and it is often in-house teams, in close partnership with other business functions, who lead the game when it comes to tech adoption.

Interestingly, when it comes to using technology, looking to external law firms for guidance remained a rarity. Only 35% of our respondents said that they were satisfied with the use of technology by their external firms, despite 86% saying it was somewhat or very important to them that their law firms keep abreast of new technologies. Only 26% said that they looked to their external firms for guidance when it comes to new technology, with even fewer – 18% – saying that their firms had offered to share or help with the implementation of tech systems.

‘In Latin America, and in Colombia specifically…there are just the typical law firms that have a hierarchical structure of partner, associate, staff and so on,’ says Urrego Hernández.

‘They have the old-fashioned way of working and trying to change that is like trying to break a bargain. They do not care much about innovation and, I have to say, it’s frustrating, because in-house legal teams are far ahead of the legal firms in terms of using technology and using these kinds of tools.’

It’s not true to say that law firms are trying to hold back the tides across the board, however, and some noted some flexibility and adaptability among external providers.

Collaborate and innovate

At World Services Group, technology is one of the three founding principles of our network. We firmly believe in the power of collaboration and actively encourage our membership to work both with each other and the wider legal community. In an effort to facilitate this, we provide our membership and clients access to our proprietary platform and tools to help drive symbiotic ways of working.

But while technology is at the heart of World Services Group and our member firms, in Latin America, the results of the research would suggest that the sector has more work to do.

‘Latin American law firms are spectators rather than actors in the legal technology environment,’ says Victor Manuel Baraja Barrera, partner at Basham, Ringe y Correa, SC – the World Services Group member firm for Mexico.


Private practice lawyers are all too aware that they need to do more, with their in-house counterparts vocal in their calls to see the bar raised.‘We fully expect the Latin American legal sector to wake up to the potential of digital transformation in our profession in the coming couple of years.’

Of the general counsel surveyed, only 28% said that they were satisfied with the use of technology by their external law firms. While that number in itself will raise some eyebrows, what truly stands out is the 43% of respondents who said that they were unsure. That speaks to the need for firms to rethink their external messaging and better engage with their clients – not just to convey what their firm is doing in the technology space – but to understand the needs and expectations of an increasingly sophisticated end-user.

What was disappointing though, was to see that only 18% reported that their firms had offered to share or help implement new technology, while just 26% of respondents said that they looked to their law firms for inspiration or guidance around new legal technology.

‘In-house clients expect their outside counsel to at the very least be familiar with the best-known technological tools for communication and file sharing, but increasingly, to have the knowledge and ability to present them with  technology that can make their jobs easier and improve productivity,’ says Fabio Luiz Barboza Pereira, partner at Veirano Advogados – the World Services Group member firm for Brazil.

‘At Veirano, we are constantly seeking new legal technologies – both internally and from several external tech partners – from whom we are constantly requesting complementary proposals that can be used I accordance with the scope of work presented to us by our clients.’

With firms’ use of technology being such an important factor for general counsel when selecting who to instruct, it would appear that too many firms are missing an opportunity to create a point of difference commercially, but perhaps more importantly, a chance to work together to help drive progress in the legal profession.

In-house counsel across Latin America have taken up the mantle and assumed a leadership role for pushing the practice of law firmly in the direction of a tech-based future. Now it’s up to those in private practice to join them.

Eventally, predicts Ulian: ‘Clients will demand it. Increasing sophistication in client technology adoption is (and will) apply pressure on law firms and lawyers, who will be selected for their technology-enhanced services and ability to focus on complex, higher-value work to solve their clients’ legal and business problems. Some of the law firms that provide services to us also used to share with us their tools and inspire us to think about new possibilities to help our lawyers in their daily work.’

Feigelson is seeing the shoots of technological growth starting to show in the legal system in Brazil – evidenced by some law schools beginning to teach coding, and an increase in management approaches such as agile, conceived in the software development sector and often assisted by technology tools.

‘It’s very common in Brazil for the boards of the big companies to invite the CEO to go to Silicon Valley to understand how disruption is happening, in order to change the way of the future. So, the CEO goes there and they get completely brainwashed. They come back to Brazil, they hire a chief of innovation and they start to do things in another way,’ he says.

‘The legal department starts to be completely alone in the company, because the legal department knows how to work in the last century; they have some trouble connecting with and understanding these new ways within the big companies. So what we are living now in this moment is that the legal department is trying to be new. It’s very common for legal counsel to be trying to understand innovation, going to legal class about innovation, reading books about innovation.’

‘But I think the legal department is more advanced than the law firms – they are inside the companies, they are living this change, and they need to reconnect with this new world. So the reconnection of the legal world with this new reality of the fourth industrial revolution – it’s easier for legal departments than the law firms,’ he says.

The future

Recent years have seen an expansion of the role of the in-house lawyer in a number of different directions. Legal qualifications now sit at the centre of a wheel with an ever-increasing number of spokes, of which technology is one – in Latin America and across the globe – and to be equipped for future success (and relevance) legal professionals must keep their toolkit well maintained.

As Urrego Hernández aptly puts it: ‘You don’t have to spend your whole time being a lawyer, you have to spend your whole time being a lawyer that can fix problems, not just by using law, but by using other tools, other skills and other people to help you.’