In the KCBA BAR Bulletin's March issue of Spotlight on Mediation: Strategies for Success, author Eric Gillett explores the role of AI in modern mediation.
Artificial intelligence (AI) has been in the news lately. What implications does it have for mediation? Will you be able to settle cases more efficiently and get a better result with “big data” at your fingertips? Maybe. Some people are very excited about what AI offers now and what it will offer in the not-too-distant future. Others are scared and are warning anyone who will listen to be scared too. For some, the list of what bad tidings AI has in store is long. AI will destroy human interaction. AI will hurt people. AI will develop faster than we can understand it. AI will become sentient and decide humans are not wanted or needed. Arnold Schwarzenegger demonstrated that years ago; or is that years from now? In any event, AI is populating our thoughts.
AI uses algorithms. Algorithms are simply a set of instructions a computer is programmed to follow. For example, instruct AI to add 1 plus 1, the answer is 2. But AI uses multiple algorithms to follow multiple instructions and to learn from the data gathered while it follows those instructions, and then create new instructions of its own based on the new inputs. For example, if the computer is programmed with every book ever written on the subject of swimming, it can learn very well to teach someone how to swim. It learns what methods are most frequently written about, what successful swimmers almost always do and then decides (intelligence) how to instruct the new swimmer how to swim.
One form of AI receiving popular attention is GPT-e, or third generation Generative Pre-trained Transformer. This neural network machine learning model is trained to use internet data to generate text. It requires only a small amount of input text to generate large volumes of relevant and sophisticated machine-generated text. And of course, many of us are familiar with our cell phone bots such as Siri (Apple), or Alexa (Amazon), or Google Assistant. Ask a question. Your AI friend may have the answer.
With all this artificial intelligence, who needs to hire a mediator, at least one who is a real person? Think of the database that an AI program could have at its disposal. Name the injury, describe the treatment, input the depositions, input the expert reports. AI can compare all of that data to every other case in its database and advise the parties, either together or separately, what the case is worth. Done and done.
AI has the potential to enhance the mediation process by providing unbiased, data-driven recommendations and decisions. AI systems can analyze vast amounts of data to identify patterns and predict outcomes, allowing them to provide accurate and impartial recommendations to disputing parties. For example, AI can analyze historical case data and determine the most likely outcome of a lawsuit based on similar cases, taking into account factors such as jurisdiction, parties involved, and issue type.
In addition to providing accurate and impartial recommendations, AI can also streamline the mediation process by automating administrative tasks and reducing the time and effort required for human mediators. For example, AI can automate the scheduling of mediation sessions, the distribution of documents, and the tracking of deadlines, freeing up mediators to focus on more important tasks such as negotiating and resolving disputes.
Another advantage of AI in the mediation process is its ability to learn from past cases and continually improve its recommendations over time.AI can store and analyze vast amounts of data from previous mediation sessions, allowing it to identify common themes and trends and continually improve its decision-making processes. This makes AI systems well-suited to complex and high-stakes disputes, where human mediators may struggle to find solutions.
Of course, this futurism doesn’t account for everything. For example, it doesn’t account for the twelve people we call our jury. And it doesn’t account for the esteemed member of the bench, we call our judge. So blind reliance on the cold musing of an AI mediator bot may not accurately predict the outcome of a case refereed by a fallible judge and decided by an unpredictable jury.
AI has already transformed many industries, and the legal sector is no exception. AI has the potential to revolutionize the way lawsuits are mediated and perhaps replace human mediators in some cases. However, despite the potential benefits of AI in the mediation process, there are also concerns about the impact of AI on human mediators and the legal profession as a whole.
Another concern is that AI may not be able fully to replace human mediators, who bring unique skillsets and human empathy to the mediation process. For example, human mediators are able to understand and respond to the emotional needs of disputing parties, which is a critical component of the mediation process.AI systems, on the other hand, may not be able to understand the emotional aspects of a dispute and maybe limited in their ability to provide the necessary support and guidance to disputing parties.
AI has the potential to impact the legal system by transforming the way lawsuits are mediated. AI can provide accurate, impartial, and data driven recommendations, streamline the mediation process, and continually improve its decision-making processes over time. However, it is important to consider the potential consequences of AI on human mediators and the legal profession as a whole, and to ensure that AI is used in a way that is fair and ethical. It is unlikely that AI will fully replace human mediators in the near future. The mediation process is a complex and dynamic process that requires human empathy, intuition, and understanding, which AI systems may not be able to replicate.
An AI mediator will not be much help strategizing a favorable result when you are struggling. A live mediator can help a party to find a sweet spot that will resolve the case, high or low even when the chips are down. An AI mediator will not have the nuanced programming that is required for that task. But unless the parties themselves bring the strength in their case, it is highly unlikely that the mediator, live or artificial, will pull a rabbit out of the hat which gets the party what they want. And as I have discussed in earlier articles, mediation is best used for parties to find common ground and understand what their risks are to help reveal what an appropriate settlement looks like. Running from the tough issue does not bring that party any closer to that number than if it was simply a wish on a list. And an AI mediator will certainly not fulfill anyone’s wish list. Unless the data supports it.
P.S. About 20% of this article was generated by AI. I wonder if you can spot the text. Message me on LinkedIn if you want to guess. Or let’s set up a mediation and you can decide if it’s me on the other side of the screen or something that calls itself Hal 9000.1
1 Hal 9000 was a fictional AI character and the main antagonist in Arthur C. Clarke’s 2001:A Space Odyssey.
A seasoned civil litigator and commercial mediator since 1986, he co-founded Preg O'Donnell & Gillett over 30 years ago, helping establish it as a leading business litigation firm in the Pacific Northwest.
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