AI use in mediation, arbitration gets a closer look

The use of artificial intelligence, and concerns about how safe and secure it is, is an area of discussion that’s touching all facets of law.

That includes mediation, arbitration and alternative dispute resolution, where attorneys weigh the gains in efficiency and potential cost reductions gleaned from AI against questions of its reliability and ability to protect confidentiality.

“Dispute Resolution Enhanced: How Arbitrators and Mediators Can Harness Generative AI,” an article from the American Arbitration Association’s AI working group released in February, looked at the application of AI technology with neutral decision-making and alternative dispute resolution.

“While fears and speculations abound regarding AI’s potential to replace human judgment, our current perspective is not about replacement, but rather enhancement. For the arbitrator and mediator, generative AI stands as a promising tool to enhance efficiency, offer deeper insights, and provide a level of precision previously unattainable,” the article’s introduction stated.

Frank Emmert, a professor at the Indiana University Robert H. McKinney School of Law, has been a professional mediator and arbitrator for 20 years,

Emmert is also a fellow at the Chartered Institute of Arbitrators, where he participates in international commercial arbitrations.

He said he will be teaching an upcoming AI-related course at McKinney.

The use of AI tools up until now have been primarily centered around the support of repetitive activities like the processing of thousands of pages of documents, something Emmert said might be done in a big commercial arbitration case.

It allows arbitrators to analyze documents faster, although Emmert cautioned that there’s still very much a need for human attorneys, support staff, oversight and “the human brain.”

“They’re not replacing us yet,” Emmert said of AI tools.

There is not an app yet that actually decides disputes on behalf of opposing parties in court, Emmert cautioned.

Mediation is difficult because it involves confidential information, he said.

But the technology is evolving rapidly, to the point where Emmert predicts that basic court cases, like those involving rent evictions or car accidents, could incorporate AI soon.

Mediator concerns about AI, confidentiality

Thomas Collignon, a registered civil mediator with The Mediation Group, said, historically, insurance companies have used a form of AI with computer algorithms to value injuries.

He said the results someone gets from using an algorithm depends on the quality of data that’s entered.

With the mediation process, Collignon said he’s having trouble finding where AI would fit in.

As a mediator, Collignon said his job involves reacting to people and adapting his message to them.

“I’m not sure I see a role for AI in all of that,” Collignon said.

Collignon said he’s not aware of any mediators that use AI.

For him, the confidentiality involved with mediation makes it difficult to incorporate AI and the potential disclosure of information to third parties.

Michael Bishop of Bishop Mediation & Arbitration, LLC, said mediation has an extensive human element involved in the process.

He said he personally would not take part in mediation with an AI bot, in part due to his concerns about confidentiality.

With an AI bot involved, Bishop said he couldn’t be sure where the information he’s submitting is going and wouldn’t be able to control it.

Bishop said one possible application he could see with AI in mediation would be using it as a comparison tool where the mediator could consult AI to see what settlement scenarios could develop under a certain set of facts.

“A mediator could compare the AI research results with what the lawyers are proposing and what the mediator’s past experience has been in similar cases. This could give the mediator another idea on how the case could settle. Again, the concern would be, are the results from the bot accurate?” Bishop said.

Matt Schad, a trial attorney with New Albany-based Schad Law, has presented seminars for the Indiana Trial Lawyers Association and other organizations about the use of AI in law practices.

Schad said he has used AI such as ChatGPT, Casetext and an Otter.ai voice-to-text transcription program a lot to prepare for arbitration and mediation, noting that he had an upcoming case where he had to give a mediation statement.

The New Albany attorney said the AI tools help him move through the structure of a letter and instantly recall information.

It’s all geared toward making him a more efficient and better writer, Schad said.

ChatGPT can come up with interesting, innovative arguments that he may not have considered, Schad acknowledged.

He added that he’ll use AI tools to help him answer questions that a mediator might have for him, with Schad comparing the use of AI to hiring an expert.

As comprehensively as he uses the tools, Schad is quick to point out that he verifies everything taken from the use of AI software and programs.

Future of AI in mediation/arbitration?

Schad said attorneys are slower to embrace changes with new technology than a lot of other professionals.

He agrees that everything introduced in mediation is confidential and shouldn’t be shared with other people.

The attorney pointed out that Indiana’s court system employs electronic filing, with even sealed information entrusted to a digital medium, with attorneys also using Google Drive, Dropbox and other online tools that meet strict security standards.

“This is a new technology and people are understandably cautious when we have client secrets and information,” Schad said, adding, “Being cautious is not the same as dismissing it.”

Schad said he expects that a year from now, things will change so much with AI that there will be a different conversation in the legal world about its use in mediation by attorneys.

Even with his personal reservations about AI’s use in mediation, Bishop acknowledged it is discussed a lot by attorneys, with many seminars devoted to the subject.

“We’re keeping our eyes peeled as to how it could affect mediation,” Bishop said.

The IU McKinney law school announced in June 2023 that Emmert was asked to serve on the Silicon Valley Arbitration & Mediation Center Task Force, which is developing guidelines for the use of AI in dispute settlement procedures.

Emmert said that at McKinney, professors and administrators are tasked to look 10-15 years into the future in order to provide students with the best preparation in the legal profession.

Now, that includes teaching students how to use AI tools in order to be better attorneys and judges down the road.

“If we don’t do that well, we’re creating more problems for them,” Emmert said.

Emmert said he expects to eventually see evolutions in the state’s bar exam that acknowledge the role of AI.•