What Now, Alexa?
By In the world of technology, I am more curious than skilled. As a solo practitioner, mediator and arbitrator, my skill set can generously be described as “adaptive.” When I lost an entire federal court brief in a technological swamp the night before it was due and had to pull an all-nighter to recreate it, I learned a hard lesson about saving backups. An email hack taught me about both two-factor authentication (and that I could repurpose swear words I had archived for more life-threatening emergencies).
Technology in alternative dispute resolution has been a story of adaptation, too. During the pandemic, we quickly learned how to use Zoom for mediations, arbitrations and court hearings. For many of us, Zoom mediations remain a significant part of what we do. But as naturally cautious lawyers, few of us welcome the opportunity to dip our toes into machine learning or purely online adaptations to the classic forms and forums we have grown accustomed to.
Despite the uncertainty we may feel, technology is transforming everything we know, and machine learning and other technology promise to be a bigger and bigger part of our lives. If you’re like me, AI has become a go-to resource in drafting simple letters, planning vacation itineraries and other rudimentary tasks. On a weekly basis, too, I get notifications about AI or other technological resources that are becoming routine in the practice of law.
The cautionary tales are notorious. We’ve all heard the funny story about the attorney who, to his horror, showed up for a virtual federal court hearing using the headshot of a family cat. We smirk and shake our heads at the story of the lawyer who submitted a brief with made-up case cites AI had hallucinated.
But can AI be useful in mediation and other forms of dispute resolution?
A knee-jerk response might be that AI is (currently) unable to navigate the human emotions mediators face in resolving disputes, like anger and frustration, grief, and shame – emotions that can create both obstacles and opportunities for a successful mediation.
Some mediators are already beginning to appreciate the role of machine learning in dispute resolution. AI can be particularly helpful in administrative tasks, and in creating basic templates or drafts of legal documents lawyers and mediators can tweak for their own use. Can AI create the first draft of a settlement agreement that the parties can tweak for their specific needs? Can unrepresented parties create the required written settlement agreement by using an AI-generated form?
AI is particularly useful in analyzing large data sets. Parties and mediators have begun to use those tools to better predict verdicts and settlements in similar cases.
In a recent article by the Program on Negotiation of the Harvard Law School, the authors described a mediation regarding a lease dispute. The parties were close to impasse. The mediator asked ChatGPT to identify a reasonable settlement amount as between the $550,000 of the demand and the offered $120,000. The mediator did not believe the plaintiff would ever settle in that range, but in a final effort to avoid impasse, he asked whether the parties would agree to settle at an amount, as yet unknown to the parties, that ChatGPT suggested. The parties agreed to use that method if they reached impasse but resumed negotiations, ultimately resolving the case at a number that was only $5,000 less than ChatGPT had recommended. Learning how close their final number was to what ChatGPT proposed, the parties were satisfied at the ultimate settlement amount.
Other forms of technology are emerging. Online or e-mediation is a growing form of alternative dispute resolution for high-volume, long-distance conflicts that may not result in litigation. These mediated settlement conferences can occur between parties who have not and will never meet and whose disputes range from eBay transactions to family issues and workplace conflicts. The e-mediations can occur through emails, video conferences or in online forums. To learn more, see Harvard Law School’s Program on Negotiations’ blog on E-mediations.
Have you had experience with technology in mediations that goes beyond Zoom or other videoconferencing technology? How did it go? Let’s start a conversation. Email me below if you’d like to share your experiences.
Denise Smith Cline is the 2024-2025 Chair of the NCBA Dispute Resolution Section.