I Have a Dispute to Mediate -- Should I Use Artificial Intelligence as My Mediator?
We are all hearing about artificial intelligence—the exciting ways it can process a lot of data quickly and the troubling ways it can use bad data just as easily as good data, as well as create “hallucinations” based on misperceiving what are facts and what are not.
Still, with its reported efficiency and accessibility, one might wonder whether trying AI as a neutral to resolve a dispute might be better than using a human mediator. AI does not appear to possess some skills, however, that seem essential to serving successfully as a mediator -- at least not yet.
Lack of Empathy - AI cannot understand and empathize with emotions. Often in a dispute a party first needs to feel heard and understood about why the dispute exists before the party is ready to discuss solutions. Part of being able to consider the other side’s perspective and considering compromises, is first having confidence that one’s own perspective is heard and appreciated.
Thinking Inside the Box - AI works on predefined algorithms. Although we can input facts to get AI to develop options, AI may not be able to think outside of those defined limits, to ask further questions to understand whether a fact not yet shared might expand potential solutions to a dispute.
Limited Creativity - AI has also been shown to be less creative than humans. Hence, while all the information and issues presented in a dispute may have been presented in monetary terms, for example, only a human mediator might consider a completely different means of settling the dispute -- such as an apology and some collaborative endeavor that hasn’t been explored yet and benefits both parties. This solution might be something that was only raised by one party’s off-hand comment during their discussions. AI might have dismissed the comment as irrelevant.
Can’t Build Trust and Create Calm - another aspect to a successful mediation is often that the parties trust the process and the mediator to protect the process. Often a party is comforted by the mediator’s commitment to stay with the parties until they have explored all viable solutions to their dispute, for example. AI is unlikely to make such a commitment. Sometimes, it is simply the calm and confident demeanor of the mediator that allows a person to stay calm and focused and consider the other party’s ideas, thereby leading to a settlement. At this point, I doubt an AI mediator would generate that kind of calm and focus in a party.
What Happens to Confidentiality and Privilege? - There is also another concern with using AI as a mediator: the potential for risk to the confidentiality and privileged nature of the process that is otherwise available to mediating parties in the U.S. and other countries. Disclosure of information to AI may lead to waiver of those rights because AI generally uses the information received as data for improving its process. It integrates the information into its database. This “disclosure”, if authorized by the parties, may be viewed as a disclosure to a third party waiving all rights to protect such information and to keep it from discovery in a court proceeding in the unfortunate event that the mediation fails. Courts will no doubt be evaluating this issue around the world; it’s a concern for now.
So should we completely forget about AI? No. It can be useful in a mediation. A mediator and the parties can use AI to develop options, sort data, and organize issues, for example. It can also help locate outside information the mediator seeks (since it is built into most search engines nowadays). Perhaps one day AI will be a better choice, but for now, a human mediator, equipped with AI, seems the better choice to resolve our human differences.
RULES here, RULES there, RULES RULES EVERYWHERE!
There is no substitute for reading, knowing, and following the rules of one’s trade, and that includes work in mediation. A lawyer must follow the rules no matter where one practices law and a mediator must follow the rules no matter where one performs mediations. Now that we are all working virtually, practicing law or performing mediations frequently takes lace across many borders of states or countries. There is no substitute for knowing the ethical rules of the road, whether by statute, court rules, laws of other countries, or treaties, wherever the work occurs. Ethical requirements may vary widely from one place to another.
That said, although the wording may vary, there are many consistencies in best practices for facilitative and evaluative mediations everywhere.
1) Self Determination. This is a basic tenant of mediation no matter where you or the others are located. The mediator is not an advocate for either side. The mediator should be sure the ultimate decision on settlement of the case is the parties’ – that it is voluntary and non-coerced.
2) Impartiality. A mediator is often referred to as a “neutral.” This word is used both as a noun and a verb. It is descriptive of the mediators’ position and how they must act and also how they must be perceived. Mediators must be careful not to fall victim to their own actual or implicit biases and to recognize bias in others. If mediators find they have biases for or prejudices against either side , whether before or during a mediation, and they feel they can no longer perform their duties fairly, they should withdraw.
3) Conflicts of interest. A conflict can arise in a number of ways. For example, it would be a conflict if the mediator is related to or in a business relationship with one of the parties. The mediator should not accept the case. However there are instances in which the conflict may not be as apparent. In such instance, the mediator must nevertheless disclose the conflict or potential conflict and its potential implications, even if the mediator believes he or she can be fair. The mediator must give the parties a chance to discuss the issue privately. If the parties then all agree to go forward with the mediator anyway, the mediator may continue. Even if not always required under applicable laws or rules, putting the disclosure and waiver in writing is advised.
4) Appearance of conflict or bias. Mediators must be conscious of the appearance of conflict or partiality for or against a party. Perception can be as dangerous to the process as an actual conflict of interest. In such cases, some state statutes mandate following the same process required for actual conflicts.
5) Competence of Mediator. Mediators must maintain competence in technology used for mediations. This is one component of competence — of equal importance to knowing ethical and other rules of the relevant jurisdictions.
6) Competence of Parties. If at a mediation, a mediator suspects a party is incompetent due to drugs, alcohol or mental condition, the mediator should make sufficient inquiry to decide whether the mediation should proceed. If it’s determined the party is not competent for any reason, the mediation should not proceed.
7) Confidentiality/privileged. There are different rules on confidentiality depending on a mediator’s jurisdiction and the jurisdiction of the parties. In many states, for example, if the parties are in different rooms, virtually or physically , and one party shares information with the mediator, the mediator may not disclose it to the other side without express permission. The mediator must keep the confidences of each party. Often confidential communications of mediation parties are privileged by law, as well. That means a mediator must keep facts disclosed in mediation confidential from all others, including the court if called as a witness, unless all parties agree otherwise. Typically confidentiality requirements are found in the rules of evidence for the relevant jurisdiction but sometimes are set by statute or other law. Mediators must check the rules of any and all relevant jurisdictions because the amount of protection may vary.
Closer to home, Minnesota State Supreme Court ecently adopted rules for mediation that set the standard for Minnesota:
Mn Rule of Civil Procedure (MRCP) 114. 07 regarding Use of Evidence in Court states in part, “Without the consent of all parties and an order of the court,… no evidence from an [alternative dispute resolution] process or any fact concerning the ADR process may be admitted in any later proceeding involving any of the issues or parties.”
MRCP 114.08 Neutrals Duty of Confidentiality states in part “notes, records, impressions, opinions, and recollections of the neutral are confidential, and the neutral shall not disclose them to the parties, the public, or any third persons, unless (1) all parties and the neutral agree …or (2) disclosure is required by law, or professional codes …”
In all instances, the mediator must explain the scope of their confidentiality to the parties.
THESE ARE BASIC and ELEMENTARY practices that should be applied by every mediator with the primary and prevailing practice being to always check the rules, HERE, THERE and EVERYWHERE a mediation will take place.
Japan Adopts New Mediation Act and Sets Path to Accede to Singapore Convention
Japan’s New Mediation Act
On April 21, 2023, Japan announced the adoption of a Mediation Act, which lays the foundation for a robust mediation framework within the country. It provides that a Japanese court must enforce an international settlement agreement, once a party has submitted the agreement and documents proving that it is an international settlement arising from a mediation. To avoid such enforcement, an opposing party must establish to the court’s satisfaction that one of a limited number of grounds for declining enforcement has been established--such as:
Incapacity of a party;
Invalidity of the agreement under applicable law;
The mediator’s serious breach of applicable standards; and
Bias-related issues.
The Mediation Act was adopted to enhance Japan’s mediation infrastructure and encourage the use of mediation in cross-border disputes in Japan. The Act is seen as an indicator of Japan’s interest in leading the global mediation community to promote mediation as a means of resolving cross-border disputes—to demonstrate Japan’s mediation-friendly culture.
One of the additional significant implications of Japan's Mediation Act is its alignment with the United Nations Convention on International Settlement Agreements Resulting from Mediation (commonly referred to as the “Singapore Convention”). The Singapore Convention was signed by 56 countries, including the United States, to promote easier enforcement of mediated settlements across borders and now countries are beginning the process of ratifying it. The Singapore Convention became effective September 20, 2020, but only applies to any country six months after that country has deposited with the United Nations its ratification, acceptance, approval or accession. Right now, just eight countries are parties, but many will become bound in the coming years. Japan may be able to be at the forefront of the countries acceding to the Singapore Convention, with this new Mediation Act.
As an aside: The U.S. has not yet ratified the Singapore Convention. The American Bar Association has urged the Department of State to seek accession by the Senate of the convention as soon as possible, but the exact timeline for U.S. accession remains uncertain.