Over the last few years, the use of artificial intelligence (AI) has been front and center. Indeed, the California State Bar has made one hour of continuing education in the technology part of the Mandatory Continuing Legal education requirement. If you take the one-hour webinar, it no doubt focuses on chatbots, generative AI such as ChatGPT, and those specializing in the legal field.
A recent blog post by Katie Shonk on the Harvard PONS blog website points out the good and the bad of using AI in mediation. The good is that AI can sift and digest reams of material in seconds which would take a human hours to digest. Thus, if a matter is document-intensive, the mediator can use AI to sift and summarize the documents in seconds and get a handle on the issues very quickly. (Id. at 2.)
AI can also help the mediator analyze the situation and generate questions to be posed”…aimed at identifying parties’ underlying interests…” (Id. at 2.) AI can also suggest proposed offers and counter offers and even make a mediator’s proposal (with the parties’ consent, of course.) (Id.) AI can suggest the next moves of the parties and perhaps predict where the matter will ultimately settle. (Id.) Shonk suggests that AI can even offset the unconscious biases of the mediator and the parties that affect human decision-making. As AI is not affected by emotions, it will not make the cognitive errors in judgment to which humans are prone. (Id.) Finally, Shonk discusses one situation in which AI provided a mediator’s proposal, which spurred the parties to overcome their apparent impasse and continue to negotiate. (Id.)
The many webinars on the topic have emphasized the challenges of AI. First and foremost, the input information is NOT confidential, so any prompt typed into it may be available to the general public ( depending on the particular AI used). As important, the AI may provide incorrect or inaccurate information, aka hallucinations, so some checking and due diligence is required before using the information provided (Id. at 1.)
Perhaps the most critical issue about AI (which is the most beneficial to humans!) is that mediation involves lots of emotions. Strong emotions often come out during a mediation, and AI is simply not programmed or equipped to handle the emotional aspects of a mediation. It is a skill set peculiar to humans! AI does not know how to deal with anger, frustration, or fear, but hopefully, the skilled human mediator does! (Id. at 1) In this one area- dealing with the emotional aspects of resolving disputes, AI will never replace the human touch.
So, while AI provides many benefits to mediation in resolving disputes, it will never replace the human touch!
…. Just something to think about.
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