Nicole Kelly

What is mediation?

Mediation is the process of attempting to resolve conflicts by way of open and constructive discussion between two parties, facilitated by an impartial third-party, the mediator. Mediation is entered into voluntarily by the parties in an attempt to reach an outcome mutually agreed by both. Mediation does not always necessarily resolve the dispute entirely, but it allows for open communication, giving both parties the opportunity to express their side of the dispute and feel heard. It is a useful method of alternative dispute resolution as it does not focus on who is right or wrong, rather it seeks to find a solution beneficial or agreeable to both parties. Mediation is used in a variety of disputes, including, but not limited to, separation/divorce, professional negligence, and contract disputes.

The benefits of AI in mediation

AI can quickly review and analyse a large volume of documents regarding the history of a dispute and both parties’ position. It can thereafter provide a summary of the matter and pick out the key points of contention. It can also identify any common ground between the parties in order to streamline the process and allow the meeting to focus on the more complex issues at hand, accelerating the meeting. It may also pick up on points that would not necessarily be apparent at first viewing to a mediator and assist in better understanding of such points.

As part of the analysis carried out, AI can also understand how parties interact with one another through patterns in communication. It can then use this information to examine how different resolutions would be received by the parties and make well-informed suggestions as to how to best resolve the dispute.

AI can also be of benefit when a dispute involves complex, technical information that requires to be simplified for one of the parties, or the mediator, to allow for better understanding of the issues. This can ensure that the parties, and the mediator, are knowledgeable of a point or argument made without getting lost or overwhelmed by technical jargon.

As AI can streamline the mediation process, it can also be a cheaper option to traditional mediation. The streamlined nature of AI means that the time taken to analyse and provide suggested resolutions is reduced, thus lowering costs.

Whilst a mediator is a neutral third-party, there are still unconscious biases that a mediator requires to be aware of and effectively address. AI can be programmed to approach mediation without emotional bias, focusing purely on the facts and data provided, ensuring fairness and removing the possibility of unconscious bias. This can also result in consistency in the mediation process, which can build trusts with parties and enhance their opinion of mediation.

The limitations of AI in Mediation

AI can be limited in its understanding of human emotion, focusing purely on the facts and not underlying emotions. Whilst it may understand that a party feels a certain way, it lacks the empathy that makes a party feel understood and heard. AI has limitations in its understanding of the range and extent of human emotion that can present differently in different people. For example, it may recognise apparent sadness in one party, but not subdued sadness in another. A mediator may be better experienced and trained to recognise a variety of emotions and address these as they arise and develop during the course of mediation.

Whilst AI can provide a logical solution based on data analysis, this may not always be the most suitable outcome for the parties. AI can be limited in its ability to provide solutions to issues that are more complex, such as those that involve moral dilemmas. There may also be problems with its ability to adapt as it will only be able to function within the scope of its programming, whereas a mediator can adapt to unpredictability. A mediator can also provide more flexible and creative solutions when a dispute cannot be neatly solved by one overall outcome.

The use of AI in mediation would also require both parties to be knowledgeable about the use of AI technologies in order to effectively engage. This could otherwise unfairly benefit a party with greater knowledge and experience than the other. It may also be more difficult for a party to put forward its point and feelings than it would be for it to engage with a mediator who can help to draw out underlying feelings and points not primarily presented.

Mediation relies on confidentiality, with discussions to remain private between the parties and the mediator. The use of AI presents a risk regarding data privacy due to possible data breaches and a lack of transparency as to how data will be used. It is essential that AI systems adhere to data protection principles and ensure robust safeguards are in place to ensure trust from participating parties.

It should also be noted that GDPR gives an individual the right to insist on human oversight where any decision is taken which will have a significant impact on them. Therefore, the use of AI in mediation cannot fully replace a mediator where a party insists on this right.

Collaboration or replacement?

Whilst AI has vast capabilities to streamline the mediation process and provide quicker solutions, its ideal application in mediation is to assist and compliment the work of the mediator. Mediation requires a human element to provide empathy, engagement and encouragement to the parties. A mediator can guide parties through difficult, sensitive topics, ensuring both parties are fully involved in the proceedings and feel heard and can better assist in providing flexible solutions that ensure both parties are agreeable to the outcome.

AI will certainly evolve further as time goes on and may in time be better developed and equipped to overcome its current shortfalls in mediation. However, whilst mediators can certainly enjoy the benefit of using AI to assist in quicker review of documents and the finding of common ground between parties, the human touch is still of necessity when it comes to mediation.

Nicole Kelly is a solicitor at BTO LLP