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AI and Mediation

{7 minutes to read}  I’ve been writing recently about exactly who needs to/should be present at a mediation. I’ll get back to that, but what about Artificial Intelligence — AI — the hot topic du jour? What role, if any, does AI have in the field of mediation? Some of you may recall that an AI therapist was created some years ago and at least one study showed it could be quite effective in addressing many issues people generally would discuss with your basic homo-sapien therapist. Scientific American recently provided an update on all this. To some extent, any means of generating self-reflection can be useful in helping people unwind personal problems.

Artificial Intelligence. Cyborg. Concept — Photo

So, how about an AI mediator? One can imagine inputting information into a program and having the program generate possible outcomes that might help resolve a dispute. For divorce mediations, Family Law Software (created by the same fellow who created what became Tax Cut), generates financial “solutions” for divorces once data is entered about income, expenses, taxes, children, etc. Change any of the information relating to those items, and voila, the program spits out new results. This in turn can be helpful in discussing different scenarios as to who will pay whom for what and for how long. The program cannot address the angry spouse who believes any result will be unfair for various reasons, all of which may be understandable. So far at least, that still requires the subtle touch of a human mediator.

AI probably will not, any time soon, be able to handle the nuanced conversations that often take place when opposing parties are together, or during a caucus where the mediator can explore delicate matters that may require some private discussion. The back and forth conversation itself is often what generates movement and ideas, and allows emotions to be expressed and used constructively. That said, one would have lost lots of money over the past 50 years betting against the development of new hardware and software that changed our lives in ways never contemplated at the time. Since March of 2020, the vast majority of mediations are done on Zoom and initially people wondered if online mediations would be less effective because people would not be physically together. However, that turned out not to be the case.

A recent piece I read about AI and mediation said that one positive aspect of AI is that it is less likely to make decisions based on subjective factors because they are not influenced by emotions or personal biases. However, resolving a dispute can often hinge precisely on people being able to express their “subjective” emotions about a factual dispute or even on relevant legal issues.

So what can AI do? I asked ChatGPT how it could assist in a mediation, and it spit out the following in about 10 seconds. It’s basically a guideline of how to approach a mediation. However, the references to ChatGPT are meaningless without any “how-to” examples. Indeed, if you artfully replaced the word “ChatGPT” with the word “Mediator” you would have a good example of how mediation works.

  1. Introduction: Start by introducing the concept of ChatGPT to the participants. Explain that it is an AI-powered tool designed to assist with communication and brainstorming.
  2. Establish ground rules: Set clear guidelines for the participants to ensure respectful and constructive engagement. Emphasize that ChatGPT is a tool to support the mediation process and that the participants themselves will make the ultimate decisions and agreements.
  3. Define the issue: Clearly define the main issue or conflict that needs to be resolved. Provide an opportunity for each party to express their perspective and concerns.
  4. Individual input: Allow each party to privately engage with ChatGPT separately. They can provide a summary of their viewpoint, goals, and potential solutions. ChatGPT can offer suggestions, ask clarifying questions, or encourage the parties to think more deeply about their positions.
  5. Joint session: Bring the participants together to share the summaries generated by ChatGPT. Encourage open discussion and active listening. ChatGPT can be used to facilitate the conversation by summarizing key points, suggesting alternative perspectives, or posing additional questions.
  6. Brainstorming and exploration: Use ChatGPT as a collaborative tool to generate new ideas and explore potential solutions. Participants can input their proposals, and ChatGPT can help analyze and evaluate them based on the input received.
  7. Reality testing: Ask ChatGPT to simulate potential outcomes or consequences of different proposals. This can help the participants assess the feasibility and desirability of various options.
  8. Reframe and re-evaluate: Encourage the parties to reframe the issue and revisit their initial positions. ChatGPT can provide alternative perspectives, challenge assumptions, or propose creative solutions that may not have been initially considered.
  9. Facilitator guidance: As the mediator, it’s important to guide the process, ensuring that the participants stay focused and respectful. You can also provide additional context, ask probing questions, or suggest specific areas of exploration for ChatGPT.
  10. Final agreement: Once the participants have explored various options and engaged in meaningful dialogue, guide them toward reaching a final agreement. Emphasize that the decision-making process is ultimately theirs, and ChatGPT only serves as a tool to support their communication and problem-solving efforts.

SO: Here’s my question to you: HAVE YOU FOUND A WAY FOR AI TO BE USEFUL IN A MEDIATION? If you tried, what worked and what didn’t? Did it save time, present useful ideas, suggest alternatives, prepare a draft of an agreement, and create grounds for constructive dialogue? Something else? Do tell, please.

Gary Shaffer Gary Shaffer
Shaffer Mediation

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An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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