Blog Archives - Gary P Shaffer

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.

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.
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.
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.
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.
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.
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.
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.
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.
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.
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
Shaffer Mediation
Gary@ShafferMediation.com

Who Needs to be There: Divorce

{5 minutes to read} In my last blog, I wrote about who needs to be present during a mediation involving construction matters. Now I’ll address who needs to be present in a divorce mediation.

Here’s the quick answer: The divorcing couple.

Aerial view of 3 empty chairs set for a meeting

Anyone else? Maybe.

Divorcing couples come in all shapes and sizes. Some have been married for 2-4 years with no kids, and insignificant mingling of assets. Some have grandchildren. Many are in between. Some get along well enough that they can be in the same room together (virtually or physically) without too much distress. However, often at least one person will be uncomfortable being in the same “space” with the other spouse. But that discomfort cannot and should not always be avoided.

In a 10-20 year marriage with a few kids, the couple will most likely be dealing with each other in some fashion for the rest of their lives, and having them learn to work through disagreements together may be critical for the entire family. That can be something learned through the mediation process. One question that arises is whether they can do that with only each other and the mediator present.

Who Needs to be Present at a Construction Mediation?

{6 minutes to read} This is the first of several blog posts on who needs to be present at a mediation for it to proceed smoothly. A resolution may not be reached even with all the proper players present. But without them, there is no chance. This blog will address construction cases.

Construction cases come in all sizes. They can arise from putting in a new bathroom to constructing a hundred-story skyscraper. And everything in between. Even small jobs may involve an architect, a GC, and a sub or two. For example, that new bathroom may require electrical work that is done by an electrician who is not an employee of the GC. If there is an electrical issue post-construction, does the electrician need to be present at the mediation? Probably, but has the electrician been sued? Of course, a mediation can be held without starting a lawsuit, which can be extremely useful assuming everyone agrees to participate. Maybe the homeowner and GC can work something out between themselves. In a small job, that’s often possible.

Show Me the Money!

{4 minutes to read} After Covid shut down most courts in March 2020, it became clear that mediation could be an essential means to move cases along. The number of court-based mediation programs started to expand, with enormously positive results. This in turn has expanded the use of mediation as a routine part of the litigation process. It has also raised a long-simmering issue about paying mediators for their work.

The history of mediation goes back many years. Its first major use in New York was largely through what are called Community Dispute Resolution Centers (CDRC’s), which, as the name implies, handled community disputes. These were often the types of disputes that arose between neighbors. Excessive noise, some kind of trespass, an argument that was persistent and maybe about to get out of hand, or even did get out of hand, meaning the police had been called. Indeed, the police were often the conduit for cases going to a CDRC, since they realized the conflict was more civil rather than criminal.

Genesis and Dispute Resolution

{4 minutes to read} Conflicts go back a long way. There’s no shortage of them. Some get resolved and some don’t. And the species has chosen many different ways to resolve disputes. One method with a long history is murder. It’s a quick solution, though not necessarily a long-lasting one.

Cain killing Abel, marble relief on the facade of the Milan Cathedral, Duomo di Santa Maria Nascente, Milan, Lombardy, Italy

According to the Bible, Adam and Eve get off to a rocky start. Even before the trials of raising a family arrive, Adam and Eve have some issues. You may recall the serpent convinces Eve she need not fear eating the fruit from the Tree of Knowledge of Good and Evil. She eats the fruit, gives some to Adam, who also eats it, and things go downhill pretty fast. God notices what happened, asks for an explanation, and the testimony is a model of accepting responsibility and trying to work things out.

Does it Matter What Time a Mediation Starts?

Someone once asked me what the key was to resolving a case at mediation. My answer was: It starts to get dark out.

No one wants to leave the mediation at the end of the day with nothing to show for it, and as the skies deepen, people often start to modify positions that were much firmer earlier in the day. The logical extension of this is that the winter solstice is your friend and the summer solstice can be a setup for a very long day.

Of course not every case gets resolved in one sitting and the setting sun may have little effect on divorce matters, which often unfold over several months as the spouses figure out how to navigate a new landscape involving kids, houses, finances, and summer vacations. But a large percentage of mediated disputes are limited to issues that will be resolved by one party paying the other a sum of money. In those matters, I often find that people don’t want to end the day without a resolution.

Presumptive Mediation Update

~This post is dedicated to Chuck Newman, a good friend who was passionate about mediation and worked tirelessly to move it forward in many different areas. He will be sorely missed.~

{4 minutes to read} I have written before about Presumptive Mediation, which generally refers to courts where almost all civil cases presumptively go to mediation early in the litigation process.

Many state and federal courts have such programs and they are generally very successful. The New York State courts have been slow to embrace this though in May 2019 the State’s Chief Judge, Janet DiFiore, issued a press release stating the New York State courts would move to a presumptive mediation model.

Can Mediation Turn Back the Clock? – Construction

In my last blog, I addressed mediation turning the clock back and focused on divorce matters. What about other types of disputes?

Reverse clock with wooden frame isolated on white background

Several months ago, I mediated a case involving an upscale medical practice in a very upscale Manhattan coop building. Like most medical offices in such buildings, it was on the ground floor and had suffered from some flooding that the practice believed was the fault of some actions taken by the coop. The case was actually on appeal before the 2d Circuit so one side had already prevailed at the District Court. However, the mediation brought the two sides together for discussions that never would have happened had the parties simply moved ahead with the appeal. It turned out that both sides really wanted to figure out a way to live together since, in fact, they were going to regardless of who prevailed on appeal. Neither the building nor the medical office was going anywhere soon.

Can Mediation Turn Back the Clock?

I’ve written before about what success means in mediation. Often it means a complete resolution of a dispute and the parties can go on their way, having saved lots of time, aggravation, and a bundle in litigation expenses. Even when there is not a complete resolution, mediation often resolves at least part of a dispute or helps the parties significantly lessen the amount of discovery needed as the case moves forward. However, can mediation undo what’s been done? Can it restore the parties to some kind of pre-dispute state of harmony?

Discovery

{4 minutes to read} I have written before about when is the best time to mediate. No, you don’t have to go back and re-read that blog because the answer is simple: Now. Now is the best time to mediate.

Does that mean, now, now, or now with some lag time? Ok, now with a little lag time. A party can’t mediate by itself, so there are by necessity some preliminaries, like getting the other side(s) to participate in the mediation. However, that is becoming easier as more courts increasingly direct the parties to mediation without waiting for an agreement. If you want to see a good example, look at the ADR rules for the Federal District Court for the Western District of New York or the rules for North Carolina State Courts and federal courts: Eastern District of NC, Western District of NC, and Middle District of NC.

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