Artificial Intelligence in Mediation: What the Future Holds for Mediators

Artificial intelligence (AI) for helping mediate disputes has begun to gain traction. Although it might not yet be commonplace, it is on its way to playing a pivotal role in conflict resolution, providing mediators with tools and functionalities that streamline the mediation process, offer data-driven insights, and help manage communications and negotiations. The use of AI in mediation looks both promising and transformative and presents opportunities and challenges for mediators.

The Transformative Impact of Artificial Intelligence on the Mediation Process
One can’t help but think of artificial intelligence (AI) without conjuring up Hollywood-inspired images of computers exhibiting human-like qualities in their quest for control. While these images remain mostly the stuff of imagination, the exponential growth of machine learning, predictive algorithms and their implications for the practice of law and mediation are too real to ignore. Clearly, the “AI revolution” has arrived and its transformative impact is here to stay.

Yet, most mediators still question whether its arrival portends the replacement of the genuinely human skills that mediators bring to the table. Creativity, empathy, and emotional intelligence are a few of the so-called “soft skills” that remain the exclusive province of human intervention. That said, I recently attended several international mediation conferences where the subject of artificial intelligence dominated agendas, and panel discussions moved beyond a dystopian future vision and focused instead on the practical benefits of having this fourth party in the mediation room.

What will be the practical impact of technological advancements like artificial intelligence in preparation for and during the mediation process? What guardrails exist to ensure the ethical and unbiased application of machine learning in a mediation environment? These are but a few of the questions that we, as mediators, must ask ourselves to keep pace with the changing world and its new methods for resolving disputes.

Client Expectations
As attorneys and clients come to mediation from a world increasingly accustomed to using artificial intelligence, one can assume that they will expect no less from their chosen mediator. Online dispute resolution, while technologically advanced, may not fully replace the human touch in mediation. What might this brave new world of artificial intelligence in mediation look like, and what should the mediators of tomorrow be thinking about today?

Using Artificial Intelligence as “Augmented Intelligence”
Artificial intelligence augments and enhances mediators’ capabilities through advanced data processing, predictive analytics, natural language processing, and various support tools. This augmentation allows mediators to make more informed decisions, manage cases more efficiently, and ultimately improve the mediation process. Some of the ways are discussed below.

Preparation
AI can assist as a thought planner during the convening phase of mediation. The mediator can use AI tools to identify objectives and priorities, preview potential obstacles, and even attempt to gauge what might be a “fair resolution.” Questions can be scripted in advance based on the specific dispute, such as “Give me five examples of interests that might be important to the parties” or “Provide examples of how the competing interests of the parties might be reconciled.”

For mediators who routinely receive large volumes of expert reports, business records, or other documents, AI-based software can transform the exercise from one of locating and synthesizing information to an evaluation and verification process.

Mediation Brief Analysis
Artificial intelligence can help summarize briefs, analyze and evaluate the strength of legal positions, and even offer predictions about an attorney’s advocacy skills and mediation competency based solely on the composition of the mediation brief. At Signature Resolution, we are actively experimenting with integrating AI to enhance our case data through AI-generated summaries and advanced search capabilities.

Communication
For those interested in a deeper level of mediation preparation, AI-based tools can assist mediators in facilitating communication and developing different types of questions, such as “What do you hope to achieve through mediation today?” Biometric AI technology currently exists to assist mediators in understanding and interpreting human emotions to identify underlying emotions.

Negotiation
Perhaps the most significant application of AI includes the predictive ability based on data collected and what it portends for attorneys using AI to support their negotiation positions. AI-based negotiation tools currently exist to assist the parties, and potentially the mediator, in pursuing favorable negotiated outcomes. Negotiation strategies can be implemented using strategic tools that surpass traditional distributive bargaining exercises, allowing mediators to craft creative solutions to disputes.

Drafting Settlement Agreements
AI can assist in the real-time preparation of settlement agreements and other closing documents, thereby reducing the opportunity for confusion or scrivener errors in a post-mediation drafting exercise.

Mediator Feedback
Perhaps most intriguing is the possibility that someday AI can be used by the mediator to provide critical analysis and feedback, either in real-time or post-mediation. By asking AI reflective questions such as “How did my efforts in today’s mediation compare to other recent mediations?” or “What questions did I pose that elicited the most useful information or informative response during private caucus?” the mediator can improve her skill development.

Ongoing Concerns About the Ethical Considerations of AI in Mediation
As with any new and fast-developing technology, some legitimate questions remain regarding the use and application of AI for mediation. Properly managing this so-called “4th party” in the room will require consideration and potential erection of guardrails to prevent various misguided outcomes. What are a few of the most concerning considerations?

Bias
Perhaps the most troubling of all concerns is that to the extent AI relies on algorithms based on collected data, the predictive outcomes will reflect the potential bias of that underlying data. When the data used to train an AI system reflects past prejudices and inequalities or is not representative of the broader population, an AI’s decisions can be skewed, and the biases may replicated or even amplified, leading to unfair or discriminatory outcomes.

One example of bias offered by a recent conference attendee was that when she (using her female voice) instructed Siri to perform a task, her instructions were ignored. When her husband, using a decidedly deeper, more masculine voice, gave Siri the same instruction, the task was immediately carried out. This is but one small example of potential implicit bias in the manifestation of AI that reflects the larger world bias built into the underlying data.

AI’s machine learning algorithms can also be biased based on their design or the assumptions built into them. This is particularly problematic in mediation, where fairness and impartiality are crucial. AI’s lack of creative and expansive thinking can prevent it from identifying and correcting these biases.

Additionally, AI’s inability to fully understand the complex context of disputes, including cultural, social, and personal factors, can also lead to biased outcomes.

And because AI systems follow predefined rules and patterns, they are less flexible in handling unique or nuanced situations. This rigidity can result in biased outcomes when the AI cannot adapt to the specific needs or circumstances of the parties involved, unlike a human mediator who can think outside the box.

To mitigate these issues, it is essential to ensure close monitoring and updating of AI systems to identify and correct biases and to use diverse and representative datasets for training AI. The judgment of experienced mediators will be needed to complement the use of AI tools to ensure a balanced and fair dispute resolution process.

Ethics
AI can help identify ethical moments in mediation, which offers significant assistance to those not otherwise sensitized to a potential ethical issue. That said, this assistance will need to be premised on standardized ethical rules and ethical considerations. Whose rules will become the standard, and what cultural, political, or legal issues this will surface still need to be addressed. Finally, while many can agree on generalized standards, the nuanced application of those standards may still be beyond AI’s current ability to apply.

Liability
Who is responsible when AI gets it wrong? Many are familiar with the recent example of the New York attorney submitting a legal brief replete with AI-generated misapplied cases. Similarly, a colleague recently used AI to research legal authority to guide his role as Special Master. When he began reading the cases cited to support his intended action, he quickly learned the cases neither supported the proposition asserted or were made up entirely.  Commonly referred to as hallucination, AI often seeks to fill in gaps reflecting unavailable knowledge. When confronted, the AI source apologized for getting it wrong.

Legal professionals need to be informed about ethical considerations and apply independent professional acumen to ensure the intelligence part of AI is accurate. The problem of AI occasionally hallucinating responses in lieu of substantively correct answers may be emblematic of early generative AI. Nonetheless, anyone using AI, including mediators, must apply independent professional acumen to ensure the intelligence part of AI is accurate.

Confidentiality
As we collect, store, and access increasingly large amounts of data, how do we ensure the privacy and confidentiality of this data? If not properly protected, the already skeptical, privacy-oriented public will be even less inclined to allow the appropriate collection of data upon which AI depends.

Machines vs. Human Mediators
One cannot engage in a meaningful discussion of AI without considering the ultimate, if not seemingly inevitable, trajectory of AI use in mediation. Many will argue that the choice between AI as “worthless” and AI as “replacing trained mediators altogether” is no longer binary. However, the impact on the human “soft skills” that mediators bring into the room looms large in any debate.

While AI technology can enhance efficiency, provide valuable insights, and increase accessibility, the core human elements that separate mankind from machines – empathy, creativity, kindness, and trust-building, emotional intelligence, and ethical judgment – remain irreplaceable. AI will not replace the ability of an experienced mediator to navigate complex social dynamics, handle the emotional and ethical complexities of mediation, or make nuanced moment-to-moment decisions that clients expect from us.

AI Does Not Replace Formal Mediation Training for Human Mediators
While generative AI tools like ChatGPT can provide mediators with feedback, simulations, and other resources for developing their mediation skills, they cannot replace comprehensive, formal mediation training. (Just ask ChatGPT yourself!) Formal mediation training offers in-depth and thought-provoking lessons from experienced professionals and a structured learning environment that is effective for developing effective mediation skills. AI tools must be viewed as complementary to a trained mediator’s critical thinking skills, not a replacement for those skills.

Moving Forward
As with all change, there will be those who are slow to adapt. Like everything new in mediation, innovation requires a change of mindset. After all, it wasn’t too many years ago that many of us could not envision a role for virtual mediation, and now it has become the default setting for many.

The future will likely see a hybrid approach where AI and human mediators work together, leveraging the strengths of both to improve the mediation process and deliver better outcomes for all parties involved. Mediators who adopt AI as a complementary tool and continue to develop their human-centric skills will be well-positioned to thrive in this evolving landscape.

Hopefully, the days of avatars replacing human mediators aren’t on the horizon; those mediators who embrace the new technology in the room will be one step closer to advancing the superpower of mediation. Those who fail to heed the game-changing potential of artificial intelligence in mediation are in danger of being left behind. Human mediators, with their ability to think strategically and craft creative solutions, will remain essential in addressing the complex, subjective, and emotional aspects of disputes.

Lawyers and Mediation: The Benefits of Becoming a Mediation Lawyer

While the number of civil cases that are resolved through mediation (and other forms of alternative dispute resolution) has soared, the cases that end up in a jury trial have drastically declined. Still, not many litigators have acquired the skills needed to be effective mediation lawyers. In fact, over the past thirty years, one of the untold secrets among the mediation community is that the quality of mediation advocacy – the ability of a lawyer to present and argue a client’s position, needs, and interests in a non-adversarial way in mediation – generally ranges from fair to poor.

With a continued emphasis on litigation advocacy, it’s no wonder that formal mediation advocacy training has been predominantly overlooked. What training does exist is primarily experiential, “on-the-job” learning. While there are moments of creative thinking and strategic behavior in mediation, there are an equal number of missed opportunities when evaluating mediation advocacy. The inescapable conclusion is that there is a real need for litigation advocates to become better mediation lawyers.

My friend and colleague, Daniel Weinstein, said it best when he observed, “In a world in which less than 1% of cases end in verdicts, it is surprising that lawyers prepare elaborately for a trial that will never occur, yet feel that the only preparation required for mediation is a good night’s sleep.”

I often ask myself, “Why didn’t this lawyer prepare differently for this critical moment when they have the undivided attention of the decision-makers on the other side? Or, “Why can’t this lawyer visualize the impact of their message or approach on the other party down the hall?”

Like many mediators, I spend too much precious time guiding advocates through challenging moments that they have predominantly created themselves.

What is a Mediation Lawyer?
A mediation lawyer, sometimes referred to in the profession as a mediation advocate, should not be confused with an attorney-mediator. A mediation lawyer is a licensed attorney who has received mediation skills training and, better yet, who has received training on how to best help their client resolve the disputes through meditation.

Not only are they familiar with the nuances of the mediation process, but they have acquired unique skills for navigating the potential pitfalls that can get in the way of achieving the best outcome for their clients. A good mediation lawyer is supportive of the mediation process and is ideally suited to represent their clients in the mediation environment. Mediation lawyers often handle various civil disputes, including employment disputes, which are increasingly being resolved through mediation.

An attorney mediator, on the other hand, is a lawyer skilled in mediation who acts as a neutral third party to facilitate discussion and negotiation during mediation. Because many attorney mediators have legal experience representing clients in court for the same kinds of disputes that they mediate, they have acquired invaluable knowledge of the issues at play and key insights for helping participants reach an agreement.

Unlike a neutral mediator who facilitates discussions and guides both parties through the mediation process, a mediation lawyer acts as counsel for their client and provides legal advice. They help their client understand their legal rights and the strengths and weaknesses of their position and can fashion persuasive arguments based on the strengths of their case.

During mediation sessions, a skilled mediation lawyer advocates for their client, keeps the negotiations on point, and advises their client about the benefits or drawbacks of a potential settlement agreement. When parties are unable to reach a mutually acceptable agreement, a mediation lawyer recognizes that there may be opportunities for future engagement.

Mediation Advocacy Training for Lawyers is a Crucial Step
Although mediation has developed and grown over the past several decades in the U.S., legal education has remained primarily focused on litigation advocacy. Yet, alternative dispute resolution is here to stay.

Mediation serves as a complementary process to the legal system, helping to maintain the integrity and efficiency of the justice system. Mediation advocacy training for lawyers is now a crucial step toward developing the broadest range of skills to help clients resolve conflicts and achieve winning results outside of court. In other words, to be truly successful, a lawyer must be able to achieve effective settlements that advance the client’s interests in the most cost-effective and timely manner. Mediation has proven itself to be one of the best ways to do that.

For too long, helping your client resolve their dispute through litigation or mediation has been viewed by many as a binary choice: you were a skilled advocate in one, but not both. This choice is a false dichotomy. Litigation advocates must pursue, with equal vigor, the essential skills required to develop mediation competency and become effective mediation lawyers. Across a wide range of civil disputes, including commercial, divorce, family law, real estate, and trust disputes, developing mediation advocacy skills can help lawyers represent the best interests of their clients in mediation and achieve winning results.

What Skills Define an Effective Mediation Lawyer?
While there are complementary and sometimes overlapping skills needed for both mediation advocacy and litigation advocacy, there are distinctly different skills that serve the mediation advocate in contrast to those that serve the litigation advocate. Effective mediation lawyers need to develop skills in active listening, empathy, patience, and emotional intelligence, as well as how to be flexible and creative in fashioning ways to support and meet the client’s needs in the mediation session. For example, a joint session is a collaborative setting where all parties, along with their legal representatives, meet simultaneously with the mediator to discuss their cases. Many litigators avoid joint sessions for fear of losing control or the emotional toll on their clients. In reality, it is often in the joint session that information crucial to the successful resolution of the conflict is discovered. Litigators need to learn the nuanced skills that differentiate participating in an opening session in mediation versus giving an opening statement in court.

Effective Mediation Lawyers Understand the Uniqueness of the Mediation Process
I’m fond of telling mediators and lawyers alike that the real danger in life lies in not knowing what you don’t know. For many individuals in the world of mediation, this statement couldn’t be more indicative of the challenges we face.

For mediation to be effective, it is crucial that the parties agree on the mediator’s selection, establishing a cooperative environment conducive to dispute resolution. From there, it is a matter of thinking less about tearing down the opposing parties’ arguments and more about preparing to think about a different perspective.  Unlike in the courtroom where the lawyer has one primary audience, the judge or jury, in mediation, the effective lawyer understands that their audience includes decision-makers on the other side, their client, and the mediator.  What probably appeals most to the effective mediation lawyers I’ve worked with is the potential for creative solutions unavailable before a jury or a judge.

There is another compelling reason to provide mediation lawyer training, one that is especially critical in emerging mediation markets: achieving acceptance of the practice itself. Thinking back to my early years of promoting mediation here in the U.S., lawyers were the most important stakeholder group to engage, while they also put up the most resistance.

Embracing Mediation Through Better Understanding

Fast-forward to recent times. As I teach mediators and assist governments in other countries in successfully implementing mediation in their judicial systems, I’ve come full circle. I’m again confronted by lawyers who resist mediation based on their fear of the unknown, economic uncertainty, or other reasons. Their resistance impedes the acceptance of a culture of mediation in their communities.

Assisting local mediators in engaging these attorneys through mediation advocacy training may be the best way to break down their resistance. Mediation advocacy training offers lawyers the opportunity to reimagine their career trajectories. By embracing mediation through better understanding and then building mediation advocacy skills, mediation lawyers can separate themselves from their peers and deliver winning results for their clients.

The Need to Formalize and Institutionalize Mediation Advocacy Training
At Edwards Mediation Academy, we believe that the long-term success of mediation in the United States and other parts of the world depends on its acceptance and the building of the attendant skills of mediation advocacy. In pursuit of this goal, it’s simply not enough to let learning evolve organically through “on-the-job” experience.

Instead, we must formalize and institutionalize the relationship between lawyers and mediation through quality mediation advocacy training.    Too many lawyers sit comfortably in the doldrums, waiting for the winds to change.  Acquiring the skills to become better mediation lawyers will help them learn to adjust their sails and catch the winds of opportunity.

Certified mediator? The Sparrow and the Peacock

Having taught mediation skills for over thirty years and, more recently, having developed an online mediation training curriculum, it’s only natural that I stand as a zealous proponent of mediation training. It follows, then, that I am increasingly alarmed by the number of mediators entering the profession who have little or no training and even less practical experience. For many of these aspiring mediators, a successful career in law or a certificate from a 40-hour introductory course in mediation is held up to the world as documentary proof of their requisite skills and training.

How did we arrive at this moment in our nascent profession? And, more importantly, how do we build credibility as a profession by emphasizing the importance of high-quality education and skills development? As mediators, we operate in a unique professional environment. We come from various backgrounds, and we apply our skills in various settings.

We begin with a look back
At the beginning of our profession, we necessarily focused our initial efforts on developing a sustainable career path. The conversation about training requirements, model standards of conduct, and conduct enforcement lagged behind. Despite most mediators agreeing that some degree of training and education was essential as a prerequisite to market entry, there was little consensus around specific requirements. Consequently, we found ourselves in a profession with no national standards for mediators.

Even today, we are left with a patchwork approach to ensuring mediation competency. Few states have training requirements, and those that do, require a minimal number of hours of training. In most states, you need significantly more training to be a licensed barber than a professional mediator. Some courts and other private service providers in the US do have training requirements to be on their approved panel of mediators. Proper training is crucial for professionals seeking to offer dispute resolution services.

A proliferation of mediation training courses
In this void, we’ve witnessed the proliferation of 40-hour mediation training courses. Incredibly, some courses even profess to “certify” students as mediators upon completion, conveniently overlooking that this word has no official meaning in the broader profession.

It’s not my intention to criticize forty-hour mediation training programs or downplay the significance for those individuals who have received a certificate upon completion. Indeed, at Edwards Mediation Academy, we grant certificates upon successfully completing our courses. I also actively participate in many face-to-face programs that promote this same approach to learning. I believe that credentialing oneself is an important first step in career development.

My criticism is with those who think that a forty-hour basic mediation training course, or less in some cases, is all that is required to commence a career in mediation or those who believe that Artificial intelligence can replace quality mediation training. I recently heard a mediation trainer suggest that the audience use Chat GPT to get a list of the steps to mediate when first starting. There is a place for AI in mediation, but it certainly does not replace a high-quality mediation training program.

Because peer review is limited, many untrained mediators look to the final outcome, meaning whether the dispute was resolved, as the sole litmus test of their performance. To these mediators, the means and methods of how that result was achieved take a distant back seat, and self-reflection is an afterthought, at best.

The need for deeper education and training in mediation
I often look to other industries for examples of where our mediation profession should aspire. For example, many professionals equate the skills required in mediation to those required by practitioners of the therapeutic sciences. It’s interesting, for instance, that to be a licensed clinical therapist, one needs several years of formal education and a year of mentoring under the guidance of a licensed professional before being allowed to consult with their first patient.

In thinking about the need for deeper education and training in our profession, I am reminded of a statement by Malcomb Gladwell in his book Outliers: “It takes roughly 10,000 hours of practice to achieve mastery in a field.” To illustrate the absurdity of minimal training to be proficient in mediation, I often ask my mediation students to envision themselves seated on an airplane and ready to pull back from the gate when the pilot comes on the public address system and announces, “Ladies and gentlemen, welcome to flight 123 to Washington D.C. You’ll be happy to know that I just completed the forty-hour course on piloting this new aircraft, and I’m looking forward to our first flight together.” Not exactly confidence-inspiring!

Truth be told, there is so much more to be gained from experiential learning than is available through certificate programs alone. I was recently “shadowed” or observed in mediation by a visiting mediator from Columbia, South America. After a long day of mediation, we sat privately to debrief, and I asked what he had learned that day. He responded by saying that he appreciated my use of stories to build a strong connection with the parties. What was even more instructive, he continued, was how seamlessly the stories occurred in conversation and how strategically they were used to help manage difficult moments. He concluded by saying that it was this nuanced use of storytelling that he could never have learned from a book or a 40-hour basic mediation program.

Criteria for selecting a mediation course
Since training standards for mediators are not yet in place, what are the important criteria an aspiring mediator should look for in selecting a mediation course or curriculum? I strongly suggest the following focus:

1) Experienced Instructors
Look for programs taught by those instructors with “real world” experience. In a marketplace of professional trainers, few have the type of practical experience that Malcomb Gladwell would describe as “mastery in the field.” Yet, it is an instructor’s ability to blend theory and practice while using their rich experience that brings learning to life. Learning from experienced mediators ensures you gain expertise in conflict resolution, communication techniques, negotiation skills, and legal and ethical compliance.

2) Interactive Learning
Whether face-to-face or online, look for interactive programs that afford opportunities for experiential learning. Neurobiology tells us that authentic learning comes from experience, including failure. All too often, introductory courses are long on lectures with limited opportunities to incorporate or observe practical skills. Effective mediation training should also include observing an experienced professional making nuanced decisions when working with disputants.

3) Content
In addition to understanding the fundamentals of the mediation process, a comprehensive mediation training program needs to include communication and active listening skills, practical yet nuanced strategies for guiding parties, a comfort level handling impasse amid high emotions, and the ability to recognize and acknowledge the significant impact of culture and bias on the mediation process, all imperative to getting parties to trust and actively participate in the process.   But that is just the start. To assist individuals through negotiation and settlement, mediators must internalize the need for self-reflection and self-management in the mediation process.

4) Variety
Mediation skills are consistent across a variety of disciplines. Therefore, training in one area of skill development may be easily transferable to a different application. That’s why a student of mine once took a job in a nursing home to improve his listening skills since he knew he would need to listen carefully to his patients. Don’t overlook any quality program that will expand your thinking and skill development, whether in communication, neurobiology, body language, or online mediation. Decision-making skills are also crucial in mediation, especially for handling family conversations, inheritance disputes, caregiving, and financial planning.

5) Approval by a state bar association or other credible institution
Look for mediation courses that have been approved by a state bar association or other credible institution or that are offered through a credible institution. That is a practical means of guaranteeing their quality. Just because an organization says you will be a certified mediator upon completition, make sure that it is from a credible source, not just a marketing ploy.

Learning is an ongoing endeavor
Once you have immersed yourself in mediation coursework and have gained an appropriate number of certificates for your office wall, let the education continue. Look for opportunities to “shadow” experienced mediators and debrief with them afterward to learn why they made specific decisions at a given moment. Practice skills in a “role play” environment because your brain can’t distinguish between “real life” scenarios and authentic practice using “role plays.” Volunteer for dispute resolution experiences. Get together with like-minded individuals to practice amongst yourselves.

Once your career is underway, never stop learning. Form groups of local mediators and share experiences. Keep notes of your own experiences and debrief yourself following every mediation. Ask experienced mediators to periodically peer review your efforts. Only through high-quality mediation training can we continue to build credibility as a profession. Only by acknowledging that certificate programs are an important first step, but only a first step, can we help our mediation clients distinguish between those in our profession who are certified mediators and those who are truly competent. As one of my former colleagues at JAMS was fond of saying, “The sparrow may tell himself he is a peacock, but the peacock knows the difference.” Understanding and mastering the mediation process is crucial for continuous professional growth.

The exalted goal of mediation training was perhaps best captured on the television program 60 Minutes during an interview with Misty Copeland, the first African American ballerina to dance for a premier dance company. When the interviewer observed that Misty’s dancing appeared “effortless,” she quickly replied, “I’ve spent a lifetime of effort making this look effortless.”

Whether you distinguish yourself as a certified mediator or not, you must commit to the same level of preparation. Then, when the stage lights are on, you will possess the necessary skills to assist those in conflict competently. In so doing, you will represent the best of our profession.