Margaret Doyle considers the potential impact on AI for mediators now and for the future.
We’ve been hearing a lot recently about the advances made in artificial intelligence (AI) and what this might mean for our collective future. For some AI is an exciting development, opening up creative and commercial opportunities (stand-up comedians are looking to it to generate jokes). For others, it’s an existential threat to life as we know it. In higher education, AI technologies such as ChatGPT have raised concerns about student plagiarism. Some professions have been identified as most at risk by AI – journalists and copywriters, for example. What has been called the fourth industrial revolution is ‘a transformative technology that will fundamentally reshape economies’. In addition, there are a number of legal implications to be aware of, in terms of copyright, liability, and data protection.
What does the advance of AI mean for mediators? Is it a threat or an opportunity for our profession?
One of the most prominent of the new-look AI technologies is ChatGPT, a chatbot launched in 2022 by OpenAI, a Microsoft-backed not-for-profit that describes its mission as to ‘ensure that artificial general intelligence (AGI)—by which we mean highly autonomous systems that outperform humans at most economically valuable work—benefits all of humanity’. Its user-friendly interface makes AI more accessible to more people, allowing them to generate ‘human-like’ prose in response to a prompt. (Or, as AI expert Mhairi Aitken writes, ‘ChatGPT is like an overconfident newbie stand-up act whose studiously watched hours of stand-up and learnt to mimic the mannerisms and language of their favourite comedian but lacks any of the charisma or content.’)
As with any AI technology, ChatGPT is subject to inaccuracies – it depends on the accuracy of the data it’s accessing. Aitken highlights a number of other risks of ChatGPT – including that it is in test mode, and users (it has more than 100 million) are basically acting as guinea pigs, testing and refining it to contribute to the final product, which will no doubt be used to generate profits for large corporations. It also relies on ‘invisible’ and underpaid human labour to label data and train the chatbot. It is vulnerable to the in-built biases of the algorithms on which it runs; as Aitken writes, ‘Despite this being so called ‘artificial intelligence’, it’s not intelligent. It can’t think, it doesn’t understand the words it produces. All it does is reproduce patterns from the human language it was trained on, and in many cases that also means reproducing biases and prejudices.’
What might AI mean for mediators? Let’s think first whether it can be a helpful tool. Can AI, for example, help us train mediators and generate practical resources? I asked ChatGPT to produce a mediator’s opening statement, and this is what it produced in about two minutes:
My name is [Name], and I will be your mediator today. I would like to welcome all of you to this mediation session.
The purpose of this meeting is to help you resolve your dispute in a constructive and respectful manner. As a mediator, my role is to help you communicate effectively and to facilitate a fair and efficient negotiation process.
I want to assure you that this process is confidential, and everything that is said during this meeting will be kept strictly confidential unless agreed upon otherwise.
I encourage each of you to take an active part in the process and to work towards a resolution that is mutually satisfactory. We will work together to identify the issues, explore options, and find a solution that meets your needs.
The key to success in this mediation process is to approach it with an open mind, be willing to listen to each other’s perspectives, and to be respectful and courteous to each other.
I look forward to working with you, and I am confident that we can find a solution that works for everyone involved.
It’s not very nuanced, but perhaps it’s a good starting point for newly trained mediators, who can take what ChatGPT produces and adapt it to their own style and preferences.
Can it help us with awareness raising, to help others understand how mediation might help them in a dispute situation?
I asked Chat GPT ‘Why should I use mediation to resolve my dispute?’ This is the answer it generated:
Mediation can be a more cost-effective, time-efficient, and flexible way to resolve disputes compared to going to court or other formal dispute resolution methods. Mediation also allows for the parties involved to have more control over the outcome of the dispute, as they are actively involved in the decision-making process. Additionally, mediation can help preserve relationships and foster better communication between parties, which can be particularly beneficial if they will need to continue working together in the future.
It’s ok – fairly basic but it gets some of the key points. Again, it’s perhaps a useful starting point for those new to mediation, and it can be adapted to add detail and context.
I then asked ChatGPT some of the questions posed in the excellent publication Making Mediation Work for You, a practical handbook published by Legal Action Group and written by Garden Court Chambers mediators Kate Aubrey-Johnson and Helen Curtis. I asked, ‘How do I decide whether my case is suitable for mediation?’ (a question I was invited to respond to in the handbook). ChatGPT generated this response:
Before a mediation, I would advise a party to do the following three things:
- Prepare their case: It is important to have a clear understanding of the facts and issues involved in the dispute and to prepare a compelling argument to present during the mediation. This may involve gathering relevant documents, evidence, and witness statements to support their case.
- Identify their goals and interests: Parties should have a clear understanding of what they hope to achieve through the mediation and what their underlying interests are. This will help them to develop a strategy for the negotiation and to evaluate potential settlement offers.
- Consider their BATNA: The Best Alternative to a Negotiated Agreement (BATNA) refers to the course of action that a party will take if the mediation does not result in a satisfactory settlement. It is important to consider what their options are if the mediation is unsuccessful and to evaluate the costs and benefits of each alternative. This will help them to make informed decisions during the mediation and to negotiate from a position of strength.
I then asked it for a second response, and interestingly, a slightly different answer was generated:
There are a few key factors to consider when deciding whether your case is suitable for mediation:
- Willingness of the parties: Mediation is a voluntary process, so both parties must be willing to participate in good faith. If one or both parties are not willing to engage in the process or are seeking to use mediation solely as a delaying tactic, then mediation may not be suitable.
- Nature of the dispute: Mediation can be effective for a wide range of disputes, including those involving contracts, employment, personal injury, family, and community issues. However, there may be some cases where litigation or arbitration may be more appropriate, such as cases involving complex legal issues or where one party is seeking a legal precedent.
- Availability of a mediator: Parties must agree on a mediator who is neutral, experienced, and has the skills to facilitate the negotiation process. If parties cannot agree on a suitable mediator, then mediation may not be feasible.
- Time and cost considerations: Mediation can be a more cost-effective and efficient way to resolve disputes compared to litigation, but it is important to consider the costs and time commitment involved in the process. If parties have limited resources or need a resolution quickly, then mediation may be a better option than going to court.
In summary, mediation can be a valuable option for many types of disputes, but it is important to assess the specific circumstances of your case to determine whether it is a suitable approach.
I prefer the second one, because it captures more of the pros and cons and highlights that mediation isn’t right for every dispute or disputant.
Mediators might be concerned to know what impact ChatGPT will have on their own livelihoods and the profession as a whole. To answer this, I asked ChatGPT, ‘Will AI replace mediators?’ This is what it told me:
While AI has the potential to assist and enhance the work of mediators, it is unlikely to fully replace them. AI technologies can help mediators in tasks such as organizing information, generating reports, and analyzing data, but they are not capable of performing the complex and nuanced role of a mediator.
Mediators must have a range of skills, including active listening, communication, empathy, and conflict resolution. These skills require human intuition, experience, and creativity, which are not easily replicable by AI.
Moreover, mediation is a process that involves building rapport and trust between the parties, which is best achieved through human interaction. The role of a mediator involves managing emotions and ensuring that all parties are heard and feel respected, which is essential for achieving a successful outcome.
While AI can be helpful in streamlining the mediation process and improving efficiency, it is unlikely to fully replace the role of a human mediator. Rather, AI is likely to be used in conjunction with human mediators, providing support and enhancing the quality of the mediation process.
It seems the human element is still essential, at least for now. I expect most mediators will be reassured by that. Yet it’s difficult not to see the writing on the wall, or on the screen. AI is here to stay, and while it’s not yet truly ‘intelligent’, it’s great at mimicking. We’d better make our peace with it.