ODR, Artificial Intelligence & Mediation: A Look To Tomorrow
With advancements in technology, especially artificial intelligence (AI), most experts agree that we will see a future where certain jobs of today will become obsolete. Those jobs include those in a factory setting or even in transportation (like trucking). For other jobs, experts foresee not a total replacement - but a fundamental change, wherein AI and human professionals work hand-in-hand (or hand-in-robot) to not replace employees, but enhance them. Examples include jobs with automated tasks that can be implemented by a machine and allow humans to focus on "more enriching work." Or, like in the healthcare industry, AI may be used by medical professionals for a second opinion or as a prescreening tool for doctors.
First, it is important to understand the ways AI may be implemented into the workforce, and to do that, one must know the difference between assisted, augmented, and automated intelligence.
As explained by the #CyberMediation Initiative:
Assisted intelligence supports the work of a human being,
Augmented intelligence allows humans to do something that they would otherwise not be able to accomplish, and
Automated intelligence describes those cases in which the entire task is performed by an AI.
Generally speaking, ‘the technology’s greater power is in complementing and augmenting human capabilities."
More than likely, all areas of the workforce will eventually be impacted by AI. But the extent to which that happens will vary based on the field - and mediation is no different.
Today, AI-assisted conflict resolution platforms already exist - and are growing in popularity - creating a new type of dispute resolution - AI-DR, a term coined by Ethan Katsh, Founder, of the National Center for Technology and Dispute Resolution and widely recognized as the founder of ODR.
For example, the start-up Peacebuilder exists as a platform for online dispute resolution (ODR) "to help individuals and associations to find the most effective way to resolve disagreements using artificial intelligence and a group of experts in conflict resolution." However, the idea of online dispute resolution is not new. For over a decade, organizations including the United Nations have been studying online dispute resolution and implementation of electronic, international conflict resolution systems. Long before the UN established its Working Group on Online Dispute Resolution, eBay launched an online internal system for parties to settle their disputes online in 1999 - which helped to resolve over 60 million disputes each year.
Now U.S. state courts have been catching on to the efficiency that ODR can provide to parties looking to resolve disputes. The National Center for Technology and Dispute Resolution maintains an international listing of courts using ODR, which includes many state and federal courts across the country.
And what about AI to decide disputes? Even this implementation is not a distant reality - countries including England and Estonia have already started using artificial intelligence in their court systems. And in the United States, some courts have even used AI for criminal sentencing.
The debate about the future of mediation and its integration with AI has been milling for years - with the conversation spanning from full automation of the mediation process (see Jennings) to "negotiation support" (see Schoop).
Technology-driven mediation tools already exist in different forms, including decision support systems and knowledge support systems (Hibah Alessa of University College London (UCL) does a wonderful job of introducing and exploring all of these different systems in depth in The role of Artificial Intelligence in Online Dispute Resolution: A brief and critical overview - the discussion of these systems, below, draws in part from that article).
Decision Support Systems
Examples of these types of systems include the Family Winner system, which involves the parties listing disputed items and then assigning a value of priority to each of the items so that the system can come up with a proposal for distribution, to be accepted or rejected. Or the Smart Settle e-negotiation system, which defines itself as a "robot mediator" and asks parties to give preferences/ratings to certain outcomes to assist a mediator in gauging which combination of outcomes may be satisfactory to all parties (see this comprehensive Yahoo article by Family Mediators Abby Tolchinsky and Ellie Wertheim discussing the logistics of the system in detail and practice). And then there are systems like Adjusted Winner, which provides information as to whether certain outputs are similar to the eventual resolution of the disputes.
Knowledge Support Systems and Case Reasoning Systems
A knowledge support system acts like an advanced search system, with capabilities that could include searching for applicable rules/laws to determine precedents for similar facts. A case reasoning system draws from past outcomes to make recommendations for resolution. An example is Split-Up, which examines different factors commonly involved in divorce settlements and then makes suggestions for the parties based on learned resolutions from prior settlements.
Substitutive AI Systems
When we consider the idea of AI-driven mediation, it is likely a substitutive AI system most may conjure first, where the technology controls the entire process.
ODR and AI-Driven Mediation in Workplace Disputes
The majority of the AI-assisted mediation/ODR programs currently in place serve the fields of family law (and, to some degree, criminal law). But can these programs translate to the field of employment and labor law?
On the Program on Negotiation Harvard Law School Daily Blog, Harvard Business School research associate Katie Shonk explored "Using Online Dispute Resolution to Resolve Workplace Conflict" by examining whether e-mediation ("mediation that relies on at least some use of information technology") could be an effective tool in workplace disputes. Her article considered workplace dispute resolution through technology tools such as videoconferencing like Skype, Zoom, and Google Handouts.
In recognizing the potential of satisfaction by parties utilizing technology-assisted tools for workplace disputes, she pointed to a study by Katalien Bollen and Martin Euwema of the University of Leuven, Belgium, that found "subordinates who mediated a dispute with a superior were significantly more satisfied with technology-supported mediation than with traditional face-to-face mediation." And e-mediation can have other benefits, including managing conflict cheaply (avoiding travel costs) and minimizing scheduling complications.
Looking Ahead
But with the development of this new technology, mediation is facing opportunities and challenges, due, in part to the fact that it has traditionally been a low-tech, human-intensive field. The CyberMediation initiative will initially look at the impact of new technologies on mediation, the use of social media by mediators, the relevance of digital data for mediation as well as artificial intelligence and text-mining for mediation.
In Geneva, Switzerland in 2018, the UN Department of Political and Peacebuilding Affairs, DiploFoundation, the Centre for Humanitarian Dialogue (HD), senior researchers from Harvard University, and Swisspeace launched the #CyberMediation Initiative to examine "the impact of new technologies on mediation, the use of social media by mediators, the relevance of digital data for mediation as well as artificial intelligence and text-mining for mediation." The Initiative published a first report on its findings in 2019, which "provides (a) a mapping of the relationship between AI and mediation, (b) examples of AI tools for mediation, (c) thoughts on key considerations and precautions when using AI tools, and (d) a discussion on the potential impact of AI tools on trust in the context of mediation." Given the changing landscape of AI and mediation, the Report concluded that "even if mediators do not directly engage with AI tools, they need to have a basic AI literacy." While the Report acknowledges that not all future mediation will include use of AI, "awareness of the tools and the opportunities and challenges associated with them will be key."
On a more basic technology level, as we move into a post-COVID world, we will likely see parties continuing with preferences
As technology develops at a rapid speed, it will be crucial for mediators to stay abreast of advancements to provide efficient and cutting-edge services to meet clients’ needs in an evolving world.
Mediator Lindsey Wagner, Founder of Moxie Mediation, is a licensed attorney in California, Florida, and Ohio. She provides online and in-person employment mediation services, workplace investigations, and workplace training.