5th Key-Technology: Embrace and Integrate Relevant New Technologies
Much ink has been spilled on the future of mediation, and how robots may someday take over from humans. However, mediation is not an empirical science that can be reduced to algorithms. It is a social process that requires an understanding of human behaviour, psychology, social and brain sciences, emotions, group heuristics, etc. Mediation is thus likely to remain a process that involves humans for the foreseeable future, and technology is unlikely to completely replace mediators in the next 10 years. Nevertheless, mediators can do a better job of using technology, and understanding what products, algorithms and systems are available. They need to be aware of new technologies, and how they can help improve the profession in the coming decade.
Artificial Intelligence (“AI”) Is Changing the Game
“AI” is the ability of a machine to think and learn on its own, without being encoded with commands. Relevant methods such as natural language processing, reinforcement learning, and deep learning, are evolving at exponential rates and AI is already impacting mediators. Commercial disputes often involve terabytes of information that need to be analysed and processed quickly. Machines are far more effective than humans at triaging and aggregating such information. This is why new “legal tech” products are increasingly used in litigation and arbitration. Some AI applications are already being developed to generate tentative findings of fact and of law, and the respective strengths and weaknesses of disputants’ positions. Mediators can leverage AI to assess the likely merits of the case, help the parties to understand possible Zones of Possible Agreement, prepare analyses of BATNAs/WATNAs, and generate discussions on benchmarks if the matter doesn’t settle.
In addition to substantive analysis, there are vast amounts of publicly-available information about most people, including their psychometric profiles, often without their knowledge. AI software such as CRYSTAL claims to be able to analyse personalities and predict the likely behaviours of people in conflict situations or negotiations with greater than 80% accuracy. It uses data published on social media accounts (e.g., LinkedIn, Salesforce, Hubspot or Google mail) to assess individuals and how they may work within a group. It may be only a matter of time before parties or new AI algorithms start using such systems to assess neutrals or assess participants. While this may be viewed as shocking or dangerously manipulative, it can also be viewed as an opportunity for greater self-reflection, to monitor potential biases and systemic “group think”, in the hope of being more mindful and optimizing communications. The use of such AI functionalities is likely to increase as mediators, disputants and their advisors discover their existence and functionalities.
Interview with Jeremy Lack, Ana Gonçalves, Daniel Rainey, and Francois Bogacz
Data generated by the Global Pound Conference series is also being used to develop software that uses a Triage Resourcing Modality Matrix (TRAMM) to pair disputants with the most appropriate dispute resolution process that matches their familiarity and experience with ADR. TRAMM can also be used to predict what style of mediation may be most appropriate in certain cases, and whether to use co-mediation. This software can distinguish between disputes having a 50% chance of settling using mediation from those having a 90% chance of doing so. It may also be used to design mixed processes, combining evaluative or adjudicative processes with mediation. It may be developed and improved to optimize case diagnostics and process design. They can be especially valuable where disputants have varying experience or cultural approaches to mediation.
New Brain-Machine Interfaces Are Coming
Virtual and augmented reality (AR/VR) also need to be considered. Research is being conducted using virtual agents, including the voice or image of a real person or an avatar, which may be used to assess the conscious and/or unconscious needs of the parties. Our communication handsets will soon be able to provide us with multilingual simultaneous translations and AR/VR information that can be used to diagnose disputants’ emotions, analyse facial expressions, track body language, monitor voice features and interpret vocabulary. Is the person nervous, upset, angry, sad? New applications may soon provide disputants, advisors and neutrals with greater information in real time about what participants may be thinking, the likely success of different interventions at different stages, and probable reactions of participants to different techniques. This could be via pop-up windows appearing on videoconferencing screens, or in fully 3-D immersive environments, involving holograms and all of our senses, including tactile feedback or even olfactory stimulation. This may sound futuristic, but such technologies are not far away.
The Future is Now
Whether we welcome them or not, new technologies are poised to have an enormous impact on the future of mediation. While many are still in their infancy, they can advance quickly, having the capacity to significantly impact how mediators, disputants and advisors prepare for mediations, intervene, communicate, and influence settlements. They can reduce barriers to mediation’s uptake, and improve difficulties with costs, travel, deadlines, complex relationships, emotionally-charged situations, or understanding participants’ underlying concerns, needs and interests. While they raise serious ethical issues (e.g., whether and how to use them or obtain consent), the challenge is to understand their potential, and to channel them to meet the disputants’ needs and help them reach better outcomes. This may also include determining when they should not be used or relied upon, and understanding how different mediator styles or preferences may impact their clients.
Turning a blind eye is not an option. Mediators who ignore new technologies are likely to be overtaken by those who don’t. They may no longer meet best practices. A new generation is already emerging that is willing to adopt these new tools and technologies, as is being done in other domains. New technologies can improve mediation and inspire its greater use. It is up to each mediator to decide whether, how or when to use them. This requires learning about them first and keeping an open mind.
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