New Technologies and Mediation: Advantages and Shortcomings

Welcome to the latest edition of Mediation Path Silicon Valley newsletter where we bring insights into the evolving world of mediation. In this issue, we will attempt to determine the positive impact of new technologies on the mediation industry as well as in some cases their limitations.

1). New technologies and mediation: Undeniable advantages

The integration of new technologies in mediation is revolutionizing the field. Below is an overview of the most common uses of new technologies in mediation to illustrate how the mediation process can benefit from new technologies.

1-1). Online dispute resolution (ODR)

Online Dispute Resolution (ODR) platforms are gaining traction and making mediation more accessible and efficient. They are used in almost every online shopping platform to resolve disputes between buyers and sellers. With ODR the parties are not present in a meeting, rather the parties exchange messages, documents, and evidence relevant to the dispute online. The parties negotiate online to reach an agreement. Once an agreement is reached, the agreement is formalized through the ODR platform. The agreement is typically documented and signed electronically.

If the parties do not reach an agreement, some ODR platforms offer options for arbitration, or the parties can resort to traditional litigation.

1-2). Artificial intelligence-assisted mediation

Artificial intelligence (AI) is being used to streamline the mediation processes in various ways. Here are some of the most common manners in which AI is being used to support and enhance mediation:

AI can analyze large volumes of data to identify patterns, trends, and potential solutions;

AI tools can help assess the conflict by analyzing text or verbal communication between the parties;

AI scheduling tools can streamline the process of setting up mediation sessions, as well as sending reminders and facilitating information exchange;

AI can analyze communications to identify key points of agreement or disagreement;

AI can facilitate automated negotiation processes by suggesting possible compromises, generating settlement proposals;

AI can predict the likely outcomes of mediation based on historical data and case similarities;

AI can also collect feedback from the parties to assess the effectiveness of the process and provide suggestions for improvement in future cases.

1-3). Blockchain for mediation records

Blockchain technology is being explored for its potential applications in mediation, particularly in enhancing transparency, security, and trust in the mediation process. Here are some ways in which blockchain is being used in mediation:

Blockchain can create smart contracts, self-executing agreements with predefined rules and conditions. As a result, mediation agreements can be coded into smart contracts, ensuring that the terms are automatically enforced once agreed upon by all parties;

Blockchain provides a tamper-resistant ledger of all mediation-related activities, including communication between parties and decisions made during the process. This transparency can help prevent disputes over the details of a mediation itself;

Blockchain’s encryption and decentralized nature can enhance the security of sensitive mediation information;

Blockchain can securely store and verify evidence presented during mediation;

Blockchain can provide a reliable timestamp for all mediation-related documents, messages, and decisions;

Lastly, blockchain is suitable for handling cross-border mediation cases, as it can provide a secure and standardized platform for communication and agreements between parties in different jurisdictions.

1-4). Virtual mediation

Virtual mediation, also known as online mediation, is a process of resolving disputes remotely using digital communication tools and platforms. It has gained prominence, especially in situations where in-person meetings are challenging, such as during the COVID-19 pandemic. Here are some of the most acknowledged advantages of virtual mediation:

Virtual mediation makes mediation services more accessible to individuals eliminating the need for traveling to a physical location. This is particularly useful in cross-border disputes as it allows the parties to avoid interstates and/or international travel;

Virtual mediation is used to resolve a broad spectrum of disputes, including family matters (divorce, custody, etc.) elder law matters, and disputes over inheritances;

Virtual mediation can allow the parties to share documents easily;

The virtual environment often results in more efficient mediation sessions, as parties can focus on the core issues without distractions associated with in-person meetings;

The virtual platforms used in mediation usually include password protection and waiting rooms.

2). New technologies and mediation: Case-by-case limitations

Despite all the benefits brought by new technologies in the mediation field, some mediation areas require the presence of the parties involved to be effective. How would you resolve a divorce or an inheritance dispute without ever interacting in person? In those cases, the principal limitations of new technologies are as follows:

Lack of non-verbal cues: In-person or virtual mediation allows participants to pick up on non-verbal cues, such as body language and facial expressions, which can be important for understanding emotions and intentions;

Cultural and language barriers: In-person or virtual mediation allows participants from diverse cultural backgrounds or those who speak different languages to overcome cultural nuances and language barriers more easily;

Difficulty in building trust: Trust is crucial in mediation. In-person or virtual mediation allows to establish a rapport between the mediator and participants. As a result, the absence of physical or virtual presence can hinder the development of trust and rapport.

Emotional disconnect: Likewise, the absence of physical or virtual presence can lead to an emotional disconnect between participants. They may not feel as accountable or emotionally engaged as they would in face-to-face meetings even if it take place via a computer screen.

Lack of emotional intelligence: Algorithms typically lack emotional intelligence, making it difficult for them to understand and respond to the emotions of individuals in a meaningful way. They may struggle to recognize sarcasm, humor, or the emotional state of a person.

Lack of creativity and empathy: Algorithms are not creative or empathetic. They follow predefined rules and patterns, which may not be suitable for addressing the diverse and dynamic nature of human interactions.

Bias and fairness: Algorithms can inherit biases present in their training data, which can lead to unfair or biased outcomes in human interactions. For instance, as pointed out by Robert J. Condlin University of Maryland School of Law in a 2017 study (https://rb.gy/l6wb3 ):“ Because the expert algorithms that drive ODR systems are secret and known only to their owners and creators, participants in such systems have no way of knowing or contesting the conceptions of the correct outcome on which the algorithms are based, or the accuracy of the information on which the conceptions themselves are based”.

To conclude, although the improvements brought by new technologies to the mediation process are undeniable, one cannot deny that human interactions are in some cases the cornerstone of a successful mediation.