Bloomberg Law
Aug. 17, 2023, 8:00 AM

AI Is Smart, But It Can’t Replicate the Human Touch in Mediation

Joseph  Panetta
Joseph Panetta

There are often disconnects between how people say they feel and what they genuinely feel. Understanding emotions can be challenging for humans, and artifical intelligence really falls short in its ability to grasp the nuances of human motivations at the core of many disputes.

AI-based mediation uses sophisticated algorithms to facilitate resolutions between parties, but it can’t replace human mediators’ interpersonal approach and innovative problem-solving capabilities. One consequence is that AI can’t deliver creative solutions that go beyond wording of agreements and monetary compensation—but that addresses the more meaningful underlying issue at the heart of a dispute.

Because AI is built on black-and-white scenarios and past outcomes, it’s not capable of generating creative solutions that speak to the heart of a dispute. Even now, when other technological advancements such as online dispute resolution have become more common, the preservation of human-to-human interaction is central to their success.

Mediators’ skill in managing emotions like anger, frustration, and fear—which may be fueling the conflict—are central to the dispute resolution process, and mediators create an environment where participants can express their emotions in constructive ways.

Human mediators are more flexible and adaptable than AI and can adjust their strategies in real-time to cater to each case’s unique requirements. Experts estimate that 80% to 90% of disputes submitted to mediation achieve resolutions with creative solutions.

In meeting and working with mediators around the world, many examples of creative outcomes have been shared with us.

  • Long-time business partners ran a highly successful enterprise for decades but were locked in a seven-year legal battle. They turned to a mediator who realized their disputes were around differing management styles rather than money. The mediator explored many ways they might decouple, as well as the ensuing consequences. Ultimately, the partners decided to “split” the company, giving each partner his own side to manage while the company remained in business.
  • A media organization in Europe faced a slander suit from a high-profile politician but refused to admit wrongdoing or pay monetary damages, asserting they had no legal responsibility. During preliminary negotiations, the mediator observed that the politician consistently emphasized his love for family and fine dining. The media outlet offered to pay for the politician’s extended family to enjoy a meal at a prestigious Michelin-starred restaurant. The value of this resolution was significantly smaller than any traditional award, yet it satisfied both parties.
  • An elderly sculptor in Europe paid a model to pose for his new work. He asked to photograph her to continue work on the piece when she’s not available. She agreed, provided the images of her nude form are only used to inform the sculpture. Years later, she sees her photos in a collage advertising at a gallery opening of the artist’s work. A local media organization used this collage as an editorial and an ad.

The model sued the artist and the news outlet were sued for using her images without her consent. During mediation, the newspaper’s CEO was impressed by the woman’s intelligence and composure. The mediator negotiated an employment contract with the newspaper for the woman. She became a successful marketing team leader for the paper, and the artist paid only a small sum.

Conflicts are inevitable, and the art of mediation proves a powerful tool for managing disputes effectively while preserving relationships and reputations. Could an AI have listened for the unobvious? Could it have seen the potential for an employment opportunity?

AI will almost certainly have a role in the legal arena. But it can’t and shouldn’t have a role in mediation, as the human touch remains essential for managing emotions and fostering creative resolutions.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Joseph Panetta, chief global strategy officer for Immediation, oversees an online dispute resolution platform interfacing with mediators, arbitrators, and judges across the world.

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