As mediators, we often describe our work as “looking outside the box.” We challenge parties to move beyond rigid legal positions and explore creative, interest-based solutions. Yet, when it comes to our own profession, we have a confession to make: the mediation community has become surprisingly rigid.
In a recent conversation with our colleague Alyson Carrel, a clinical professor at Northwestern Pritzker School of Law and dispute resolution systems design expert, we explored a central paradox. While mediators and dispute systems designers preach flexibility to clients, we noticed our field has historically been “anti-technology,” clinging to a narrow definition of the mediation process to protect its legitimacy.
The COVID-19 pandemic forced dispute resolution practitioners to incorporate technology and video platforms into practice. Now, the rise of Artificial Intelligence (AI) is accelerating automation and innovation. As Alyson pointed out, it is time for us to apply our own problem-solving skills in expanding how we mediate and the ways we use AI. If we want to move from being “digital immigrants” to innovative practitioners, we must learn to translate innovation into the everyday work of the mediator.
The “Purity” Trap: Why We Resist Innovation
For decades, the mediation community fought hard to be seen as a legitimate alternative to litigation. To do that, we defined the process strictly. We worried that if we gave an inch, the process would be co-opted into a “pseudo-arbitration” or a “lesser” form of justice.
As Alyson noted, “The need to promote mediation in this very narrow way to protect its integrity has kept us from creativity.” Many practitioners argued that technology would diminish the experience of procedural justice. The pandemic forced our hand, proving that video conferencing and digital tools didn’t break mediation—in many cases, they enhanced it.
Now, we face the same resistance with AI. Whether it is concern regarding confidentiality or the fear of losing control over decision-making, the fear of losing control deters many from grappling with – or even testing – the opportunities and challenges of AI. As mediators, we have the opportunity to manage risks and navigate deep-seated disputes, not just avoid or ignore them.
Design Thinking: Understanding the User Experience
To innovate, mediators might think from a designer’s perspective. Design thinking isn’t just about making a shiny new app; it is about deeply understanding the “user’s experience” (the parties) and identifying their “pain points.”
In the mediation room, the user’s experience is often defined by frustration, high costs, and emotional exhaustion. Design thinking asks: How can we use technology to solve those specific pain points? Alyson shared how she encourages students to use AI to practice the “basics”—the very skills that take a lifetime to master:
- Practicing Open-Ended Questions: Students use AI bots to simulate a conversation where the AI flags them if they ask a question that is too closed or leading.
- Uncovering Interests: Using AI to set up training simulations where the goal isn’t to “settle,” but to peel back the layers of a party’s position.
If AI can help a student find their “middle voice” in a low-stakes environment, imagine what it can do for an experienced mediator seeking to refine their craft.
The Entrepreneurial Spirit in the Room
Many mediators, especially solo practitioners and those starting ADR as a first career, are already entrepreneurs by necessity. They have used innovation to build their businesses, find cases, and manage their calendars. However, that creativity often stops at the door of the session itself.
Alyson challenges us to bring that same innovation to the mediation process. This doesn’t mean letting a bot decide the outcome. It means using technology to support the mediator’s awareness. Mediators might consider using AI for the following:
- Asynchronous Intake: Using video tools to allow parties to share their stories before they ever get into the room, saving the “live” time for deep problem-solving.
- Sentiment and Pacing Analysis: Using tools that can signal to a mediator when the tone of a party’s voice or the pacing of their words has shifted, acting as a “second set of eyes” on the emotional temperature of the room.
Guardrails and Institutions
We recognize that innovation looks different depending on your practice. For mediators on an institutional roster like those with the American Arbitration Association (AAA), the “guardrails” of ethics and standards are often provided internally. These institutions are already developing AI tools that protect mediator standards while pushing the envelope.
For the solo practitioner, the guardrails must be external. This means leaning on mentors, attending workshops, and engaging in the “reflective practice” we so often preach. Before you implement a new tool, talk to a colleague. Ask: Does this tool enhance, maintain, or diminish the self-determination of the parties? Does it protect the confidentiality of the session?
A Call to Problem-Solve the System
The legal system is notoriously antiquated. It is often a “pain point” in and of itself for the general public. As mediators, we are the bridge between the rigid world of the law and the human world of conflict resolution.
If we remain rigidly fixed to an institutionalized view of what mediation should look like, we fail to provide parties with the best possible process. The next generation of law students, mediators, and mediation participants are “digital natives.” They aren’t afraid of technology or AI and are often shocked when professionals don’t explore or take advantage of these tools. Digital natives already leverage technology, data, and AI to enhance their own empathy, knowledge, and efficiency.
Dispute resolution practitioners must follow their lead. With respect to AI and technology, be intentional about how (not simply whether) tools can enhance your practice, while acknowledging that you don’t have – and don’t need to have – all of the answers. After all, we are all learning together.
Innovation is not about replacing the mediator; it is about augmenting the mediator. By adopting a design-thinking mindset, we can meet the technology where it is and use it to better serve our society and communities. Mediation and AI are not incompatible. AI can complement a mediator’s skillset – as partners in the pursuit of a more effective, efficient, and human-centric justice system.
