Selecting a mediator in this new AI era – some hints for junior lawyers
If you are a trainee solicitor, paralegal or newly qualified lawyer, you may have been tasked with finding a mediator. How have the requirements changed in the new era where Artificial Intelligence (“AI”) has infiltrated everything we do? You have probably already experimented with AI already, but have you used it to select a mediator and, if you have done, how reliable were its recommendations? This raises the interesting question:
How is AI likely to have an impact on the mediation process and therefore the selection of a mediator?
That is a question we have been addressing as mediators; and it is just as important for the lawyers who are tasked with preparing a case for mediation and finding suitable mediators.
It is clear that junior lawyers are often involved in the time-consuming tasks of legal research, document review, preparing bundles and chronologies and drafting summaries for mediation. AI now enables some of those tasks to be done more quickly. The other task which often falls to junior members of the team is to find suitable potential mediators.
As AI becomes better at processing information, the mediators who stand out may not be those who simply know about AI but those who understand its potential uses and its inevitable limitations when used by clients and lawyers.
As mediators, we see a developing picture in the papers that we receive. AI can analyse the history of a dispute and may be able to identify risks and generate settlement ideas. But often these analyses and briefings lack focus and judgement and end up being unnecessarily long. Also, since they are restricted to the analysis of existing data, they often end up looking backwards rather than projecting forwards.
Achieving a successful outcome from mediation still depends on finding the key points that will unlock a dispute. During the course of a mediation this is done through building trust, listening, creativity and judgement and helping the parties to identify the future they want to achieve.
And that is a useful thought when you're asked to help identify a suitable mediator for a client. When everything has been analysed, summarised and risk-assessed, what often makes the difference is still the human element.
· The ability to build trust and empathy by good listening.
· The ability to help people have difficult conversations and articulate their own interests and needs.
· The ability to help parties to move from positions towards solutions.
As things stand (and this may change) however much AI is going to be used in preparation it is not currently going to be present in the “mediation room” itself and is therefore not going to be able to make the dynamic judgement
calls on process or strategy that mediations require.
A final thought
When you're asked by a partner, supervisor or client to help identify a suitable mediator, it's easy to focus on credentials, sector knowledge or mediation fees.
Those things matter.
But so do questions such as:
Has this mediator handled disputes like this before?
Are they likely to gain the confidence of these particular parties?
Do they have the right style and approach for the personalities involved?
What type of mediation (e.g. facilitative, workplace, community or commercial) might be the best fit for your dispute?
In addition to all of the above it will, increasingly, be important to identify mediators with an understanding of AI, who recognise its potential and its limitations and can help the parties identify ow it can best be adopted.
Choosing the right mediator can have a significant impact on the quality of the process and the chances of reaching a durable settlement. The use of AI within mediations is going to become an increasingly influential factor.
At ASWM, we bring together experienced mediators with backgrounds in workplace, community, civil and commercial disputes. We require our panel mediators to go above and beyond simple Registered Mediator status with the Civil Mediation Council. They need to demonstrate additional experience.
If you have been tasked with identifying potential mediators for a case, we're happy to discuss the nature of the dispute and suggest mediators whose experience and approach may be a good fit. Have a look at our panels.
You can make an enquiry through the ASWM website here:
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