Artificial intelligence will never replace human mediators

Can my work be replaced by artificial intelligence (AI)? Everyone is thinking about what AI can do and when it is appropriate as ChatGPT and other AI platforms grow in popularity.

The legal profession is not exempt from this question nor is the field of mediation in which I work. Although I see some practical uses for AI, such as research or analyzing data, I do not believe a computer can replace a human when it comes to resolving disputes between parties, in general and specifically in a legal context.

Trust is earned

When parties choose a mediator, they look for someone they can trust and respect. In the disputes I am asked to help resolve, it is not uncommon that at least one party has worked with me before or that I have been recommended by others who know me.

Since my call to the Ontario bar in 2002 I have fostered the reputation that my mediation practice is based on. I started at a full-service law firm representing primarily plaintiff litigants and then moved in-house to a large insurance and financial services company. This have given me the perspective of both sides of litigated disputes. Throughout my entire career, I have endeavoured to be a knowledgeable, fair, and effective advocate that people want to work with and whose opinions they value.

Mediation is an emotional process

Most mediators are also litigators with years of practical experience in dispute resolution. An AI platform can “learn” from data but all it can do is manipulate the data it is given. It has no emotional intelligence. It cannot share past experiences, empathize with clients or diffuse heated situations. 

There is an argument that the lack of emotional bias creates a more neutral view. I would argue those same traits make AI heartless and devoid of the human emotion that is part of every legal procedure. Humans are social by nature and mediation is a complex emotional interaction with human connection, analysis and compromise. 

After over 20 years of practice, I have experienced and observed almost all the emotions that come with mediations. Both parties believe their position is sound and fair and there is often resentment, frustration or anger toward the other side. An AI platform cannot pick up on those nuances. 

Only humans have emotional intelligence

Emotional intelligence is the cornerstone of mediation. By reading people, human mediators can help diffuse emotions and allow parties to focus on a solution that is acceptable to both sides.

Any AI platform is only as good as the data it draws on to reach a conclusion. Since all content and programs are created by humans, all AI is arguably flawed with the biases of its creators and data. As Mediate.com has noted, ChatGPT’s “responses may be based on gender, racial and myriad other biases of the internet and society. By changing the context, the statements can even be manipulated. Consequently, ChatGPT does not appear to be entirely independent after all.”

‘The law is not always logical’

The responses from AI platforms are 100 per cent logic-based. The law is not. As the late U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. famously observed, “The life of the law has not been logic: it has been experience.”

With mediation, the issues that need to be resolved between the parties may have nothing to do with the ultimate resolution of the lawsuit. Only humans can provide this analysis and support.

Ethics are a cornerstone of the legal profession and evolve based on social nuance and moral principles. At least at this stage in AI development, a computer platform does not have the ability to understand morality or the human condition. While ChatGPT might be used to write essays or populate legal briefs, it is a long way away (if ever) from replacing humans as mediators, since a cut-and-paste solution is not enough. 

ChatGPT admits its limits

Is an AI platform a better mediator than a human? I asked ChatGPT itself, entering the question, “Will ChatGPT replace human mediators?” 

I received this answer:

“ChatGPT and other AI language models like it have the potential to assist and enhance the work of human mediators in certain contexts, but they are unlikely to fully replace human mediators in many situations.”

Everything new brings a fear of the unknown. I do not believe mediation, like law, will ever be a place where people will want to take the counsel of a computer operating system over a human. While AI might be able to mimic human mediators, it will never be able to replace us.