When Tech Meets Tact: Envisioning the Mediation of the Future

by Andrew Flake

It was New Year’s Day last year when I first wrote about ChatGPT and the advent of widely-available AI. Since then, even for a time when intertwined technology and new advances are a commonplace, things have moved quickly. There’s a lot to consider, and as we kick off 2024, I’ve been thinking about how technology could shape our mediations. Here are some of those thoughts.

We can start with the mediation space itself. Apart from Zoom and like platforms, is there a place for a “metaverse”-style virtual mediation room? While the promise of virtual reality and augmented reality is certainly there, I don’t see that we necessarily need or want to replace the physical mediation room with a fully digital realm. Setting aside international and multi-locale mediations, when convenience and savings are more of a favor, I think the consensus remains, for those of us who mediate virtually and in-person, that the in-person environment has the edge.

To be clear, as someone who loves technology, works on technology matters, and is always looking out for the newest gadget or upgrade, I’d be happy to don a headset and mediate in the metaverse. But to get there, we’ll need software improvement and platform enhancement far beyond what we have now. Although we’ve come a long way from the early egg-shaped torsos of the Oculus or Nintendo Wii avatars, we need to go further, to a fully immersive environment. Now, holograms? That I can get behind.

“Mediation in the Metaverse.” Rendering created by the author with DALL-E.

More interesting, I think, is to look at party decision-making, and how artificial intelligence (AI) might factor in. It’s no longer science fiction to imagine AI assisting as unbiased facilitator. As a tool, with sufficient training, AI could suggest solutions and additional creative options based on thousands of successful mediation cases or provides real-time feedback to help parties communicate more effectively. Even assuming that kind of database and AI training, though, we will still need our neutrals to guide the process.

We’ll also be seeing emotional intelligence (EI) software. Software can already analyze speech patterns, emotions, and body language, and we could imagine using it to guide the mediation process, interpreting emotional cues and providing mediators with insights into how parties are feeling, perhaps even before they’re fully aware of it themselves. Such technology could offer suggestions to us on how to steer conversations in a more constructive direction.

You might ask, then, whether we will see a fully “digital mediator?” And do we need one? Fellow mediators, breathe easy. My preliminary thought is “no,” on both fronts. We could feed an AI-tool a thousand books on negotiation theory and psychology — a whole library, even — but to think that could supplant a mediator, in my view, is too reductive. So much more is involved in good mediation. It’s one thing to generate good creative solutions that could assist in resolving a dispute – and there, AI will have a role – but it is another to conduct the negotiation and balance the interests and read the room, dealing with emotions and a host of dynamics. What we want is a technology-enabled human mediator.

That means that as the field evolves, so must the training of mediators and of advocates assisting their clients in mediation. We will all need more than ever to be tech-savvy, understanding how to leverage new tools and platforms. And just as importantly, we need to be discussing and carrying forward work on guidelines to ensure the technology we’re discussing, whether AI or other observational and predictive tools, are deployed ethically and responsibly. I’ll be looking and thinking about those, including some excellent efforts already underway, in future posts.

The mediation of the future will be a fascinating pairing and blending of technology with our professional insight and oversight. The key will be finding the right balance, ensuring that technology enhances, rather than replaces, our human and personal connections. Happy 2024!

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