AI and ADR: Strong Allies or Strange Bedfellows?

Sometimes it’s difficult to assess whether the practice of law has been enhanced or burdened by burgeoning technology. When I entered the profession in the early 1980s, my work as a litigation associate was very different than it is today. We did not have an array of devices to assist us in keeping track of our time or handling our work. I hand wrote my briefs on a yellow legal pad to be typed by my assistant, who would make changes using a memory typewriter. Partners’ comments came in red marker (and ideally there were not too many of those). For documents longer than over 10 pages, I submitted revisions to word processing at night (in the basement) and the revised version would miraculously appear on my desk the next morning. I did my research using actual books in the vast library, where I hauled and then reviewed the hefty Shephard’s volumes to make sure the cases I cited were still good law. If I needed to refer to something in the file, I made my way to the windowless labyrinth where row after row of imposing ceiling-high shelves held client papers. Suffice it to say, we did not have our own computers, laptops, tablets or other devices that may have confined our heavy lifting to the screen. Telephone service and messaging were also very different from what we are accustomed to today. We received our phone messages on small, pink squares of paper. If someone needed us urgently, the firm used a coded paging system, broadcasting a Morse code type sequence of bells to summon you. With these methods of communication, we did not work remotely as the available technology did not support working anywhere except the office.

Against this backdrop, the Wall Street firm where I began my career offered aspiring litigators the opportunity to handle employment arbitrations to gain experience examining and cross-examining witnesses, introducing evidence and making objections. It was a crash course on presenting a case and becoming an effective advocate. In 1982, just a year out of law school, on less than 48 hours’ notice I was ordered to travel cross-country to handle an arbitration. The dispute was brought by a union worker challenging his suspension for violating safety protocols at the client’s manufacturing plant. I boarded the plane with a litigation bag filled with the pleadings, documents and hard copies of the arbitration and evidentiary rules, and a huge knot in my stomach. At my destination, I stayed up all night preparing my opening, witness examinations and exhibits, trying to anticipate objections. Without the internet or access to other information, I was on my own. I remember that the client representatives did not seem very confident when I walked into the arbitration room as their 24-year-old, barely five foot tall advocate—to face off against a more senior adversary before a panel of three imposing arbitrators. Despite the apparent disparities in experience between counsel, we prevailed largely because the client had kept a clear record to justify its actions. What I remember most, 40-plus years later is that the supervising partner complained that I had spent too much time preparing for the hearing!

Imagine how much easier this would have been if I could have relied on modern technology. For example, I could have had all the materials on a laptop rather than lugging hard copies, and research tools would have been at my fingertips. In addition, if I had access to artificial intelligence (AI) or generative AI, I likely would have taken less time to prepare or to complete the post-hearing process. In simple terms, AI refers to a broad range of technology tools that can perform tasks usually performed by human minds, such as learning, reasoning and problem-solving. Generative AI refers to using AI to create new content from existing information and materials.

With those tools at my disposal, I could have used them to synthesize the file, summarize prior testimony, prepare an opening, draft direct and cross-examinations and arguments to address objections. After the hearing, I could have used a platform to draft proposed findings of fact and conclusions of law and a memorandum of law. Of course, to avoid the pitfalls other lawyers have faced, I would need to be sure the law on which the technology relied was actually valid. More often, lawyers are turning to AI and generative AI for a range of tasks that we and other legal professionals used to handle ourselves. The ubiquity of these services has implications for all aspects of our practice, including alternate dispute resolution—impacting both practitioners and neutrals. Given its increasing insinuation into our practice, we have increasing ethical and professional responsibilities to appreciate the benefits and risks of relying on various forms of AI in our arbitration and mediation work. The Pennsylvania Rules of Professional Conduct, states under Rule 1.1 Competence that “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment 8 further explains the expectations that apply particularly to using AI in practice: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” Whether representing a client as an advocate in dispute resolution or serving as a neutral arbitrator or mediator, a lawyer needs to appreciate the risks and rewards of relying upon or assessing the veracity of information gathered or synthesized by AI platforms.

Further, it is no surprise that courts and leading ADR providers are tackling these issues proactively. For example, the American Arbitration International Center for Dispute Resolution (AAA-ICDR) is educating ADR practitioners on the myriad issues associated with using AI in dispute resolution. In 2023 the AAA-ICDR issued its arbitrator guidance on the use of generative AI (arbitrator guidance) emphasizing the importance of arbitrators understanding their obligations with respect to the use of AI including, for example, those set forth in the Code of Ethics for Arbitrators in Commercial Disputes (Code of Ethics) and similar ethical mandates. Of paramount concern under the AAA-ICDR directive is the arbitrator’s duty to verify the accuracy of information they rely upon in reaching decisions. The arbitrator guidance also flags four areas relating to “party expectations and transparency” that arbitrators must respect. These include: confidentiality; competence; fairness; and no delegation of duty to decide. With respect to AI, the duty to maintain confidentiality under Canon IV of the Code of Ethics requires that arbitrators assure that they are not disclosing confidential information in connection with using a technology platform. In connection with summarizing information and legal research derived from an AI service, the arbitrator must assure that the information is correct and consistent with the duty to serve competently. Canon 1 of the Code of Ethics mandates that the arbitrator assures the process is fair relying upon the substance submitted by the parties. In order to preserve fairness, the arbitrator must disclose any information derived from generative AI and assure that the parties have an opportunity to respond. Finally, under Canon V of the Code of Ethics an arbitrator must exercise independent judgment in deciding a matter, cannot delegate that responsibility and must make their own decision even if they rely on input from a generative AI tool.

As recently as April 25, the dispute resolution section of the American Bar Association arbitration committee hosted a presentation on “Evolving Technologies in ADR” addressing the transformative issues raised by using AI in ADR practice as advocates and neutrals to better serve clients. The substance of the program was particularly informative about the ways AI is currently used and the potential enhanced applications for the future. Among other things, the speakers discussed the value of using AI in arbitrator selection, research, document review and synthesis and drafting orders. Of particular importance was the use of AI to support neutrals without usurping the required arbitrator independent assessment and decision making. Also, on May 14, the International Institute for Conflict Prevention & Resolution (CPR) presented “Professional Standards, Ethics, and the Use of AI in Dispute Resolution.”

For those of us engaged in any aspect of alternate dispute resolution, our professional responsibilities compel us to keep abreast of the evolving trends in technology that are having an increasing impact on our practice as advocates and neutrals.

Reprinted with permission from the May 17, 2024  issue of  The Legal Intelligencer. © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.