Agreement to Mediate That Incorporates Artificial Intelligence (AI) Use

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Introduction:

The following Agreement to Mediate updates previous iterations by directly addressing the use of Artificial Intelligence in mediation for both administrative and substantive functions. As to administrative AI (contact, intake, scheduling, payment and the like) the key issue is that the mediator is careful to never disclose mediation participants’ personal identifying information (PII). As to the use of AI to help Participants jointly and/or individually consider substantive issues in the mediation, the key for the mediator is “transparency.”

Ultimately, artificial intelligence (AI) is a tremendous gift to the mediation movement in terms of assisting in Participant empowerment (assisting them to be better informed) and problem-solving optimization. For example, AI can help mediators and participants as an idea generator, including understanding what solutions have worked best for similarly situated others.

Given the power, speed, affordability and accessibility of AI, it would be a huge mistake for the mediation field to not constructively embrace the use of AI. AI is now “the air we breathe.” Critical in this regard is mediators further clarifying how the use of AI in mediation does not jeopardize the overall confidentiality of mediation discussions.

Finally, this new Agreement to Mediate embraces payment options of both “Project Mediation” where Participants pay a set fee for “up to” a designated number of hours of mediation assistance; or more traditional “Hourly Fee Mediation.” With Covid and the dramatic shift of mediation to be “online mediation,” we are finding that online users generally prefer “guaranteed fee mediation,” hence the new “Project Mediation” provisions below.

I hope that this model Agreement to Mediate Incorporating AI is helpful. Please send along your suggestions for further improvement to the author at [email protected].

Agreement to Mediate
That Incorporates Artificial Intelligence (AI) Use

This is an Agreement between ________ and _________, hereinafter “Participants,” and ________, hereinafter “mediator,” to enter into mediation with the intent of resolving issues related to: ___________________________________.

The Participants and the mediator understand and agree as follows:

1. Nature of Mediation

The Participants hereby appoint __________ as mediator for their negotiations.  Participants understand that mediation is an agreement-reaching process in which the mediator assists participants to reach agreement in a collaborative, consensual and informed manner.

It is understood that the mediator has no power whatsoever to decide any disputed issues for the Participants. Participants further understand that mediation is not a substitute for independent legal advice. Participants understand that they are encouraged to secure such advice throughout the mediation process and are strongly advised to obtain independent legal review of any mediated agreement before signing that agreement.

Participants also understand that the mediator’s objective is to facilitate Participants themselves reaching an informed and constructive agreement.  Participants understand that the mediator has an obligation to work on behalf of each party impartially and fully and that the mediator cannot render individual legal advice to any party, and will also not render therapy within the mediation. 

NEW:
Use of AI in Mediation on Substantive Issues

The mediator may utilize artificial intelligence (AI) prompting suggestions with Participants, jointly and/or individually, in the interest of assisting Participants to be best informed and best able to pursue optimizing mutually acceptable solutions.

2. Scope of Mediation

Participants understand that it is for the Participants, with the mediator’s concurrence, to determine the scope of the mediation process.

3. Mediation Is Voluntary

Participants here state their good faith intention to complete their mediation with an agreement. It is, however, understood that any party may withdraw from or suspend the mediation at any time and for any reason.

Participants also understand that the mediator may suspend or terminate the mediation if s/he feels that the mediation will lead to an unjust or unreasonable result, if the mediator feels that an impasse has been reached, or if the mediator determines that s/he can no longer effectively perform his/her facilitative role.

4. Confidentiality

It is understood between the participants and the mediator that the mediation will be strictly and fully confidential. As such, all mediation discussions, including all written, oral and digital communications with both participants and their advisors, any and all artificial intelligence (AI) consultation by the mediator and/or parties, any draft resolutions, and any unsigned mediated agreements shall not be admissible in any court proceeding. Only a mediated agreement, signed by all Participants, may be so admissible. The participants further agree to not call the mediator to testify concerning the mediation nor to provide any materials from the mediation in any court proceeding between the participants. The mediation is considered by the participants and the mediator as settlement negotiations. The participants understand the mediator has an ethical responsibility to break confidentiality if s/he suspects a party or another person may be in danger of physical harm.

NEW:
Confidential Artificial Intelligence (AI) Use in Mediation Generally

The parties and the mediator acknowledge that artificial intelligence (“AI”) tools may be used in connection with the mediation for administrative and/or substantive support purposes, including (by way of example) scheduling, document organization, note assistance, drafting support, issue identification, communication facilitation, or other mediation-related functions.

By signing this Agreement, the parties and the mediator agree that any and all such AI-assisted activity, and any information shared with or generated through such AI tools in connection with the mediation, shall be treated as mediation communications and shall remain confidential to the fullest extent permitted by applicable law, the mediation agreement, and any governing mediation confidentiality statutes or rules.

The parties further agree that the use of AI tools in connection with the mediation does not constitute a waiver of mediation confidentiality, privilege, or admissibility protections, and that any outputs generated through such tools are subject to the same confidentiality protections as all other mediation communications.

NEW:
Mediator Use of AI for Administrative Functions

It is anticipated that mediators will increasingly be utilizing AI platforms for intake, scheduling, payment and other administrative (non-substantive) functions.  The key for the mediator relative to AI administrative assistance is for the mediator to do everything possible to ensure that Participants’ personal identifying information (PII) is not shared with the broader Internet nor any AI platform (such as ChatGPT, Gemini, Claude), nor in any other way shared with the broader Internet. Meeting this challenge means that mediators must individually stay current with AI platform performances and reviews.  Should a breach of PII take place, for whatever reason, the mediator owes Participants full and prompt disclosure and best efforts to minimize any issues.

NEW:
Confidential Zoom “AI Companion” Use in Mediation

Participants’ mediation may be conducted in whole or in part using the Zoom or another online video-conferencing platform. In using such a platform, including the artificial intelligence features of such platform, Participants acknowledge and agree to the following:

NEW:
Audio and Video Online Participation

The mediation sessions may involve live audio and video communication through Zoom or another online video-conferencing platform. No party may independently record the mediation without the express consent of all other Participants and the mediator.

NEW:
Recording, Transcripts, and Session Summaries

With the knowledge and consent of Participants, the mediator may utilize Zoom or other platform features, including Zoom’s AI Companion or similar tools, to create temporary audio and/or video recordings for the limited purposes of generating a written transcript, session summary and/or action items to assist in the orderly conduct of the mediation. Such meeting materials are intended solely as internal mediation aids and do not constitute a verbatim record, agreement, nor official memorandum unless expressly designated as such by the mediator and Participants.

NEW:
Confidentiality and Limited Use

Any recordings, transcripts, summaries, or action items generated through Zoom or another online platform, including AI-assisted features, shall be treated as confidential mediation communications and shall not be disclosed to any person or entity outside the mediation process except as required by law or expressly agreed by all parties.

NEW:
Data Retention and Deletion. 

All Zoom or other platform recordings, transcripts, summaries, action items, and related AI-generated data associated with the mediation shall be permanently deleted by the Mediator within __ hours following their creation, and shall not be retained, reused, or incorporated into any other system or dataset.

NEW:
No Substantive Evaluation by Online Meeting Platform 

Zoom and any other AI-assisted platform feature shall not be used to analyze, evaluate, or provide opinions regarding the merits of the dispute, the positions of the parties, nor potential contested outcomes. The mediator retains sole responsibility for all mediation judgments and interventions, including possible suggested joint AI prompts for all Participants and/or individual suggested AI prompts for individual Participants as part of  individual confidential caucus discussions.

5. Full Disclosure

Each party agrees to fully and honestly disclose all relevant information and writings as requested by the mediator and all information requested by any other party of the mediation if the mediator determines that the disclosure is relevant to the mediation discussions.

6. Mediator Impartiality

The participants understand that the mediator must remain impartial throughout and after the mediation process. Thus, the mediator shall not champion the interests of any party over another in the mediation nor in any court or other proceeding. The participants agree that the mediator may discuss the participants’ mediation process with any attorney any party may retain as individual counsel. The mediator will provide copies of correspondence, draft agreements, and written documentation to independent legal counsel at a Participant’s request. The mediator may communicate separately with an individual mediating party, in which case such “caucus” discussions shall be confidential between the mediator and the individual mediating party unless they agree otherwise in writing.

7. Litigation

The participants agree to refrain from pre-emptive maneuvers and adversarial legal proceedings (except in the case of an emergency necessitating such action) while actively engaged in the mediation process.

8. Mediation Fees

The Participants and the mediator agree that the fee for the mediator may be on either a project or hourly basis.

NEW:
Mediation Fees on a Project Basis

For mediation on a “project basis,” the mediator is prepared to commit up to __ total hours to fully resolve this matter for a total mediation cost of $______.  In this context, the mediator will also provide at least a one hour “warning” before the total described hours have been exhausted.  If desired by all Participants and the mediator, the mediation can proceed beyond the agreed-upon total at an hourly rate of $____ to the mediator, with each Participant to pay one-half of any such additional mediation fees.

NEW:
Mediation Fees on an Hourly Basis

The Participants and the mediator agree that the fee for the mediator shall be $____ per hour for time spent with the participants together or respectively, and for time required to study documents, research issues, correspond, telephone call, prepare draft and final agreements, and do such other things as may be reasonably necessary to facilitate the participants’ reaching full agreement.

Participants further understand that the mediator shall be reimbursed for all expenses incurred as a part of the mediation process. A deposit payment of $______ toward the mediator’s fees and expenses shall be paid to the mediator along with the signing of this agreement. Any unearned amount of this deposit fee will be refunded to the participants. Unless agreed in writing otherwise, Participants shall be jointly, severally and equally liable for the mediator’s fees and expenses.

Participants will be provided with a monthly accounting of fees and expenses by the mediator. Payment of hourly fees and expenses is due to the mediator no later than __ days following the date of such billing, unless otherwise agreed in writing.

Should payment not be timely made, the mediator may, at his/her sole discretion, stop all work on behalf of the participants, including the drafting and/or distribution of the participants’ agreement, and withdraw from the mediation.

Dated this ____ day of ________, 2026

Participant and Mediator Signatures