Is Technology Now the ‘3rd Party’ or ‘4th Party’ in Dispute Resolution?

Utilizing traditional “ADR” nomenclature, we, as a mediation field, commonly speak of “a 1st Party” and “a 2^nd Party,” with a mediator or arbitrator being the intervening “3^rd Party.”  I have no problem with this nomenclature historically.  It almost seems like mediators and arbitrators being available “3^rd” Parties was included in the Bible. 

However, things have changed, and they are about to dramatically change far more and more quickly with the integration of AI (artificial intelligence) into the mediation process.  In fact, I am wondering whether we need to further consider whether there is “a new third party in town” . . . possibly even, dare I say it, pushing mediators and arbitrators to the “fourth spot” (to the extent we utilize chronology to understand dispute resolution systems).

As originally and capably expressed by Ethan Katsh, online dispute resolution technologies cumulatively have already been recognized as the “4th Party” in today’s common online or hybrid (online and face-to-face) dispute resolution processes.  And so, even if the reader is prepared to quibble with my next analysis, I note that “ODR” (online dispute resolution) is already both accepted and recognized, “at worst,” as the “4^th Party.”  So, at most, I am simply suggesting that we as a field consider “re-ranking” things, rather simply moving technology and ODR to the “3^rd Party” spot, and move our (sometimes relevant) capable human assistance as mediators to the “4^th” spot.  OMG!  Am I unintentionally “dissing” the entire mediation field (if not ADR profession).  The answer is “no,” at least not in this article.

I like to think and say that “there is some measure of positive intention behind all behavior,” so what in the world is my “positive intention” here?  The answer is simple, chronology.  Today’s new reality, and surely tomorrow’s reality, is that our online environments are now beginning to deeply help people to sort out their disputes even before human professional assistance is actually engaged!

The online environment already serves nearly every professional ADR professional and program in multiple ways.  Practitioners and programs are commonly found online, are able to effectively convey both professional and process information, including contact, scheduling, sharing documents, online caucus and joint meetings, payment, on and on. 

Critically, I note that the online environment is now nearly 100% utilized for “Intake” and “Contact” submissions.  These submissions, and our increasing automated responses to them, using the full powers of AI and “chatbots” are already changing how mediators are doing business.  See AI at Mediate.com. 

Historically, our mediation “intake” was simply a matter of getting contact information, perhaps with a minimal understanding of what the situation is about.  What we are now seeing, with the rapid integration of ChatGPT and other AI platforms, is that the “Intake process” is now being helpfully expanded by “chatbot” capacities to have additional helpful “discussions” with the submitting participant (often during the evening or on a weekend). 

The “chatbot” can effectively express having “heard” the participant, provide a measure of (calculated) empathy, and likely offer additional more focused questions, possibly in time providing empowering educational resources, perhaps even a private assessment of their leading options and, possibly, offering suggestions for most constructively moving forward.

In fact, in many predictable fact-pattern areas, e.g., Ecommerce, landlord tenant, property tax disputes, small claims, the experience to date is that we can resolve 70-90% of certain dispute categories WITH NO HUMAN INTERVENTION whatsoever!  So, if I may ask, is there a “4^th Party” if there is no “3^rd Party?”

Now, to the extent that technology alone is not capable of facilitating full resolution, and human assistance is in fact desired, won’t it be wonderfully helpful and convenient for our online system to bundle communications to date (of course with full permissions and confidentiality understandings) so that a mediator (or mediators) can be swiftly brought up to speed in terms of situational background, participant interests, solution possibilities, agreements to date, desired additional information, and the like.  This means that the mediation process will have the chance to demonstrate how it is an infinitely flexible process, where we can intersect with and most capably assist existing online discussions to help people both “move down the field” and “get across the goal line.”

How cool will it be when the online robot not only sends us, as mediator, a phenomenal summary of the situation, who we will be working with, how they see things, their interests, identified options to date, identified agreements to date and, NOW GET THIS, the AI magic machine can also send to the mediator SUGGESTIONS FOR MAKING ADDITIONAL PROGRESS (or the like).

Folks, I know that we are talking about “change,” and I know that there is a tendency for some to, at least some of the time “professionally” resist change, but this is NOT the time to resist what is happening with AI!  This is the time to embrace AI and use it as a mediator to get more and better developed cases.  Anything we can do to make mediation services more focused, more efficient, and more affordable is going to dramatically help us to grow our cherished empowering process wherein participants (the “1^st and 2rd Parties”) get to call the shots. 

Mediation has long been THE ONE ADR PROCESS focused on “optimization” (or maximation) of both participants’ process experience and substantive results.  We are now getting AI tools that will allow us to do this far better, more efficiently and more affordably. 

Now, in terms of “the system” coming to offer more and more empowering AI support, I note how wonderful the mediation process is, with its infinite flexibility, in terms of dovetailing with technologic support, all toward optimizing participant substantive satisfaction and perceptions of fairness. 

And so, as my “closing argument,” I offer my impression that “Technology,” heretofore known to the worlds of ADR and ODR as the “4^th Party” is, in reality, at least in terms of chronology, far more often the “3^rd” party to dispute resolution. Further, AI will soon commonly and capably assist parties to make progress toward resolution, if not accomplish a full solution, all while we hard working and humble mediators get more good nights’ of sleep and/or occasionally spring for a cherished mid-day nap.

I rest my case.

                       

James Melamed, J.D.

Jim Melamed co-founded Mediate.com in 1996 along with John Helie and served as CEO of Mediate.com through June 2020 (25 years).  Jim is currently Board Chair and General Counsel for Resourceful Internet Solutions, Inc. (RIS), home to Mediate.com, Arbitrate.com, ODR.com and other leading dispute resolution sites. During Jim's 25-year tenure,… MORE >