[This post has been authored by Samarth Srivastava, a 3rd year student at the West Bengal National University of Juridical Sciences.]
In the 21st Century, almost all routine, manual jobs like manufacturing and driving may become automated. Simultaneously, the potential of Artificial Intelligence (AI) is expected to grow, and these changes will be felt in the legal sector as well. In 2016, a report by Deloitte UK estimated that 39% per cent of jobs in the legal sector may be automated in the next ten years and that the industry will undergo profound reforms. One field in which AI has had a significant impact recently is Alternative Dispute Resolution (ADR), specifically when disputes are filed and resolved online (hereafter ODR). With respect to ODR, AI has made the resolution process faster by making the filing of claims more convenient, and by improving the process of human decision-making.
In this essay, the author attempts to answer three questions concerning the role of AI in ODR: Is it expected to supplement or supplant the human element involved in dispute resolution? What are the ethical implications of having an algorithm resolve disputes, and how does the presence of ADR professionals solves this problem? Additionally, as COVID-19 spreads across the globe, and work-from-home and social distancing is being emphasized, what does the future hold for ODR?
AI’s Impact on Online Dispute Resolution
In recent years, automation and AI have profoundly influenced the legal profession in general. According to experts, while there will always be room for lawyers offering creative solutions for complex problems. However, basic tasks like document review, routine responses and filing are becoming automated, and these changes shall become mainstream in the coming years. In recent years, AI platforms which can detect patterns in contracts, flagging the issues which do not fit with a company’s policy have emerged, thereby making their review and approval processes faster. Other systems, such as Cambridge University’s ‘Case Cruncher Alpha’, can review and predict the outcome of cases, faster and more accurately than professional litigators. These tools will lead to a decrease in the demand for lawyers and other legal professionals (paralegals and secretaries). Law firms, as well as corporate legal departments, will have to consolidate to account for these changes.
Automation and AI have also gained traction in the field of ODR and are challenging presumptions about whether an algorithm will be able to replace human interaction and decision-making. On one end of the spectrum, there are online court systems and digital mediation platforms. These online platforms have made ADR a more viable option for all parties involved by connecting parties in need of mediators with qualified professionals. They also process claims much faster and have made the filing process more convenient, by providing them with forms which guide them through the transaction.
However, at the far end is the world of big data and AI, with companies such as Google willing to harness the vast data potential of ODR platforms. The most conclusive evidence of how far AI has come along was evinced in the ‘Brexit’ negotiations between the UK and the European Union, in which ‘SmartSettle’, the AI negotiation system, played a vital role. The system worked by providing ‘ideal world’ solutions to each party on a common set of problems, allowing them to chart out their own ‘ideal world’ (meaning unacceptable to the other party) position on various issues. Then the parties negotiated a series of trades, and the system allowed each party to see the impact of what they were trading on all parties involved. It allowed the parties to chart out their BATNA/WATNA (Best/Worst Alternative to a Negotiated Agreement), thus helping them reach a position where each party could derive some benefits in the transaction. With such advances in AI during our lifetimes, and the theory that the processing power of a computer keeps improving every two years (Moore’s law), the author believes that it is possible that an AI-driven ODR platform, which is better at resolving disputes than humans may entirely replace human professionals.
Role of Lawyers in ensuring Trustworthiness of ODR
Although the proficiency of AI has proved that sooner or later they can take over the ODR process, they are not immune from politics. As a rule, the general public tends to have deep misgivings about AI, and allegations of bias and rigging could arise against ODR as well. However, given the pace of technological improvement, ODR will become a cheaper and better alternative to hiring professionals. Therefore, if a big enough disruption comes along on the ADR scene, a la Amazon or Uber improving upon functionalities, costs, and user experience, then clients would prefer to shift their attention.
Clients care about their bottom line, and that is what influences them when choosing a service. Therefore, if parties choose to use an ODR platform which runs on AI to settle their disputes, one party may bear all the costs of using the service, or they may choose to share the costs, or there may be a different model. Furthermore, it is difficult for clients to decide between different methods of dispute resolution relevant for the dispute at hand and whether the platform they are using is fair and impartial. Therefore, a competent lawyer must assist them through the process of choosing the right platform for their disputes.
Additionally, without competent representation, due process and fairness concerns may arise in ODR to compound apprehensions of a biased algorithm or one which incorrectly applies the law. This is because the same ethical code which binds lawyers does not apply to ODR platforms and AI-driven systems. The inefficiencies, errors and biases which are present in an algorithm can be hidden behind a sleek user interface. Therefore, anticipating the likelihood of an ODR service providing inadequate or wrong output, the client must be represented by an ADR professional adept in tackling these circumstances.
Furthermore, an algorithm’s primary objective is to produce a decision to the dispute rather than educating the users about the underlying decision-making process. This lack of clarity may create a disparity between the experienced and the beginners.
Regarding enforceability, it is still unclear as to how awards made by ODR platforms could be recognized and enforced by local authorities. For instance, there is debate over whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CEFAA) applies to online arbitral awards, because of concerns around electronic recordings, digital signatures, and certification coming up from time-to-time. Furthermore, the terms of service or license agreement of an ODR platform could require a client to submit to specific procedures as the exclusive means for dispute resolution, and the client might accept such user agreements with little or no informed consent.
Lastly, ODR providers retain sensitive communications, personally identifiable information, attorney work product, and other records. Therefore, they must comply with local privacy statutes and the client should be able to enforce confidentiality and privilege rights against the platform. In such situations, the role of ADR professionals changes from facilitators to judges, who have to consider these critical issues and make a decision.
The post-COVID Future of Dispute Resolution
The world changed radically in the year 2019-20 when COVID-19 (hereafter ‘coronavirus’) wreaked havoc on the global population. Now, as social distancing and work-from-home have become the new normal, the world has reached the tipping point from where businesses across all sectors will explore efficient alternatives to human labour. There is a renewed push for automation of the workforce, and investment in AI to supplement humans in specialist sectors such as medicine and law will increase.
While living with the coronavirus, the conduct of trials and judicial processes must also evolve to meet the challenge. Such global crises engender instability and panic; these, in turn, generate disputes. Consequently, the need for dispute resolution will all but abate.
As the investment in AI and ODR platforms increases post the coronavirus pandemic, ODR may become synonymous with dispute resolution. However, as discussed above, even if the ODR platforms take centre stage, there is no doubt that the presence of human professionals will be necessary in order to ensure trust in these systems. Furthermore, we will have to expeditiously resolve the ethical and privacy deficiencies in ODR algorithms. Therefore, the ADR professionals would act as advisers on how to make these platforms more user-friendly.
In the coming decades, the main challenge for multinational corporations would be to automate processes to remain cost efficient. Simultaneously, governments will have to work with the corporations to rehabilitate the displaced workers and allow their transition into the new workforce. The test for people involved in professions such as medicine and law would be to augment their skills with AI. Therefore, human mediators and negotiators would have to adapt and reinvent themselves and ensure that ADR does not become an old episode on the road to ODR.
 ANDREW YANG, THE WAR ON NORMAL PEOPLE: THE TRUTH ABOUT AMERICA’S DISAPPEARING JOBS AND WHY UNIVERSAL BASIC INCOME IS OUR FUTURE 38(2018).
 Supra note 1.
 Suzanne Van Arsdale, User Protection in Online Dispute Resolution, 21 Harv. Negot. L.Rev. 123 (2015).
 Id., 123.
 Id., 124.
 Bashar H. Malkawi, Online Alternative Dispute Resolution and Transparency, 2 Contemp. Asia Arb. J. 101,110 (2009).
 Supra note 16, 127.
 Rafal Morek, The Regulatory Framework for Online Dispute Resolution: A
Critical View, 38 U. TOL. L. REV. 163, 188-89 (2006).
 Supra note 5, 128.
 Supra note 8, 111.
 Supra note 5, 129.
 Id., 130