AGC 2019 Echoes (1): AI in ADR: The Changing Face of Dispute Resolution -Funke Aboyade SAN

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Highlights

  • AI in arbitration is no longer an imaginary tale. What once previously lay in the realm of science fiction is everyday reality.
  • The advent of Telepresence will allow callers on conference calls to see life-size images of each other as if they were in the same room. Witnesses, counsel and arbitrators will all be able to speak and listen to the proceedings in their native languages The availability of such services, and the price for them, will be a distinguishing feature of the arbitral institution of the future. Telepresence is already a reality in Nigeria.
  • This advent raises a few questions which bothers on whether AI would be the final decision maker, how courts can intervene to review AI arbitral awards, whether AI would eventually eliminate Arbitrators and many more.
  • There are opportunities as well as threats created by AI in ADR

Opportunities

  1. Technology can shrink and erase the space between far-flung participants in arbitral proceedings.
  1. Virtual assistants help legal teams make quicker and better decisions.
  1. AI can predict the behavioural pattern and attitude of judges and opposing counsel.
  1. An AI Arbitrator would be infinitely more patient.
  1. A new arbitration market for small uncontested claims can suddenly become attractive since the process is expedited.
  1. Awards and procedural orders now published in redacted form can be made accessible in e-format. Availability of precedents will help establish practices and promote uniform standards and predictability of decisions

Threats

  1. Technology can supplement and ultimately replace the reasoning, argument and decision-making capacities of counsel, arbitrators and experts.
  1. Law firms’ billable hours of legal research, document inspection, translations, etc may no longer be accepted by clients who are themselves in the process of implementing AI in their offices. AI can achieve in seconds what it may take a dedicated team of lawyers a month to achieve.
  • Challenges in the Application of AI
  1. Changing Roles
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Arbitrators’ traditional role as professional arbiters will change to dispute resolution engineers. They still must guarantee fairness and integrity, plus protect parties from technologies not compatible with due process.

  1. Ethical and regulatory challenges

Will arbitration institutions become ISPs with attendant special statutory duties regarding personal data and intellectual property? And will they have contractual duties toward parties regarding 24/7 system availability, data integrity and data authenticity?

  1. Online etiquette

Consumer, e-commerce, small insurance claims disputes are regularly mediated online and in some countries – family law. Will there be new standards for arbitrators and parties’ online behaviour?

  1. Legal frameworks

Would new legal frameworks for AI Arbitration have to be considered?

Will AI supplant arbitrators, counsel and experts?

Can the process lead to challenges in national courts at the enforcement stage?

  • The future of arbitration

“It is predicted that computers will be able to serve as fact finder and arbitrator on their own within the next two decades, sifting through applicable law more thoroughly, assessing the credibility of witnesses more accurately and generating more quickly a reasoned and more objective decision that takes into account and cross references all data pertaining to the dispute. ”

“AI arbitrator thus has the potential to directly and significantly improve the quality of decision making, time and cost efficiency.”

  • Recommendation

Our legal framework needs to be adapted for AI adoption

ACA does not specifically refer to an arbitrator as a human being, however it is safe to conclude it never contemplated the advent of the AI Arbitrator

Whereas some sections are human neutral and parties could conceivably make use of AI in choosing procedure, others by their wording suggest otherwise and whose interpretation assumes that the arbitrator is human

  • Conclusion
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AI is here in spite of us, we must not be in denial We must, like other countries, develop national strategies for AI.

Legal framework is needed. We have a growing tech hub we can harness

As lawyers and arbitrators we must acquire AI knowledge and skills

Paper on Artificial Intelligence in ADR: The Changing Face of Dispute Resolution was presented by Funke Aboyade, SAN, MCIArb  the Managing Partner of Aboyade and Co.,

Download paper 

 

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