By Jacob Ganya.
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ABSTRACT.
Artificial Intelligence has been utilized in different aspects of professionalism, but is rarely being heard of in the legal aspect. The purpose of this long essay is to analyze the position of Artificial Intelligence in Alternative Dispute Resolution. It would be giving insight on both terms (Artificial Intelligence and Alternative Dispute Resolution), and a brief assessment on how AI aids in revolutionizing the ADR (the legal profession).
Keywords: Artificial Intelligence, Alternative Dispute Resolution, and Online Dispute Resolution.
INTRODUCTION.
Artificial Intelligence, AI, has aided the transformation and revolutionization of various aspects of life. We have areas like; Medical Sciences, Air Transport, Banking and Finance, and so forth. Alternative Dispute Resolution is an aspect of law that has provided a seamless, less costly, time conservative, and effective way of resolving disputes between individuals, rather than taking it to court.
To understand this article, it is imperative to have a basic knowledge of AI (Artificial Intelligence) and ADR (Alternative Dispute Resolution). I shall begin with analyzing these two terms before going to the focal point of discussion.
ARTIFICIAL INTELLIGENCE.
Artificial intelligence (AI) is the theory and development of computer systems capable of performing tasks that historically required human intelligence, such as recognizing speech, making decisions, and identifying patterns.[1] It is the intelligence of machines or software, as opposed to the intelligence of humans or animals.
Artificial Intelligence is probably the most complex and astounding creations of humanity yet. And that is disregarding the fact that the field remains largely unexplored, which means that every amazing AI application that we see today represents merely the tip of the AI iceberg, as it were.[2] It is a diverse field of study in computer science which develops and studies intelligent machines. It may also refer to the intelligent machines themselves. AI is an umbrella term that encompasses a wide variety of technologies, including machine learning, deep learning, and natural language processing (NLP).[3] It is the ability of machines to perform tasks that normally require human intelligence and reasoning.
Despite the fact that the term is mostly used to represent a variety of different technologies in use today, many disagree on whether these actually constitute artificial intelligence. Instead, some assert that much of the technologies used in the real world today actually constitutes highly advanced machine learning that is simply a first step towards true artificial intelligence, or “general artificial intelligence” GAI. When a large range of individuals use the term AI today, they are referring to a suite of machine learning -powered technologies, such as Chat GPT, Bing AI or computer vision, that enable machines to perform tasks that previously on humans can do like generating written content, steering a car and analyzing data. This is so, even with the controversy or technological disagreement on whether true intelligent machines actually exist.
AI has a plethora of functions i.e. a significant number of uses in society and the world at large. Some of its functions, inter alia, are as follows;
- Natural Language Processing (NLP); AI can be used to analyze, understand, and generate human language. It is used in chatbots, Virtual Assistants, and language translation software.[4]
- Machine Language. AI can be used to train machines to learn from data and improve their performance over time. This technology is used un fraud detection (aiding the financial sector), recommendation systems, and predictive analysis.[5]
- Computer Vision. AI can be used to analyze and interpret visual data from the world around us. This technology is used in facial recognition, object detection, and self-driving cars.
- It aids in problem solving, and so forth.
Artificial Intelligence, just like any other aspect of life, has its upsides and downsides. These are its advantages and disadvantages. It has a range of applications with the potential to transform how we work and our daily lives. These advantages/benefits are as follows;
- Increased personalization of digital services and products.
- Decreased operational cost due to greater efficiency of machines.
- Improved decision-making in certain situations.
- Ability to quickly generate new content, such as text or images.
- Greater accuracy for certain repeatable tasks, such as assembling vehicles or computers, and so forth.
While many of these transformations are exciting they also pose some challenges and dangers. These challenges are as follows;
- Possible cybersecurity concerns.
- Potential for bias or discrimination as a result of data set on which the AI is trained.
- Lack of transparency over how decisions are arrived at, resulting in less optimal solutions.
- Potential to create misinformation, as well as inadvertently violate laws and regulations.
- Job loss due to increased automation, and so forth.
ALTERNATIVE DISPUTE RESOLUTION (ADR).
The term “dispute” is variously defined to mean disagreement.[6] It is where the parties or individuals have different interests. When two or more parties understand that their interests are in contradiction, they begin to act hostile towards each other, or pursue interests through actions that is to the detriment of other parties. It is already an established fact that conflict is inevitable. That which should be considered now, is the method adopted in resolving such conflict/ disputes.
Oguntade JCA (as he then was), in the case of OKPURUWU V. OKPOKAM noted thus:
“In the pre-colonial times and before the advent of our regular courts, our people (Nigerians) certainly had a simple and inexpensive way of adjudicating over disputes between them. They referred them to elders or a body set up for that purpose. The practice has over the years become strongly embedded in the system that they survive today as custom.[7]
The Blacks’ Law Dictionary defines Alternative Dispute Resolution (ADR) as a procedure for settling a dispute by means other than litigation. ADR is a term that describes the various methods used in resolving disputes other than the normal adversarial method of adjudication. Its resolution strategy enables individuals to go beyond their opinions and make objective decisions.
ADR processes are methodologies for resolving these disputes outside courtroom litigation. Rather than a substitute for litigation, it plays a complementary role. It varies in form and content and apart from arbitration, the processes are largely flexible and do not have generally acceptable rules of procedures or even categorization. Each ADR process is tailored towards satisfying the need of the parties based on the circumstances of the dispute.[8]
In Nigeria the major forms of ADR include; Negotiation, Mediation, Conciliation and Arbitration.
Negotiation.
The Blacks’ Law Dictionary defines negotiation as a consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter. It is a process where the parties to a dispute attempt to settle the dispute by themselves, without the intervention of a third party. The parties may be represented by professional negotiators or conduct it themselves.
Negotiation happens in almost every transaction between two or more persons. It is a means to an end and not an end in itself, the end being a mutually beneficial dispute settlement.[9] Negotiation maybe verbal or written down, it can be carried out through various communication methods. Negotiations may also be based on a standard contract or on years of formal and informal information exchange. The agreement may be bounded by well-established conventions or be completely novel.[10]
Abdulsalam Ajetunmobi provided a vivid presentation of the various stages involved in a negotiation process in his book.[11] They are;
STAGE One: Preparation and Orientation.
STAGE Two: Opening Discussion.
STAGE Three: Bargaining-Generating Options and Solutions.
STAGE Four: Closing-Agreement and Final Breakdown.
STAGE Five: Post Negotiation-Implementation.
Mediation.
Mediation is a self-motivated, organized, collaborating process where a nonaligned third party supports disputing parties in resolving conflict through the use of expert communication and negotiation procedures.[12] The mediator here acts as a facilitator in that he manages the interaction between parties and enables open communication, for the outcome or final agreement is decided by the parties.
The parties in dispute and not the mediator, determine the terms of the agreement or final outcome. This is different from conciliation and arbitration. Mediation can be utilized at any point in a dispute, it is advisable to use mediation at the earliest stage of a dispute to avoid dispute escalation. Mediation has developed “to encompass all areas of life, interpersonal, family, communal, educational, occupational, medical, commercial, urban, regional, national, ethnic, international, and environmental”.[13]
Mediation encourages the reinstatement of the relationship of the parties and avoid it being prejudiced by what would appear as a battle before a court or tribunal with power to impose a decision.
In Nigeria today, mediation is a very flexible dispute resolution mechanism for the regulation of mediation is still at the formative stage. The use of mediation is not a must in Nigeria unless there is a vivid provision for mediation in a contract of the parties or the parties have obligated themselves to the use of mediation in a document of appointment of a mediator. In FOLARIN & ANOR v. IDOWU & ORS[14], the CA noted how imperative agreements to engage in mediation and other forms out-of-court settlement is in a contract must be enforced by the courts and will be binding on the parties who have agreed to it.
Order 16 Rule 1 of the Court of Appeal Rules[15] provides as follows:
“At any time before an appeal is set down for hearing, the court may in the appropriate circumstances… refer the appeal to the Court of Appeal M ediation Program; provided that such appeal is of a purely civil nature and relates to liquidated money demand, matrimonial causes, child custody or such other matter as may be mutually agreed by the parties”.
The Stages of Mediation given by Abdulsalam Ajetunmobi[16] are as follows;
Stage One: Introduction
Stage Two: Opening Remarks.
Stage Three: Private Caucus Session.
Stage Four: Joint Session.
Stage Five: Settlement Agreement or Final Breakdown.
Conciliation.
Conciliation is a confidential, voluntary and private dispute resolution process in which a neutral person helps the parties to reach a negotiated settlement.[17] Conciliation is an alternative dispute resolution (ADR) process that differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award.
In Nigeria, conciliation is recognized by the Arbitration and Conciliation Act. Under the Act, the word ‘conciliation’ is not defined. The Act merely provides that the parties to any agreement may seek amicable settlement of any dispute in relation to the agreement by conciliation.
Conciliators are usually recognized experts in the field of dispute and are empowered to suggest or give advice on likely settlement terms.[18] They also do not possess determinative powers. Conciliation is known to be less formal than arbitration. The conciliator can be appointed by any party. One conciliator is preferred but two or three are also allowed. Where there are multiple conciliators, all of them must act jointly. If a party does not accept an offer to conciliate, there can be no conciliation.
Arbitration.
Arbitration, according to the Blacks’ Law Dictionary is defined as a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding. Halsbury’s Laws of England[19], defines it thus;
An Arbitration is the reference involving one or more neutral third parties who are agreed to by the disputing parties for determination, after hearing both sides in a judicial manner, by a person or persons other than in court of competent jurisdiction.
Arbitration is a dispute resolution mechanism which is private and held pursuant to an agreement between two or more parties who agree to be bound by the decision of the arbitrator after a fair hearing, such decision being enforceable at law.[20]
The Arbitration and Conciliation Act is the main Nigerian statute concerned with Arbitration. Section 1(1) provides that all arbitration agreement must be in writing and must satisfy the normal legal requirement of a contract. For this reason, an arbitration agreement creates a legally binding duty to arbitrate and any suit in contradiction to the agreement to arbitration can be set aside.
Where a party to an arbitration agreement commences an action in court with respect to any matter that is subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance or before delivering any pleadings or taking any other steps on the proceedings, apply to the court for an order of stay of proceedings. If the court is satisfied that there is no reason why the matter should not be referred to arbitration in accordance with the arbitration agreement and that the applicant is still willing and ready to submit to arbitration, the court shall order a stay of proceedings.[21]
The procedure for appointment of an arbitrator is provided in Section 7 of the Arbitration and Conciliation Act. The Act also sets out the condition for a valid consideration agreement. The conditions are as follows:
- It must be in respect of a dispute capable of being settled by arbitration under the laws of Nigeria.
- The parties to the arbitration agreement must have legal capacity under the law applicable to them.
- The arbitration agreement must be valid under law to which the parties have subjected it ir under the laws of Nigeria.
The principle of fair hearing shall be adhered to in any arbitral proceedings. For the rule of natural justice, equity and equality of parties is central to the proceedings of any tribunal. Each party must be given an equal treatment and full opportunity of presenting his case.
ONLINE DISPUTE RESOLUTION (ODR).
Online Dispute Resolution as the name implies is the technological means of settling dispute between parties. It is the resolution of disputes, particularly small and medium-value cases, using digital technology and techniques of Alternate Dispute Resolution (ADR), such as negotiation, mediation, and arbitration.[22] ODR was initially used in commercial settings, such as disagreements between buyers and sellers on websites like eBay. In recent years, however, it has been adopted by courts to assist in processing cases.[23] It aids in saving time and cost, as it also provides effective resolutions. Rather than spending money and wasting time going through the rigorous process of court hearing, ODR provides a platform where the matter can be effectively resolved within less amount of time and cost.
ODR was born from the synergy between ADR and ICT, as a method for resolving disputes that were arising online, and for which traditional means of dispute resolution were inefficient or unavailable.[24] The inauguration of ICT into Alternative Dispute Resolution brought about the existence of Online Dispute Resolution and with the growth of ODR, one can see that the line separating disputes settled online and offline is a thin one. Some commentators have defined ODR exclusively as the use of ADR assisted principally with ICT tools and approaching it from a logical perspective one can agree with the definition. The settlement of dispute online is basically the normal ADR methods (Negotiation, Mediation, Conciliation, and Arbitration) that are being carried out online.
ODR was utilized to a large extent during the Covid-19 pandemic as disputes were being settled on the web. The effect of the pandemic was on a global level, for countries were made declare a state of emergency and go on lockdown which put a pause to the physical operation of several aspects of life. With the closure of courthouses and other public facilities, virtual options were being considered to help keeps cases moving and administer justice.
THE PLACE OF ARTIFICIAL INTELLIGENCE (AI) IN ALTERNATIVE DISPUTE RESOLUTION (ADR).
We have now come to the focal point of discussion where I would explain how the power of Artificial Intelligence can aid Alternative Dispute Resolution.
Alternative Dispute Resolution (ADR) has emerged as a dynamic and adaptive approach to resolving conflicts outside traditional court systems. Mediation, Arbitration, Conciliation and Negotiation are pivotal components of ADR that offer parties involved in disputes a more flexible and collaborative means of settling their differences. In recent times, the infusion of Artificial Intelligence (AI) into the fabric of ADR processes has sparked a revolutionary wave, fundamentally reshaping the landscape of conflict resolution.
AI can be used to supplement and support many dispute resolution processes, including Negotiation, Mediation, Conciliation, and Arbitration. AI can also be used to improve the efficiency of ADR processes. It can be used to analyze large amounts of data and identify patterns that may be relevant to the dispute at hand. This can help parties to better understand the issues involved in the dispute and to develop more effective strategies for resolving it[25]. In addition, AI can be used to help parties to communicate more effectively with each other. For example, AI can be used to translate messages between parties who speak different languages, or to help parties to better understand the cultural differences that may be contributing to the dispute.
Some vital contributions of Artificial Intelligence to Alternative Dispute Resolution are;
Enhancing Efficiency and Expediency.
One of the foremost contributions of AI to ADR lies in its ability to enhance efficiency and expedite the resolution process. AI technologies, such as machine learning algorithms, are adept at handling vast datasets and extracting meaningful insights. This capability proves invaluable in the analysis of complex legal information, aiding parties and mediators in understanding the nuances of the dispute quickly.
Predictive analytics is a powerful tool offered by AI, enabling parties to anticipate possible outcomes based on historical data and patterns. This predictive capability empowers disputants to make more informed decisions about settling or pursuing their case further. In turn, this expedites the ADR process and minimizes the time and resources required for resolution.
Furthermore, the integration of AI in ADR platforms facilitates Online Dispute Resolution (ODR). This technological innovation transcends geographical constraints, making ADR services accessible to a broader spectrum of individuals and businesses. Virtual mediation and arbitration platforms, driven by AI algorithms, enable participants to engage in the resolution process remotely, providing convenience and accessibility.
Facilitating Decision-Making.
AI technologies play a pivotal role in supporting decision-making during ADR proceedings. The vast legal landscape, with its intricate web of statutes, case laws, and precedents, can be overwhelming for human practitioners. AI, through data analysis and machine learning, aids arbitrators and mediators in navigating this complexity with ease.
By sifting through legal databases and identifying relevant patterns, AI contributes to well-informed decision-making. This not only expedites the resolution process but also ensures that decisions are grounded in comprehensive legal analysis. Additionally, AI facilitates the identification of common ground between disputing parties. Analyzing preferences, priorities, and potential areas of compromise, AI-driven systems personalize the negotiation process, increasing the likelihood of reaching mutually agreeable settlements.
CHALLENGES AND ETHICAL CONSIDERATION.
Despite the undeniable benefits, the integration of AI in ADR is not without challenges and ethical considerations. Transparency and accountability are paramount concerns, as the decision-making processes of AI algorithms are often perceived as opaque. Striking the right balance between efficiency and transparency is crucial to maintaining trust in ADR systems.
Bias in AI algorithms is another significant ethical consideration. The algorithms are trained on historical data, which may contain inherent biases. Developers must implement measures to detect and mitigate these biases to ensure fair and impartial outcomes. Additionally, the ethical use of AI in ADR requires continuous scrutiny and updates to adapt to evolving legal and ethical standards.
Some people may be uncomfortable with the idea of using AI to resolve disputes, and may prefer to rely on human judgment instead. In addition, there is a risk that the use of AI could lead to the development of biased algorithms that unfairly favor one party over another.[26]
SOLUTION.
Despite these potential drawbacks, the use of AI in ADR is likely to continue to grow in the coming years. As AI technology continues to improve, it is likely that more and more dispute resolution practitioners will begin to incorporate AI into their practices. This could lead to more efficient and effective dispute resolution processes, and could help to reduce the costs and time associated with resolving disputes.
The incorporation of Artificial Intelligence in Alternative Dispute Resolution marks a significant paradigm shift in the way conflicts are addressed and resolved. The efficiency, accessibility, and decision-making support provided by AI contribute to the effectiveness of ADR methods. As we navigate this intersection of law and technology, it is imperative to address ethical concerns and ensure that AI remains a tool for fostering fair and just outcomes in conflict resolution.
Efforts must be directed toward refining AI algorithms, promoting transparency, and mitigating biases to build a foundation of trust in ADR processes. Responsible AI development is key to maximizing the benefits of technological innovation while upholding the principles of fairness, equity, and justice. In embracing the transformative potential of AI in ADR, we are paving the way for a future where disputes can be resolved more efficiently, collaboratively, and with a heightened commitment to ethical considerations.
In conclusion, we can see that Artificial Intelligence plays an imperative role in Alternative Dispute Resolution and with time and the effect of change it will be of great significance in resolving dispute. For as we well know it, the world is becoming more digital day by day.
[1] https://www.coursera.org/articles/what-is-artificial-intelligence Accessed on 26/12/23.
[2] https://www.forbes.com/sites/cognitiveworld/2019/06/19/7-types-of-artificial-intelligence/?sh=4d5716ea233e .
[3] Ibid.
[4] What Is Artificial Intelligence (AI)? Definition, Types, Goals, Challenges, and Trends in 2022 by Vijay Kanade.
[5]http://www.iswsa.org/what-is-artificial-intelligence-and-how-does-it-function . Accessed on 26/12/23.
[6] Ese Malemi, The Nigerian Legal System, (Princeton and Associates Publishing Co. Ltd, 2021). p.645.
[7] (1998) 4 NWLR Pt 90, 554 at 586.
[8] n (6) p.647.
[9] Ibid.
[10] Abdulsalam Ajetunmobi, Alternative Dispute Resolution & Arbitration in Nigeria, Law, Theory and Practice, (Lagos: Princeton & Associates Publishing Co. Ltd, 2017) p.75.
[11] Ibid.
[12] n (6) p.652.
[13] Christopher W. Moore, The Mediation Process 2003 – Challenges for Growth and Development of Mediation, page 466.
[14] (2013) LPELR-22123 (CA).
[15] Court of Appeal Rules 2011.
[16] Abdulsalam Ajetunmobi, Alternative Dispute Resolution & Arbitration in Nigeria, Law, Theory and Practice, (Lagos: Princeton & Associates Publishing Co. Ltd, 2017) p.93.
[17] Conciliation: Meaning, Procedure and Importance by Curiousforlaw.
[18] Ese Malemi, The Nigerian Legal System, (Princeton and Associates Publishing Co. Ltd, 2021).
[19] Halsbury’s Laws of England, 3rd Edition, Vol. 2, Page 2.
[20]n (6).
[21] Ibid. page 668.
[22] https://byjus.com/free-ias-prep/online-dispute-resolution-india/. Accessed on 03/01/24.
[23] Online Dispute Resolution in the United States (americanbar.org). Accessed on 03/01/24.
[24] E. Katsh, and J. Rifkin, J. Online Dispute Resolution: Resolving Conflicts in Cyberspace (San Francisco, Jossey-Bass, 2001).
[25] Putting the Artificial Intelligence in Alternative Dispute Resolution: How AI Rules Will Become ADR Rules by Ryan Abbott & Brinson S. Elliott.
[26] Ibid.
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