This article considers the use of technology in the dispute resolution arena from our experts’ first-hand experience. It does not intend to offer a definitive view, but rather to explore how computer-based technology is being implemented now and potentially in the future, and what the possible limitations might be.
Authors: Hooman Baghi and Stuart Holdsworth, Diales Technical Experts
Technology enables legal teams, clients and experts to work collaboratively, and has also impacted the way that they work with their own supporting and assisting teams. Dispute resolution has undoubtedly become more flexible, and the human-machine interface has become more user-friendly as the technology has matured and become more accessible in the industry, including, but not limited to, programme and planning software, and communication tools such as Zoom and MS Teams.
THE IMPLEMENTATION OF TECHNOLOGY DURING COVID-19
Since COVID-19 there has been considerable discussion about the role of technology in the dispute resolution process, including the role of the virtual court and arbitration. Whether or not the adoption of a virtual court was a long-term objective, COVID-19 has made this a practical reality and resulted in technology playing a greater part in many aspects of the dispute resolution process.
COVID-19 restricted the ability for people to meet, and inhibited the usual court process. Computer based technology enabled the court process to be maintained by overcoming the limitations on the movement and congregation of people posed by COVID-19.
International arbitrations benefited the most from technology during the travel ban. This has allowed the legal profession to maintain a dispute resolution service with some form of human interaction, albeit without the emotions of a live court environment.
These transformations are likely to have created efficiencies in terms of time, cost, presentation, and logistics, and may well become a permanent feature of the dispute resolution process as their benefits are fully realised. Some of the software being used in dispute resolution has not been developed specifically for this purpose, but has been adopted from technology developed for other commercial uses which existed prior to COVID-19. This software is utilised alongside other specific software that had been previously developed for the court process.
Only time will tell whether technological advances will continue to be introduced into the dispute resolution process at the same pace as during COVID-19, or whether the court system will revert back to previous ways of working.
ARTIFICIAL INTELLIGENCE IN DISPUTES
It is widely agreed that the courts in general are overburdened, and most disputes take a long time to proceed and resolve. Some papers published concerning machine-developed advanced AI propose replacing humans in the legal system, similar to Online Dispute Resolution (ODR) where the complaints can be automatically logged online, and question whether in the future the AI algorithm will examine the evidence and resolve the issue without any human interaction.
An AI system is likely to be more emotionally objective and give what is considered to be a strictly ‘logical’ outcome, but may miss the subtle nuances that become apparent in a court room and may not be able to accurately replicate the court’s decision-making methodology and reasoning behind the damage awards. It is also difficult to envisage how the cut and thrust of the cross-examination process can be mimicked by the AI process.
In the AI decision-making world, the human interaction, emotion and body language are missing. Some might prefer to avoid the hostile environment of an open court by having an AI resolution, but many will favour the human interaction and emotion it gives.
Although AI may have its limitations when it comes to the judgment process, it can be very helpful in managing large amounts of case data that requires review. Recent advances in AI technology mean that lawyers and practitioners have more sophisticated AI tools at their disposal to rapidly process data and identify relevant information, such as through a sophisticated dictionary that can perform comparative language checks (synonyms, antonyms, etc.,). In the future, it may be possible to narrow the issues by AI processes identifying the points of agreement and disagreement from the data set. However, the outcome of the AI will only be as good as the data set that it is given, and it may not be able to identify missing information that could be critical to the dispute. The security of the system must also be a primary concern to prevent hacking with a desire to skew the outcome.
In summary, assistive technology can provide critical tools to gather and process information for dispute resolution purposes. Assisted technology is currently a useful solution for discovery, helping to reduce costs relating to document searches related to discovery. In time, AI technology may develop and be used for judicial decision-making as legal teams and clients gain confidence in the quality of the decisions through a process of trial and error and appeals that determine to what extent the AI judgment is determinative and binding.
However, AI is currently not mature enough to engage with real-life problems and resolve disputes without any human input. The most difficult issue to resolve using AI is the outcome of the dispute, for which currently no technology seems to exist and is likely to require some sort of self-learning software similar to DeepMind.
It is possible that if the necessary technology can be developed, AI could become useful for low value disputes or disputes requiring a rapid turnaround. When a subject matter of the dispute is highly technical, AI may or may not be able to partially fulfil the role of arbitrators with an appropriate degree of expertise, but the outcome, decision and awards remain the most critical part of the process that currently cannot be relied upon.
VIRTUAL AND AUGMENTED REALITY
There may also be a place in the court or arbitration system for an immersive, 3D environment, such as VR (Virtual Reality) or AR (Augmented Reality), which can be a more engaging way to communicate complex information. Presently, 2D visualisations are generally used. An immersive virtual 3D reality may be more useful in visualising complex issues and explaining them to the court or the tribunal, such as a 3D model of a bridge collapse or other events that have multiple causes. Platforms like Metaverse or Second Life, etc., provide realistic environments for users where they can immerse themselves using VR headsets.
The 3D immersive experience may be the next practical stage in adoption of computer-based technology if this has an advantage over the 2D visualisation process. Although Diales Technical has not yet ventured into using VR such as Metaverse, it is proud to be one of the firms using advanced technology to gather facts and evidence using in-house developed technology to speed up the process. Diales employs computer-based technology in many forms and systems to assist our experts in dispute resolution services.
Originally written as part of the Driver Trett Digest, issue 24. To view the publication, please visit: www.driver-group.com/digest-compendium