The Neuroscience of Conflict Resolution: Implications for Modern Mediation Strategies

Alternative Dispute Resolution (ADR) is a recognized means of settling disputes between conflicting parties. The more common mechanism is mediation, where a neutral party is chosen to help disagreeing parties mutually arrive at an acceptable agreement. This is the traditional person-to-person approach and has seen many disputes between individual parties, local governments, international contingents, and states. However, in the recent past, we have seen the incorporation of technology and artificial intelligence (AI) in mediation, which has ultimately changed the dynamics of settling disputes. The advent of machine learning and predictive algorithms has seen the rise of chatbots that are trained to offer data-driven insights and help streamline communication with the parties. We are going to look at the integration of Technology and Artificial Intelligence in mediation practices. We will delve into the intricacies of the use of video conferencing in mediation, the incorporation of lie detectors, and their implications in modern mediation strategies. In so doing, we will also look at the underlying issues with regard to the incorporation of these technologies and propose a possible solution.

Mediation and Technology

Mediation has long been an important method of alternative dispute resolution (ADR). Mediation offers parties the chance to work on their issues and conflicts outside the traditional judicial court systems. For long, Mediation has been heavily reliant on in-person physical meetings. The conflicting parties and mediators worked face-to-face in order to come to mutually beneficial agreements. Needless to say, the advent of technological advancements has revolutionized many aspects of legal practice, and mediation is no exception to this revolution. Recent developments, particularly the use of online video conferencing applications and the introduction of lie detection technologies, have significantly impacted the field of mediation.

The incorporation of these technologies in the field of mediation brings forth the fundamental questions on efficiency, fairness, accessibility, and the protection of core principles such as confidentiality and voluntariness. This part of the article examines the impact of these modern strategies. We will focus mainly on the implications of using online video conferencing platforms in the place of in-person mediation, and the significant role and effects of lie detection technology/ polygraphs in dispute resolution through mediation. Through an analysis of the advantages, disadvantages, and effects of these technologies, this article aims to explore the evolving role of technology in the mediation process within the Kenyan context. We will also look at the integration of AI in mediation practices.

The Use of Online Video Conferencing in Mediation

A Shift from In-Person Mediation: There has been a rise in online video conferencing platforms such as Zoom, Microsoft Teams, and Google Meet, which has had the effect of reshaping the delivery of mediation services. The COVID-19 virus is the major propagator of this emergence, as there was a need for continuity of certain life aspects during the pandemic period, the use of these platforms has continued to grow even post-pandemic, as legal professionals have recognized the increased flexibility and efficiency. In Kenya, due to the geographical hindrances to justice, the shift to the use of online video conferencing in place of in-person mediation provides a pliable alternative for parties who otherwise face challenges in participating in traditional, face-to-face mediations.

This transition to online mediation has significantly altered the mediation process dynamics. To note, the transition to online mediation preserves the essence of mediation, which is dialogue, negotiation, and resolution, but the digital medium also introduces unique elements that differentiate it from in-person interaction. The online meditation platforms are convenient, where transcription is incorporated. There need not be a translator where the medium can codify and decode information to be understood by a receiver having a different dialect. To understand these differences, it is crucial to examine the advantages, disadvantages, and overall effects of online mediation.

Advantages of Online Video Conferencing in Mediation

One of the standout advantages of online mediation is its ability to increase accessibility to justice. A case example, for parties involved in cross-border disputes or those that are located in remote areas of Kenya, such as Mandera, online mediation brings a lifetime opportunity to participate without the need for physical travel, with a probable likelihood of success. Doing away with the logistical hurdles saves both time and costs, and makes mediation a more attractive medium for dispute resolution for individuals and businesses alike. Accessibility is a vital principle of justice, and the ability of these online platforms to bridge geographic barriers is a transformative contribution to the overall dream of amicable, fast, and just dispute resolution in Kenya.

In addition to increased accessibility, online mediation is considered to provide immense flexibility due to its scheduling. Traditional mediation often requires significant coordination and logistics to arrange face-to-face meetings between the aggrieved parties, their legal representatives, and the mediator. By using video conferencing, mediation can be planned using a Google Calendar and a few emails. This ensures that mediation is conducted with fewer to no delays, as participants can engage from their respective locations, not only across Kenya but also across our global village with only a few clicks of a button. This has the ripple effect of faster resolution times, which is a major benefit in Kenya, where our courts struggle with backlogs and delays are still prevalent .

Online Video conferencing brings with it the power and potential to neutralize certain power imbalances that may exist in in-person mediation. Physical presence in a shared space can sometimes create tension, especially when one party is more socially or economically powerful than the other party. In a virtual setup, the physical distance between the parties works to reduce intimidation and allow parties to communicate more openly without any fear, and therefore, the mediator is able to assess the situation correctly. The incorporation of private “breakout rooms” in applications like Zoom, where parties hold confidential discussions with the mediators, further promotes the ability of the mediator to facilitate balanced and effective mediation.

Disadvantages of Online Video Conferencing in Mediation

Online mediation also has a set of challenges that ought to be considered and resolved to ensure its effectiveness. One of the primary drawbacks is technology barriers. In Kenya, where digital literacy and internet access vary widely across regions, not all parties may have the necessary computer skills, literacy, or even access to the internet on their computer gadgets to engage in virtual mediation effectively. Poor internet connectivity, which is still prevalent in many rural areas, can disrupt the mediation process, causing delays and frustration. In addition, older individuals and those not familiar with technology may struggle to navigate video conferencing tools, potentially disadvantaging them during mediation.

Another significant disadvantage is the lack and loss of personal interaction that is inherent in in-person mediation. The ability to read body language, facial expressions, and other non-verbal cues is included in the job description for mediators and plays a critical role in mediation; these signals often provide mediators with insights into the emotions and motivations driving the parties’ positions. In a virtual world, these cues are harder or even impossible to perceive, which then impedes the mediator’s ability to gauge the emotional state of the parties. This lack of human interaction has an effect of hindering the establishment of trust and rapport, crucial components of successful mediation.

The issue of cybersecurity also presents a enormous challenge to online mediation. While platforms like Zoom have taken measures to enhance cybersecurity on their Apps by introducing security features such as password-protected meetings and encryption, the risk of unauthorized access or data breaches remains a concern. In the context of mediation, confidentiality is paramount; any compromise in security significantly undermines the trust in the process and affects the willingness of parties to engage candidly.

Effects of Online Video Conferencing on Mediation

The drastic shift to online mediation from in-person mediation has had visible effects on the efficiency and outcomes of mediation processes. There have been studies from jurisdictions where online mediation has been widely accepted and adopted, such as the United States and the United Kingdom, which suggest that virtual mediation often leads to quicker resolutions compared to traditional in-person methods. This is probably due to the ease of scheduling and the reduction in logistical delays. It is still disputed whether these quicker resolutions are as effective and sustainable as those achieved through face-to-face mediation, and it is still a matter of debate.

From a psychological perspective, virtual mediation challenges the interpersonal dynamics of dispute resolution. Research has shown that online communication can lead to a phenomenon widely known as the “online disinhibition effect,” where individuals tend to behave differently, sometimes more aggressively, in virtual settings compared to in-person interactions. This dynamic negatively impacts the spirit of cooperation and compromise that is central to mediation. On the contrary, some parties may feel more comfortable and less vulnerable in a virtual setting, which could enhance their willingness to engage honestly and openly.

Legal Framework on Online Video Conferencing for Mediation

In Kenya, the legal framework governing mediation has just begun to adapt to these technological changes. Court-Annexed Mediation Rules, 2022, introduced by the Judiciary, provide a foundation for the institutionalization of mediation within the court system, but these rules do not explicitly address the use of online mediation platforms like Teams and Zoom, leaving a gap in the regulation of virtual mediation. As the popularity of online mediation grows, there is a demand for up-to-date legal reforms that will provide clear guidelines on the use of technology in mediation and ensure that the principles of fairness, confidentiality, and voluntariness are upheld.

The Use of Lie Detectors in Mediation

Lie detection technology, most commonly associated with polygraph tests, has long been used in criminal investigations and security screenings. However, its potential application in mediation is a relatively new development. The use of lie detectors in mediation raises intriguing possibilities, particularly in cases where truthfulness and credibility are central to the resolution of the dispute. Although lie detectors are not widely used in mediation today, their potential to become a tool in dispute resolution warrants careful consideration. The use of lie detectors is solely based on assessing the credibility of the witness statements or evidence from either of the parties. The physiological differences, including the heart rate, blood pressure, respiration, perspiration, and skin conductivity, are weighed to assess whether someone is telling the truth or lying. The Functional Magnetic Resonance Imaging (FMRI) is used to assess brain activity. When some part of the brain seems to be active than normal, the probability that the person is lying is high. The polygraph, which measures brain activity, is used to assess the sudden increase in activity, especially in the prefrontal cortex, which is the part of the brain active when someone is deceptive. This important technology has recently been integrated into the courtroom and is now finding a footing in modern mediation practices. Though there are debates on the admissibility of the technology in courts, the use of the same in non-court-based channels of dispute resolution remains welcome.

Advantages of Lie Detectors in Mediation

One of the primary arguments in favor of incorporating lie detectors into the mediation process is the potential to encourage honesty among the parties. The very presence of a lie detector could deter parties from providing false or misleading information, thereby streamlining the mediation process and increasing the chances of reaching a truthful and fair resolution. In disputes where conflicting factual accounts are at the heart of the disagreement, a lie detector could help the mediator assess the credibility of the parties, making it easier to identify common ground.

Furthermore, lie detectors offer a form of objectivity that is often lacking in traditional mediation, where the mediator must rely on subjective impressions of the parties’ credibility. By providing a scientific basis for determining truthfulness, lie detectors could reduce the mediator’s reliance on personal judgment, potentially leading to more accurate and just outcomes. This could be particularly useful in high-stakes disputes, such as commercial or family disputes, where the consequences of dishonesty could be significant.

Disadvantages of Lie Detectors in Mediation

Despite the potential benefits, the use of lie detectors in mediation is fraught with challenges. The most significant concern is the accuracy of polygraph tests. While lie detectors measure physiological responses — such as heart rate, respiration, and skin conductivity — to assess whether a person is being truthful, these measurements are not foolproof. Polygraph tests can produce false positives, where truthful individuals are mistakenly identified as deceptive, or false negatives, where deceptive individuals are incorrectly judged to be honest. This lack of reliability raises serious questions about the fairness of using lie detectors in mediation, where the consequences of an incorrect result could be detrimental to one or both parties.

The introduction of a lie detector into the mediation process could fundamentally alter the voluntary and cooperative nature of mediation. Mediation is built on the principles of openness, trust, and the willingness of parties to work together to resolve their dispute. The use of a lie detector may introduce an element of coercion, as parties may feel pressured to submit to the test or to alter their statements out of fear of being accused of dishonesty. This could lead to a more confrontational atmosphere, undermining the very purpose of mediation as a means of achieving amicable resolutions.

Effects of Lie Detectors on Mediation

The psychological impact of lie detectors on mediation participants cannot be overlooked. The use of a polygraph test may increase anxiety and stress among the parties, which could distort their ability to engage fully and truthfully in the mediation process. Fear of being labeled as dishonest, regardless of the accuracy of the test, may cause participants to withhold information or alter their behavior in ways that are counterproductive to the resolution of the dispute. Additionally, the introduction of lie detection technology could shift the focus of mediation away from dialogue and negotiation, transforming it into a fact-finding or investigative process.

In terms of its impact on the voluntary nature of mediation, the use of lie detectors could create a power imbalance, especially if one party is more willing or able to undergo the test than the other. This could lead to an unfair advantage for one party, further complicating the mediation process. As a result, the use of lie detectors in mediation raises serious ethical and legal concerns that must be addressed before they can be widely adopted in dispute resolution.

Legal Framework on Lie Detectors

In Kenya, there is currently no legal framework governing the use of lie detectors in mediation, and their admissibility in court proceedings remains a contentious issue. Polygraph results are not generally accepted as evidence in Kenyan courts, even though Section 106B of the Evidence Act has provided for provisions on admissibility of electronic records, and their use in mediation would likely face similar legal and ethical challenges. In contrast, some jurisdictions, such as certain states in the United States, have experimented with the use of lie detectors in ADR processes, albeit with limited success. A notable case in this regard is State v Jones, where polygraph results were considered during negotiations, though they were ultimately excluded from the final settlement due to concerns about their reliability.

Comparative Analysis: In-Person Mediation vs. Technology-Based Mediation

The shift from traditional, in-person mediation to technology-based mediation represents a significant evolution in dispute resolution. In-person mediation has long been valued for its ability to foster personal connection, trust, and empathy, which are crucial elements in achieving amicable settlements. Mediators rely heavily on face-to-face interactions to read non-verbal cues, build rapport with the parties, and facilitate open communication. However, the logistical challenges of coordinating in-person meetings, particularly in cross-border disputes, can make this form of mediation time-consuming and costly.

In contrast, technology-based mediation, particularly through video conferencing platforms, offers a more efficient and accessible alternative. By removing the need for physical presence, online mediation reduces travel costs, allows for more flexible scheduling, and increases the overall speed of the mediation process. However, this convenience comes at the cost of losing the personal touch that is often essential in resolving disputes. Mediators must navigate the challenges of interpreting emotions and motivations in a virtual environment, where body language and other non-verbal cues are harder to discern.

The use of lie detectors in mediation represents an even more radical departure from traditional practices. While in-person mediation emphasizes voluntary participation and open dialogue, the introduction of a lie detector could shift the focus toward determining factual accuracy, rather than fostering collaboration and compromise. This shift raises concerns about the potential for coercion and the loss of the voluntary, non-adversarial nature of mediation.

Conclusion

The advent of technology in mediation presents both opportunities and challenges for dispute resolution. The use of online video conferencing platforms has made mediation more accessible and efficient, particularly in a country like Kenya, where geographic barriers and logistical challenges can hinder access to justice. However, the loss of personal interaction, the risk of technology barriers, and concerns about cybersecurity must be addressed to ensure that online mediation remains effective and fair. As such, mediators should be made aware of the different ethical concerns. They should be educated on the issue of protecting the data subjects in compliance with the Data Protection Act 2019, as well as supporting laws. This will go a long way in protecting privacy rights. Mediators in the contemporary world should be trained on soft skills to ensure that they are versatile in the use of technical gadgets during meditation practices.

Similarly, the potential use of lie detectors in mediation raises important ethical and legal questions. While lie detection technology could enhance the objectivity of the mediation process, its lack of reliability and potential to create a more adversarial atmosphere must be carefully considered. As the use of technology in mediation continues to evolve, it is essential that legal frameworks and ethical guidelines keep pace with these developments to ensure that the principles of fairness, voluntariness, and confidentiality are upheld. Mediators should be trained on the use of lie detectors to assess the credibility of evidence given. They should also be taught the analysis of the polygraphs from the thorough analysis of the Functional Magnetic Resonance Imaging ( FMRI). As such, they do not necessarily have to rely on medical practitioners as this results in more costs.

Mediation and Artificial Intelligence

Alternative Dispute Resolution (ADR) is a recognized means of settling disputes between conflicting parties. The more common mechanism is mediation, where a neutral party is chosen to help disagreeing parties mutually arrive at an acceptable agreement. This is the traditional person-to-person approach and has seen many disputes between individual parties, local governments, international contingents, and states. However, in the recent past, we have seen the incorporation of technology and artificial intelligence (AI) in mediation, which has ultimately changed the dynamics of settling disputes. The advent of machine learning and predictive algorithms has seen the rise of chatbots that are trained to offer data-driven insights and help streamline communication with the parties. Artificial Intelligence augments and enhances mediator capabilities through advanced data processing, predictive analytics, natural language processing, and various support tools. We can all attest to the remarkable transformation that AI has brought to different workplaces with spontaneous processing of data, and accurate, precise, and sifting through voluminous analysis of information. “Generative AI tools, trained on vast datasets, have exponential capacity for natural language processing, allowing them to rapidly search, compare, summarize, and extract insights from large volumes of text, images, and data,” according to the American Arbitration Association. In our context, the chatbots are used in different processes: preparation of the process by setting the objectives, analyzing the mediation brief, streamlining communication with the parties and the mediator, proposing settlement agreements, and drafting the final agreement. In striking objectives, AI can be used to balance the interests of the parties. The mediator can feed the chatbots with the facts of the case and the claim from each side and immediately get feedback. He/she will therefore be able to get responses on the objective of the process and compare with the objectives they have to see which suits the context.

What is Artificial Intelligence, and its role in mediation?

Artificial intelligence (AI) is a technology that enables computers and machines to simulate human learning, comprehension, problem-solving, decision-making, creativity, and autonomy. Essentially, computers are programmed to employ cognitive skills, logic, reason, thought, and decision-making, in tandem with the human mind. The process requires the input of an avalanche of data in the computer database, algorithm training, and machine learning techniques. The computers are therefore able to perform specific tasks not on rote, upon request by a user. They process the data, analyze and predict the outcome, and “consciously” propose multiple solutions to problems. It is from this intelligence to mimic humans that AI finds its role in modern mediation practices.

The use of AI in mediation has transformed modern-day mediation with meticulous processing and analysis of data. The process starts when the parties in the legal dispute consent to the practice. Each party is allowed to present their case in a manner that they deem fit, just like in normal mediation practice. AI can employ Natural Language Processing (NLP), allowing for easier communication between the parties. The parties present their case and claim in the form of audio, video, or text. The Chatbot collects the avalanche of data, which may include documents, manuscripts, deeds, fiscal statements, receipts, etc., depending on the circumstances of each case. From the facts, the AI can assist in the following:

(i) developing the objectives of the mediation process,
(ii) drawing the strengths and weaknesses of each case,
(iii) comparing the case with precedents
(iv) analyzing the case in the scope of relevant laws and regulations
(v) predict and propose outcomes of the resolution

AI is augmented in aiding human mediators to perform tasks effectively. The mediator acts as the impartial third party with the assistance of a ChatBot. The absence of human presence sparks controversy about giving autonomy to nonhuman objects to act upon human subjects. This is because AI and machines do not possess innate human aspects such as emotional intelligence, soft skills, and ethical judgment. Though heavily credited for alienating these subjective factors for impartiality and avoiding personal bias, it is in these conscious “unconscious” aspects that certain social aspects, such as trust, blend. According to Galvão, professor of applied philosophy at New Acropolis Brazil, symbolic vision, intuition, imagination, creativity, innovation, inspiration, ethics, justice, principles, meaning, purpose, and ideals, the AI does not reach with its mechanical logic, combinatory analysis, and positivism. AI blatantly imposes fines for scenarios where parties arrive late to a mediation meeting without undue regard to some technical difficulties, such as traffic. In employing AI in mediation, the human touch still plays a critical role. A human mediator with the benefit of emotional intelligence and an ability to grasp the nuances of the case and think of resolutions that might incorporate any subjective considerations motivating one or both parties can then adjust the suggested resolutions. It is therefore important to appreciate the need to develop AI platforms that help mitigate such circumstances.

AI poses critical ethical issues on liability in the event of a mistake. The AI chatbots, as we had previously discussed, require data input and machine learning pieces of training. Inasmuch as they are efficient, an error in the system can lead to mistakes in the results of tasks. For example, in a mediation process, the system fails to upload and relies on specific and vital documents to arrive at a resolution. Do we hold the machine, the software engineers, or the company to culpability? It is in this lacuna of law that the users of these platforms find themselves in limbo. Moreover, the input of misguided evidence inadvertently leads to biased outputs from the AI robots. The “Gabbage In Gabbage Out (GIGO) “narrative applies in this instance, where AI fails to apply human approaches to assess the credibility of the responses from the parties and witnesses. This ultimately leads to biased resolutions that beat the course of justice. There are also concerns about gender inclusivity in developing the software behind the mediation AI platforms. This could lead to gender-biased responses from the Chatbots.

Recommendations

We must compound the benefits of these important and life-saving technologies. That notwithstanding, the catastrophes of this revolution are equally dire. Ethical concerns should be looked at in the creation stage as well as in the continuous use of AI in mediation practices. The creation of AI was meant to cater to where human cognitive capacities were deficient and should therefore complement human effort and not replace it. It is therefore grey if we are to give autonomy to objects to make rational decisions for us.
The presence of a jurisprudence, especially in the Kenyan context, will go a long way in regulating the use of AI across different spheres, especially in the integration of AI in mediation.

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