The Neuroscience of Conflict Resolution: Implications for Modern Mediation Strategies

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The manuscript opened its second part by repeating the opening paragraph of the article verbatim; the repetition has been removed. The case cited as State v Jones could not be verified and the reference has been retained in the author’s words with that qualification. The article’s account of polygraph and functional magnetic resonance imaging technology contains a conflation of the two, which is addressed in the section added by this journal rather than altered in the author’s text.

ABSTRACT *

This article examines the incorporation of technology into mediation practice, with particular reference to Kenya. Three developments are considered. The first is online video conferencing, whose adoption accelerated during the pandemic and has continued since; the author sets out its advantages in accessibility, scheduling and the reduction of power imbalance, against its costs in digital exclusion, the loss of non-verbal communication, and data security, and notes that the Court Annexed Mediation Rules of 2022 do not address it. The second is deception detection technology, whose possible use in mediation the author considers in terms of encouraging candour and supplying objectivity, against the reliability problems of the method, its coercive potential, and its effect on the voluntary character of the process. The third is artificial intelligence, examined through the tasks it can perform in preparation, analysis and drafting, and through the questions of liability, bias and inclusivity that its use raises. The article closes with recommendations on training, data protection and regulation.

KEYWORDS *

Mediation, technology, Kenya, online dispute resolution, video conferencing, digital divide, polygraph, deception detection, artificial intelligence, confidentiality, data protection, access to justice

INTRODUCTION

Alternative dispute resolution is a recognised means of settling disputes between conflicting parties. The more common mechanism is mediation, in which a neutral party is chosen to help disagreeing parties arrive at a mutually acceptable agreement. This is the traditional person-to-person approach and has been applied to disputes between individuals, local governments, international bodies, and states. In the recent past, however, we have seen the incorporation of technology and artificial intelligence into mediation, which has changed the dynamics of settling disputes. The advent of machine learning and predictive algorithms has produced systems trained to offer data-driven insights and to streamline communication with the parties.

This article examines the integration of technology and artificial intelligence into mediation practice. It considers the use of video conferencing, the possible incorporation of deception detection technology, and the implications of both for modern mediation strategy. In doing so it also considers the underlying difficulties raised by these technologies and proposes possible responses.

MAIN CORPUS

Mediation and technology

Mediation has long been an important method of alternative dispute resolution, offering parties the chance to work on their conflicts outside the judicial system. For a long time mediation relied heavily on in-person meetings, with the conflicting parties and the mediator working face to face in order to reach mutually beneficial agreements. Technological advance has transformed many aspects of legal practice, and mediation is no exception. Recent developments, particularly the use of online video conferencing and the introduction of deception detection technology, have significantly affected the field.

The incorporation of these technologies raises fundamental questions about efficiency, fairness, accessibility, and the protection of core principles such as confidentiality and voluntariness. This article examines the implications of using online platforms in place of in-person mediation, and the possible role of deception detection technology in dispute resolution, with attention to the Kenyan context.

The use of online video conferencing in mediation

A shift from in-person mediation. The rise of platforms such as Zoom, Microsoft Teams, and Google Meet has reshaped the delivery of mediation services. The pandemic was the principal driver of this development, as there was a need for continuity, and the use of these platforms has continued to grow since, as practitioners have recognised the increased flexibility and efficiency. In Kenya, where geographical distance is a real obstacle to access to justice, the shift to online mediation provides a workable alternative for parties who would otherwise face difficulty in participating in face-to-face processes.

This transition has significantly altered the dynamics of mediation. It preserves the essence of the process, namely dialogue, negotiation, and resolution, but the digital medium also introduces elements that differentiate it from in-person interaction. Online platforms are convenient where transcription is incorporated, and there may be no need for a separate interpreter where the medium can render information intelligible to a receiver who speaks a different language. To understand these differences it is necessary to examine the advantages, disadvantages, and overall effects of online mediation.

Advantages. One of the standout advantages is increased accessibility to justice. For parties involved in cross-border disputes, or those located in remote areas of Kenya such as Mandera, online mediation offers the opportunity to participate without the need for physical travel. Removing these logistical hurdles saves both time and cost and makes mediation a more attractive route for individuals and businesses alike. Accessibility is a vital principle of justice, and the capacity of these platforms to bridge geographic barriers is a significant contribution to the aim of amicable, prompt, and just dispute resolution in Kenya.

Online mediation also provides considerable flexibility in scheduling. Traditional mediation often requires significant coordination to arrange meetings between the parties, their legal representatives, and the mediator. By using video conferencing, a session can be arranged with a shared calendar and a few messages. This means that mediation is conducted with fewer delays, as participants can engage from their respective locations, not only across Kenya but internationally. The effect is faster resolution, which is a major benefit in a jurisdiction where the courts struggle with backlogs.

Video conferencing also has the potential to neutralise certain power imbalances that arise in in-person mediation. Physical presence in a shared space can create tension, especially where one party is more socially or economically powerful than the other. In a virtual setting, physical distance can reduce intimidation and allow parties to communicate more openly, so that the mediator is better able to assess the situation. The availability of private breakout rooms, in which parties hold confidential discussions with the mediator, further supports balanced and effective mediation.

Disadvantages. Online mediation also presents challenges that must be addressed if it is to be effective. One of the primary drawbacks is the barrier of technology. In Kenya, where digital literacy and internet access vary widely between regions, not all parties will have the necessary skills or access to participate effectively. Poor connectivity, still prevalent in many rural areas, can disrupt the process, causing delay and frustration. Older participants and those unfamiliar with the technology may struggle to navigate the tools, and may be disadvantaged as a result.

A further significant disadvantage is the loss of the personal interaction inherent in in-person mediation. The ability to read body language, facial expression, and other non-verbal cues is part of the mediator’s work and plays a critical role; these signals often provide insight into the emotions and motivations driving the parties’ positions. In a virtual setting these cues are harder to perceive, which impedes the mediator’s ability to gauge the emotional state of the parties. This can hinder the establishment of trust and rapport, both crucial to successful mediation.

Cybersecurity presents a further challenge. While platforms have introduced measures such as password protection and encryption, the risk of unauthorised access or data breach remains. In mediation, confidentiality is paramount, and any compromise in security undermines trust in the process and affects the willingness of parties to engage candidly.

Effects. The shift to online mediation has had visible effects on the efficiency and outcomes of the process. Studies from jurisdictions where online mediation has been widely adopted suggest that virtual mediation often leads to quicker resolution than traditional methods, probably owing to ease of scheduling and the reduction of logistical delay. Whether these quicker resolutions are as effective and as durable as those achieved face to face remains a matter of debate.

From a psychological perspective, virtual mediation alters the interpersonal dynamics of dispute resolution. Research has shown that online communication can lead to what is known as the online disinhibition effect, whereby individuals behave differently, sometimes more aggressively, in virtual settings than in person. This can affect the spirit of cooperation and compromise that is central to mediation. Conversely, some parties may feel more comfortable and less exposed in a virtual setting, which could enhance their willingness to engage openly.

Legal framework. In Kenya the legal framework governing mediation has only begun to adapt to these changes. The Court Annexed Mediation Rules of 2022 provide a foundation for the institutionalisation of mediation within the court system, but they do not explicitly address the use of online platforms, leaving a gap in the regulation of virtual mediation. As online mediation grows, there is a need for reform providing clear guidance on the use of technology and ensuring that the principles of fairness, confidentiality, and voluntariness are upheld.

The use of deception detection technology in mediation

Deception detection technology, most commonly associated with the polygraph, has long been used in criminal investigation and security screening. Its potential application in mediation is a relatively new question. Its use raises interesting possibilities, particularly in cases where truthfulness and credibility are central to the resolution of the dispute. Although such technology is not widely used in mediation today, its potential warrants careful consideration.

The polygraph assesses the credibility of statements by measuring physiological indicators, including heart rate, blood pressure, respiration, perspiration, and skin conductivity. Functional magnetic resonance imaging is used to assess brain activity, on the theory that heightened activity in certain regions, particularly the prefrontal cortex, correlates with deception. Although there is debate about the admissibility of such evidence in courts, its use in non-court-based dispute resolution has attracted interest.

Advantages. One of the primary arguments in favour of incorporating such technology is the potential to encourage honesty among the parties. Its presence could deter the provision of false or misleading information, streamlining the process and increasing the chances of a truthful and fair resolution. In disputes where conflicting factual accounts lie at the heart of the disagreement, it could help the mediator assess credibility and identify common ground.

Such technology also offers a form of objectivity that is often lacking in traditional mediation, where the mediator must rely on subjective impressions of credibility. By providing a measurable basis for assessing truthfulness, it could reduce reliance on personal judgement, potentially leading to more accurate outcomes. This might be particularly useful in high-stakes commercial or family disputes, where the consequences of dishonesty are significant.

Disadvantages. Despite these potential benefits, the use of such technology in mediation is fraught with difficulty. The most significant concern is accuracy. Physiological measurements are not conclusive. Tests can produce false positives, in which truthful individuals are identified as deceptive, and false negatives, in which deceptive individuals are judged honest. This unreliability raises serious questions about fairness, since the consequences of an incorrect result could be severe for one or both parties.

The introduction of such a test could also fundamentally alter the voluntary and cooperative nature of mediation. Mediation is built on openness, trust, and the willingness of parties to work together. The use of a test may introduce an element of coercion, as parties may feel pressed to submit to it or to alter their statements out of fear of being accused of dishonesty. This could produce a more confrontational atmosphere, undermining the purpose of mediation as a means of achieving amicable resolution.

Effects. The psychological impact on participants cannot be overlooked. Testing may increase anxiety and stress, which could distort the ability to engage fully in the process. Fear of being labelled dishonest, regardless of the accuracy of the result, may cause participants to withhold information or alter their behaviour in ways that are counterproductive. The introduction of such technology could also shift the focus of mediation away from dialogue and negotiation, transforming it into a fact-finding or investigative exercise.

As regards the voluntary nature of mediation, such testing could create a power imbalance, particularly where one party is more willing or able to undergo it than the other. This could confer an unfair advantage and further complicate the process. The use of deception detection technology in mediation therefore raises serious ethical and legal concerns that must be addressed before it could be widely adopted.

Legal framework. In Kenya there is currently no legal framework governing the use of such technology in mediation, and its admissibility in court proceedings remains contentious. Polygraph results are not generally accepted as evidence in Kenyan courts, notwithstanding the provisions of the Evidence Act on the admissibility of electronic records, and their use in mediation would face similar legal and ethical difficulties. Some jurisdictions have experimented with such technology in dispute resolution processes, with limited success.

Comparative analysis: in-person and 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 capacity to foster personal connection, trust, and empathy, which are crucial to achieving amicable settlement. Mediators rely heavily on face-to-face interaction to read non-verbal cues, build rapport, 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.

Technology-based mediation, particularly through video conferencing, offers a more efficient and accessible alternative. By removing the need for physical presence, it reduces travel costs, allows for more flexible scheduling, and increases the overall speed of the process. This convenience comes at the cost of losing the personal element that is often essential in resolving disputes, and mediators must navigate the difficulty of interpreting emotion and motivation in an environment where non-verbal cues are harder to discern.

The use of deception detection technology represents an even more radical departure. While in-person mediation emphasises voluntary participation and open dialogue, the introduction of such a test could shift the focus toward determining factual accuracy rather than fostering collaboration and compromise, raising concerns about coercion and about the loss of the voluntary, non-adversarial character of the process.

Mediation and artificial intelligence

Artificial intelligence augments the capabilities of mediators through data processing, predictive analysis, natural language processing, and various support tools. The transformation such systems have brought to many workplaces, through rapid processing and the analysis of large volumes of information, is widely recognised. Generative systems, trained on very large datasets, have considerable capacity for natural language processing, allowing them to search, compare, summarise, and extract insights from large volumes of text, images, and data.

In the mediation context such systems are used in several ways: in preparing the process by setting objectives, in analysing the mediation brief, in streamlining communication between the parties and the mediator, in proposing settlement terms, and in drafting the final agreement. In setting objectives, such tools can be used to help balance the interests of the parties. The mediator can supply the facts of the case and the claim of each side and receive an immediate response, and can then compare the objectives suggested with those already identified in order to see which suits the context.

What is artificial intelligence, and what is its role in mediation?

Artificial intelligence is a technology that enables computers to simulate aspects of human learning, comprehension, problem-solving, and decision-making. Computers are programmed to apply what appear to be cognitive operations in tandem with the human mind. The process requires the input of large quantities of data, the training of algorithms, and machine learning techniques. Systems are then able to perform specific tasks on request, processing data, analysing it, predicting outcomes, and proposing multiple solutions to problems. It is from this capacity to imitate aspects of human reasoning that such systems find a role in modern mediation practice.

The use of these systems has changed mediation through detailed processing and analysis of data. The process begins when the parties consent. Each party presents its case in a manner it deems fit, as in ordinary mediation practice. Natural language processing allows for easier communication between the parties, who may present their case in audio, video, or text form. The system collects the data, which may include documents, deeds, financial statements, and receipts, depending on the circumstances of the case. From these facts it can assist in developing the objectives of the process, in drawing out the strengths and weaknesses of each case, in comparing the case with precedent, in analysing it in the light of relevant law and regulation, and in predicting and proposing outcomes.

Such systems aid human mediators in performing these tasks. The mediator acts as the impartial third party with that assistance. The absence of a human presence in decision-making raises controversy about giving autonomy to non-human systems to act upon human subjects, because such systems do not possess emotional intelligence, interpersonal skill, or ethical judgement. Although they are credited with excluding subjective factors in the interest of impartiality, it is within those apparently subjective aspects that social qualities such as trust are formed. As Galvão observes, symbolic vision, intuition, imagination, creativity, innovation, inspiration, ethics, justice, principle, meaning, purpose, and ideals are not reached by mechanical logic, combinatory analysis, and positivism. A system might, for example, apply a penalty where a party arrives late to a session without regard to circumstances such as traffic. The human element therefore remains critical. A human mediator, with emotional intelligence and an ability to grasp the nuances of the case and to consider resolutions that incorporate the subjective considerations motivating one or both parties, can adjust the suggested outcome. It is therefore important to develop platforms that allow for such adjustment.

Such systems also pose critical ethical questions about liability in the event of error. These tools require data input and training. Efficient as they are, an error in the system can lead to mistakes in the result. Suppose that in a mediation process the system fails to register a vital document and reaches a proposed resolution without it. Is the machine, the software engineer, or the company to be held responsible? It is in this gap in the law that users find themselves. Moreover, the input of misleading material leads to biased output. The principle that faulty input produces faulty output applies here, since such systems cannot apply human judgement in assessing the credibility of responses from parties and witnesses. This can lead to biased outcomes that defeat the course of justice. There are also concerns about inclusivity in the development of the software behind these platforms, which could produce biased responses.

SUMMARY *

The article’s organising insight is that the three technologies it examines affect mediation at three different depths, and that the depth determines how much scrutiny each requires. Video conferencing changes where mediation happens and who can reach it, and its principal risks, exclusion and data security, are practical problems with practical answers. Artificial intelligence changes how a mediator prepares and drafts, and its risks concern accuracy, bias and responsibility for error. Deception detection would change what mediation is for, replacing a process directed at agreement with one directed at establishing who is telling the truth. The author’s Kenyan framing gives the first of these particular force, since in a jurisdiction where distance and court backlog are the principal barriers to justice, an accessibility gain is not a convenience but a substantive improvement, and the digital divide that qualifies it is correspondingly the central design problem.

CONCLUSION

The advent of technology in mediation presents both opportunities and challenges for dispute resolution. Online video conferencing has made mediation more accessible and efficient, particularly in a country such as Kenya, where geography and logistics can hinder access to justice. However, the loss of personal interaction, the barriers of technology, and concerns about cybersecurity must be addressed if online mediation is to remain effective and fair. Mediators should accordingly be made aware of the relevant ethical questions, and should be instructed in the protection of personal data in compliance with the Data Protection Act of 2019 and supporting legislation. This will do much to protect privacy rights. Mediators should also be trained to work confidently with the technical tools now in use.

The possible use of deception detection technology raises important ethical and legal questions. While such technology could in principle enhance the objectivity of the process, its limited reliability and its potential to create a more adversarial atmosphere must be carefully weighed.

As regards artificial intelligence, the benefits of these technologies must be secured while the risks are contained. Ethical questions should be considered at the point of design as well as in continuing use. These systems were developed to supplement human capacity, and should therefore complement human effort rather than replace it. It remains an open question whether we should confer on such systems the authority to make decisions on our behalf. The development of jurisprudence, particularly in the Kenyan context, would do much to regulate the use of these systems across different fields, and specifically in mediation.

POTENTIAL SOLUTION *

One correction must come first, because it is the point on which this journal cannot remain silent.

The article describes the polygraph as measuring brain activity and as detecting activation in the prefrontal cortex. It does not. A polygraph records physiological arousal, namely respiration, cardiovascular activity and skin conductance, and it does so on the assumption that deception produces arousal. That assumption is the source of its weakness, since anxiety, fear of being disbelieved, and the significance of the question itself all produce the same signals in a person telling the truth. The imaging technique described is a separate method, and its application to deception has been tested almost entirely on volunteers instructed to lie about matters of no consequence to them, which is not the situation of a person in a dispute about their home, their business, or their family.

The consequence bears directly on the article’s closing recommendation, and it is the one point at which this journal must disagree with the author. The proposal that mediators be trained to administer such tests and to interpret imaging results, in order to avoid the cost of engaging medical practitioners, should not be adopted. The comprehensive review conducted by the United States National Research Council concluded that polygraph accuracy is insufficient to justify reliance where the consequences are serious, and the position of the relevant professional bodies on imaging-based deception detection is that it is not established for individual assessment. Beyond the science, the roles are incompatible: a mediator who administers a test becomes an investigator, and a party who declines it has, in the eyes of the other, answered the question. The correct response to a dispute of fact in mediation is not to determine who is lying but to construct terms that hold whichever account is true, through verification arrangements, staged performance, escrow, or the involvement of a neutral expert on the specific factual question.

On the online question, the article identifies the digital divide as a disadvantage, and it is better treated as the central design constraint. Where connectivity and device access are unevenly distributed, a process conducted online is not neutral between the parties: the better-resourced side appears from an office with a stable connection and counsel present off-camera, while the other joins from a phone in a place without privacy. Practical responses exist and are being used in comparable jurisdictions: hybrid arrangements in which the less-resourced party attends a supported physical venue, a technology check before the session, and an explicit rule that no participant may have an unannounced person present. These cost little and address the exposure directly.

Two further observations. The Data Protection Act of 2019 the author cites is more directly relevant than the article suggests, since a mediator using a foreign hosted platform or a foreign hosted analytical service is a data controller transferring personal data across borders, and the Act’s conditions for such transfer apply. This is an immediate compliance question rather than a future one. And on the question of liability for error, the answer is available and does not require new law: a mediator who relies on a tool remains professionally responsible for the output, as any professional does for the instruments they use, and the appropriate response is disclosure to the parties, verification of anything material, and professional indemnity arrangements that reflect the practice.

Finally, the article’s strongest claim is one it makes in passing, that in a jurisdiction with distance, cost, and court backlog, accessibility gains are substantive rather than merely convenient. That is the case for the technology, and it is a strong one. It also sets the standard against which each of these tools should be measured: the question to ask of any of them is whether it brings the process within reach of someone who could not previously reach it. Video conferencing plainly does. Drafting assistance may. A device that tells a mediator which party is lying does not, and would take from the parties the one thing mediation offers that a court does not, which is the authorship of their own settlement.

* Added by the WMO Editorial Team

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Supplementary references added by the WMO Editorial Team

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