What’s Next – An Empathetic Bot Mediator?

This article, written by attorney David McGrath, was originally published by the NH Bar News and can be found here (p35).

Artificial intelligence touts its arrival in the field of mediation and its ability to allow mediators to “make better decisions”. AI and I will agree to disagree about that because I do not believe mediators are hired to make decisions. Perhaps ironically, AI also emphasizes that mediators must use emotional intelligence to help parties resolve disputes. On that we agree, and it leads to the central question in this article: How can AI be helpful to a mediation process that is so reliant on emotional intelligence?

Emotional intelligence requires self-awareness, emotional regulation and empathy. Imbued with these traits, effective mediators recognize subtle emotional cues from participants, recognize unspoken needs and concerns, build trust and reduce tensions. This leads to high settlement rates and participant satisfaction. Yet, some cases do not settle, some participants leave dissatisfied, and too often the process plods along, which frays the nerves and tests the patience of the parties and their counsel (if represented). How might AI improve the mediation process and experience?

Using something called “sentiment analysis” AI apparently can analyze textual and facial recognition data and tone to assist in identifying and assessing parties’ emotions, interests, and willingness to accept potential settlements. One study – that did not exactly adhere to rigorous experimental methodology – compared untrained humans scores on standard emotional intelligence tests with AI scores on those same tests. AI achieved higher scores – 82% to 56%. It is one thing, though, to identify a participant’s emotional state; it is another to help that participant manage those emotions toward a productive mediation outcome. Further, although the AI generated responses in the study apparently made many participants feel more heard than the untrained human responses, participants felt uneasy and unsatisfied when they later learned that the messages were AI generated. Maybe, though, that is partly a function of our current lack of familiarity with and acceptance of AI in our lives.

Technology long ago entered the ADR field. For example, 10 years ago more than ninety percent of eBay’s millions of annual disputes were handled with no human (or AI) involvement. More recently, at the 2025 ABA Techshow members met the legal industry’s first AI Bot mediator, which is a hybrid platform utilizing both human and bot mediators. At present and for the foreseeable future, AI mediation will very likely involve a human mediator’s authorized use of an AI Bot assistant that can, uninfluenced by human bias and emotion, (a) quickly analyze volumes of documents submitted to the mediator; (b) suggest questions for use by the mediator; (c) identify party interests; (d) analyze participant emotional cues in real time; (e) provide feedback to the mediator on his or her communications with the parties; (f) make predictions about the likelihood of settlement in various scenarios ; and (g) help document material settlement terms.

As a mediator, I am particularly intrigued by the potential that AI could enable me to encourage parties to provide all potentially relevant documents, including communications between opposing counsel and pre-litigation communications between the parties. As it stands, principally due to time and cost constraints, we mediators are given only limited materials to aid our understanding of the dispute in advance of the mediation. With an AI bot assistant who could quickly analyze all meaningful documents and offer insights based on that review, mediators would arrive at the mediation with an enhanced sense of the dispute, the participants, the problem areas and the possible paths to resolution. This would make mediations more efficient and likely improve settlement success rates and participant satisfaction (particularly, if the increased efficiency reduces the number of hours parties must devote to the process).

AI may be disrupting the alternative dispute resolution industry, including mediation, but for two very important reasons there is no reason to fret about it. First, it is inevitable and pretending it’ll go away, and things will remain as they are, is foolish. Second, human mediators will still be indispensable in helping parties resolve disputes, which is the central point after all, and their ability to do so will be enhanced by melding their emotional intelligence and mortal traits and an AI bot’s superhuman machine capabilities.