Like many attorneys in today’s day and age, I’m very busy with my law practice and also quite curious about AI and its capabilities. So, I asked our proprietary AI system to write most of this article for me. There, I confess.
I have, of course, confirmed the accuracy of the AI-generated text. It is accurate. But it is also—to put it bluntly—somewhat robotic and bland. I have added a few observations of my own, in bold, therefore, because I think the human perspective is important to this discussion.
Artificial intelligence (AI) is transforming many aspects of dispute resolution. The American Arbitration Association (AAA) has emerged as a leader in exploring AI-assisted arbitration, particularly through its AI Arbitrator initiative for certain document-only construction disputes. While AI offers substantial efficiencies, it also raises important questions about fairness, transparency, and the continuing role of human decision-makers.
Examples of AI use in arbitration
AI’s role in arbitration is evolving rapidly (editor’s note: AI seems to love this phrase). Tools are already being used to assist with a variety of tasks, including:
1. Document review and analysis
AI’s ability to sift through enormous quantities of information has the potential, therefore, be a significant benefit within our existing discovery system. AI can review thousands of pages of contracts, correspondence, invoices, and project records, identifying potentially relevant issues and evidence.
Disproportionately expensive discovery has been a problem in American litigation for decades and more recently, has been affecting arbitration as well. In my experience, much of the process is conducted without enough consideration of what information will actually matter to the outcome. Some cases may turn on a single communication buried in a mountain of documents; many will not.
2. Case summarization
AI can generate structured summaries of the parties’ positions, factual allegations, supporting evidence, and legal arguments. The AAA’s AI Arbitrator uses AI to create case narratives and issue analyses that parties may review and validate.
However, AI-generated summaries are best viewed as a starting point, not a finished product. A human being must check for errors, omissions, and misplaced emphasis.
3. Chronology and timeline creation
Construction and commercial disputes often involve extensive project histories. AI can organize events, communications, and contract modifications into timelines that assist arbitrators in understanding the dispute.
This is particularly valuable. AI can provide a remarkably useful starting point and save substantial time in developing a complete chronology.
4. Issue spotting and claim analysis
AI can identify disputed contractual provisions, damages claims, and defenses, helping arbitrators focus on the most important issues.
In my experience, AI is highly effective at identifying issues, although less reliable when it comes to reaching the correct analytical result. That distinction is important. Again, it is a starting point-not a complete, contained solution.
5. Drafting preliminary awards
The AAA’s AI Arbitrator is designed to generate draft analyses and awards that are reviewed and, if necessary, revised before being issued by a human arbitrator.
AI can provide a useful template and head start, but this is precisely where close human attention is most important. An arbitrator must resist the tendency to defer to an AI-generated analysis simply because it appears polished and authoritative.
6. Risk assessment and outcome simulation
AI can analyze prior arbitration decisions and dispute characteristics to provide nonbinding assessments of potential outcomes, allowing parties to evaluate settlement opportunities and litigation risk.
It is reasonable to expect that clients—and perhaps even opposing parties—will increasingly use AI themselves to assess the strengths and weaknesses of a case. Given the cost of legal services, our profession should be prepared for that possibility.
Advantages and risks
AI can dramatically improve efficiency by reviewing and organizing large quantities of information in a fraction of the time required by humans. It may also improve access to justice by making lower-value claims less expensive to arbitrate.
But these benefits come with significant risks. AI systems may inherit biases from their training data, and some models provide limited transparency into how they reach conclusions. Confidentiality and cybersecurity concerns also arise when sensitive dispute materials are processed through AI platforms.
Perhaps most importantly, many disputes require credibility determinations, assessments of witness testimony, and judgments about fairness, intent, and context. Those functions remain difficult to automate and require human experience and judgment.
The human element
The most significant risk may be less about what AI gets wrong and more about what humans stop doing because AI has provided “an answer.”
For example, I saved a great deal of time by using AI to write most of this article. But I also have a distinct sense that I may come away from this article with a more superficial understanding of some of these issues than I would have had I had written the article from scratch.
Therein may be the hidden danger of AI. The efficiency it provides may come at the expense of the deeper, more productive, and more meaningful thinking associated with doing the work ourselves, which, for complicated cases, may be what a case turns on.
The takeaway
AI will likely become an increasingly common feature of arbitration as parties and providers look for ways to reduce costs and resolve disputes more efficiently. Used thoughtfully, it can be an extraordinarily powerful tool.
But arbitration remains a human process. Assessing credibility, weighing competing interpretations, understanding context, and exercising judgment are functions that technology cannot fully replicate.
The goal should not be to replace human judgment, but to use AI to make that judgment more informed and efficient—while remaining sufficiently engaged to question the answers it provides.
George Burns is a Senior Counsel who represents owners, contractors, and other construction participants on everything from hospitals and schools to infrastructure, energy, and large-scale residential projects. He can be reached at [email protected].
Bernstein Shur’s Construction Group helps developers, contractors, and construction professionals manage risk and keep projects on track at every stage of the project lifecycle. The group provides sophisticated legal solutions spanning contract negotiation, project administration, dispute avoidance, and litigation, drawing on deep experience in the construction industry.