The advent of artificial intelligence (AI) has sparked discussions across various industries; the discussions have included AI’s potential role in divorce mediation and arbitration.
While AI has shown promise in assisting mediators and arbitrators and in streamlining processes, its integration remains a sensitive topic. In this article, I explore both the risks and benefits of AI in divorce mediation and arbitration.
One of the primary concerns with the use of AI in divorce mediation and arbitration revolves around the potential for commoditization of human problems and errors in professional judgment. AI, particularly generative models like ChatGPT, Microsoft Pilot and Google Gemini operate based on patterns learned from vast data sets. In the legal sphere, Lexis+ AI, LEAP, Thompson Reuters’ Casetext, Westlaw Edge, Filevine AI, CoCounsel, and Everlaw are storming into the legal marketplace with subject-matter specific search results drawn from case-law, articles, and journals hoping to capture subscriptions from lawyers. However, these models can sometimes produce damaging responses, as seen in instances where AI-generated content contained hallucinations (i.e., where the AI generates answers that are factually incorrect, nonsensical, or fabricated, despite appearing confident and coherent), poor advice, or false and fictional legal answers. In divorce mediation and arbitration, where the stakes are high and emotions run deep, such errors could unfairly influence spouses, undermine the fairness of a process, and jeopardize family outcomes.
AI lacks the empathetic capabilities essential for managing emotions – a crucial aspect of effective divorce mediation and arbitration. Mediators and arbitrators excel in creating environments where spouses can express their feelings constructively, navigate complex emotions, and work towards mutually acceptable solutions. Because AI cannot recognize non-verbal cues, process emotional nuance, or de-escalate interpersonal tension, using AI in place of a trained mediator or arbitrator is very risky. It can worsen conflict or reinforce emotional misunderstandings.
Through the misapplication of legal principles, an AI tool might suggest a “fair” parenting schedule to be a 50/50 shared residence plan for the minor children without recognizing the unique profile of each parent or the specific needs of the child or, worse, generating a response based on inaccurate prompts.
AI tools including chatbots and generative AI divorce platforms are often trained on generalized legal content, not jurisdiction-specific law or nuanced, case-sensitive precedent. Spouses relying on AI might follow incorrect advice, leading to unenforceable agreements or adverse family outcomes.
AI tools can appear authoritative even when they are factually wrong or outdated. Laypeople may trust AI output because it “sounds right,” leading them to forego legal advice or assume they’ve reached a valid agreement when the information is incorrect. The problem is that AI does not disclose its confidence level, validate its legal sources, or flag ambiguities in the law -unlike a lawyer or divorce mediator or arbitrator.
Because divorce involves sensitive financial, psychological, and parenting information, using AI platforms (especially unregulated or open platforms) could expose personal data to security breaches, data harvesting, or misuse by third parties. In human mediation and arbitration, communications are confidential and protected.
AI is not able to regulate power imbalances, coercive control, mental health issues, or financial disparities. It is noteworthy that AI tools do not carry professional liability insurance or ethical obligations. If the advice is wrong, there is no recourse, no complaints process, and no fiduciary duty.
Despite its limitations, AI offers distinct advantages in divorce mediation and arbitration.
One of its most significant benefits lies in its ability to process vast amounts of data quickly and efficiently. AI tools can analyze documents for material and probative information to assist the mediator and arbitrator. It can summarize large bodies of information and identify key points from extensive textual or financial data. This capability not only saves time, but also reduces costs associated with large data analysis, benefiting both spouses and the mediator and arbitrator alike.
The use of AI in divorce mediation and arbitration is best in its role as an assistant, rather than a decision-maker.
For instance, in divorce mediation and arbitration where there are allegations of cash or hidden income, the mediator can use AI to review the family’s financial records for the last 3 years to assess its cost of living for each sub-category of household expense and then to compare that analysis to the reported income in the spouses’ Income Tax Returns and catch any change in the spouses’ net worth, to ascertain the incomes of the spouses for the purposes of child support and spousal support. This approach in the mediation phase can motivate the spouses to facilitate a settlement on child support and spousal support.
This example illustrates how AI can assist human mediators and arbitrators by leveraging AI’s analytical capabilities and bridge gaps between conflicting positions.
In terms of data analysis, AI systems are not influenced by personal biases or emotional factors. By providing objective data analysis, AI can help mitigate cognitive bias, promoting fairer and more data-driven outcomes for the spouses.
In conclusion, while AI is not yet equipped to replace human mediators and arbitrators in divorce, its role as a supportive tool holds promise. From data analysis to an iterative process, and to language refinement, leveraging AI can enhance the process and outcomes in divorce settlements. However, careful consideration of its limitations and ethical implications is crucial to ensure that AI enhances rather than detracts from the process. As technology continues to evolve, the integration of AI in divorce mediation and arbitration may evolve as an asset in achieving fair and efficient resolutions for all parties involved.
This article was recently published at https://adr-ontario.ca/ai-divorce/
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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