UK: AI And Construction Law: An Essential And Inevitable Partnership - Part 2

Dispute Resolution And Predicting Dispute Outcomes

Wouldn't it be great to have a crystal ball to see into the future and understand the likely outcome of your dispute, before embarking on that costly adjudication or court proceedings?

Whilst this off-the-shelf crystal ball is not yet available in stores for immediate purchase, some exciting developments have taken place in legal tech over the past few years. We are now starting to see the use of new technologies in dispute resolution and indeed new studies and research allow us to glimpse what might be just around the corner.

Part 1 of this series considered AI and construction law in the context of risk and contract management, and looked at a few of the technologies that are available now to assist in this respect. Part 2 now looks at the use of AI in the context of dispute resolution and predicting the outcome of disputes.

AI and Dispute Resolution

It is now commonly accepted that the industry often uses the term "AI" generally to cover discussions around machine learning, automation, pattern recognition within text and the automation of extracting this text. This is known specifically as "applied" artificial intelligence and is well used in applications that require the performance of a specific task and/or an automated, logic-based decision or action.

With regard to machine learning, this is a system or software which "learns" from the data it processes, through the use of algorithms. The software can learn from tags already applied to the documents (supervised learning) or it can categorise/cluster documents itself based on common characteristics (unsupervised learning). A system can also learn from the success of its previous decisions (reinforcement learning). In reinforcement learning there is no correct answer from the outset, but the system learns through trial and error when a user/reviewer says whether it is right or wrong, as it goes along.

"Strong" AI are those processes which are equivalent to human intelligence and have the ability to reason, make decisions and replicate human cognitive functions.

In the context of construction, whilst "strong" AI is perhaps some way off, "applied" AI certainly is here and is in use to some extent already. Machine learning technologies and AI-based data analytics are employed at various stages of construction and energy projects: contract formation, project management, manufacturing and construction and dispute resolution.


In terms of dispute resolution, to date, the disclosure process perhaps has seen the most visible benefits from machine learning.

Disclosure, the stage of formal litigation or arbitration proceedings where each party discloses to the other the documents that are relevant to the issues in dispute, requires the processing and review of potentially millions of documents, depending on the case. Historically, these documents would be manually reviewed by paralegals and lawyers – a lengthy and costly exercise. Now, with "predictive coding" (i.e. computer or technology assisted review), parties can employ machine learning technologies to train the software to assist with the review of the data set. Lawyers tag documents with a particular status (i.e. "relevant" or "not relevant") and the software learns from this categorisation, identifying and tagging subsequent documents similarly. The software's algorithm is constantly updating as it learns from either further tagged documents or corrections lawyers have made to the software's previous output. Predictive coding allows for a more focused and efficient document review process.

At the moment, whilst the use of predictive coding is certainly increasing, there is still a somewhat hefty price tag for its use. Smaller, low value disputes are not necessarily able to justify this cost. However, with the rapid developments in technology these days, we may well see a change in this soon. Furthermore, the introduction of the Court's new Disclosure Pilot may also increase the use in machine learning and AI-based technologies.

On 1 January 2019 a two-year Disclosure Pilot scheme commenced in the Business and Property Courts in England and Wales, which include the Technology and Construction Court (TCC). A new Practice Direction to the Civil Procedure Rules (CPR) applies and the aim of the scheme is to facilitate and influence a change in the approach to disclosure of documents in the litigation process – including a greater use of technology in the process. Parties are required to consider the use of analytics and technology or computer-assisted review tools as a means of expediting document reviews. Where they have decided against the use of such tools (particularly when the number of documents to review exceeds 50,000), parties must justify that decision.

Big Data and Analytics

Dispute resolution inevitably concerns the analysis of data. Lawyers need to understand the issues and evidence in the case, analyse the strengths and weaknesses of that case and advise on their client's chances of success (amongst other things). Given the sheer amount of data generated each day (by next year the entire digital universe is expected to reach 44 zettabytes), the ability to analyse big data sets efficiently and effectively is of the utmost importance. Indeed, the ability to access, analyse and apply specific types of data could potentially have a strategic advantage to disputing parties.

Data sets of evidence in construction and energy disputes in particular can amount to many terabytes of data for each dispute – and no doubt with the advancement and increased use of new technologies in the design and construction of these projects, this is only set to rise.

Before turning to the resolution of disputes, in terms of dispute avoidance we are now starting to see AI-based, real-time analytics used on construction projects. For example, parties can jointly monitor and analyse metrics from on-site activities, allowing them to track and report transparently and instantly, and therefore react and adjust as needed. This may assist in avoiding or minimising the escalation of disputes.

In dispute resolution, the ability to analyse and harness big data efficiently and effectively may have a strategic advantage. The technology available now, including AI searching and clustering functionalities, can enable lawyers and their clients to interrogate big data sets and draw out patterns and connections in the documents and correspondence, and generally gain a deeper insight into the evidence and facts of the case. The technology currently being developed goes further and aims to provide parties with analytics to assist in the prediction of the outcome of the case. Data analytics and metrics which aid in predicting outcomes ultimately may shape the trajectory of a case, allowing parties each to decide whether to continue with the proceedings and/or at what point to reach a settlement.

Predicting Outcomes

Predicting the outcome of a case will depend on a number of both legal and non-legal factors. Having an understanding of these factors and access to data which analyses the influences of these factors on judicial decisions can be strategically advantageous: parties can make informed decisions during the course of the dispute process, manage expectations and possibly encourage early settlement.

Whilst the industry is only at the beginning of developing these technologies, there are platforms available now. For example, one UK solution has analysed the Commercial Court's decisions and provides smart data and metrics on its judges and their decisions. The solution provides data on issues such as what percentage of a particular type of claim is likely to succeed. What is the success rate of s. 68 arbitration appeals? What is the success rate in real estate claims? With regard to the data on specific judges, for example, how has a judge ruled in the past on a particular issue and what is his or her willingness to disagree with previous decisions? The platform recognises that the identity of a particular judge may influence the outcome of a case and therefore success rates and other issues are also shown in relation to a specific judge. Another example is a US solution which provides analytics on California judges and their decisions.

In addition to emerging technology which provides metrics and smart data for informing decision-making during a dispute, there are also several recent studies which have sought to demonstrate the power of computers when it comes to predicting the outcome of disputes.

In October 2017 software developed by a Cambridge start-up company CaseCrunch predicted the outcomes of 775 PPI mis-selling claims. The software was asked to predict "yes or no" as to whether the financial ombudsman would succeed in the claim. The software had an accuracy of 86%. The 112 lawyers who analysed the same 775 claims had an average of 62.3%. CaseCrunch said that if the question is defined precisely, as was the case with the 775 PPI claims, "machines are able to compete with and sometimes outperform human lawyers".

A further example is a study from researchers from University College London, University of Sheffield and University of Pennsylvania who were able to predict the results of human rights cases at the European Court of Human Rights (in respect of Articles 3, 6 and 8) with an accuracy of 79%.


Emerging AI-based platforms have the potential to transform the landscape of dispute resolution. Whilst we are only at the start of these exciting developments, it is clear that the use of analytics, big data and new digital technologies will enhance efficiency and efficacy in dispute resolution. The crystal ball is not yet available for purchase; however, solutions which provide smart data for lawyers and their clients to review evidence, make informed decisions and predict outcomes are rapidly evolving.

International Quarterly is produced quartely by Fenwick Elliott LLP, the leading specialist construction law firm in the UK, working with clients in the building, engineering and energy sectors throughout the world.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions