Disputes, AI and modern law
Q1 How should parties seek and agree a seat for ADR, and what advantages does your jurisdiction offer?
In Australia, Alternative Dispute Resolution (ADR) is the term for a process often called 'mediation' and involves exploring resolution or outcomes before or as an alternative to a court determination. ADR has many applications for all and any types of disputes including private disputes, family and business disputes. The use of ADR is most useful where parties express a willingness to act genuinely and cooperate to explore options to resolve their dispute. The reason for and the benefits of ADR include:
eases the way of access to justice as it saves money and time while maintaining confidentiality.
can repair the damaged relationship and involve a win/win for parties.
considered less stressful than exposure to the court process.
more flexible process, and leading to broader outcomes than a court determination.
In Australia, ADR is required (with exceptions) in many jurisdictions including in the Supreme and Federal Courts and in family law proceedings. Certain jurisdictions have a longer history of ADR – family law disputes, juvenile offender issues and Indigenous Australian and Torres Strait Islander issues are some examples.
In commercial disputes in Australia, mediation has many useful advantages including:
(a) mediations are invariably conducted with the assistance of an experienced mediator (often a senior lawyer), whose role is to facilitate discussion to explore resolution.
(b) mediations are held without prejudice, i.e. what is said at a mediation cannot be used against a party at a subsequent hearing if there is no resolution, and they are designed to be neutral; the parties decide the terms of any settlement.
(c) mediations are confidential and participants are often asked to sign an agreement to that effect.
(d) mediations give parties the opportunity to avoid the significant costs, uncertainty and formalities of the legal process, often saving time
For lawyers who seriously engage in dispute resolution, the use of mediation to resolve disputes is critical and is a necessary tool in any litigator's arsenal.
Q2 Have you seen or do you expect to see a rise in the use of AI to discover infringements and actionable matters?
Although AI is a relatively recent topic of global conversation, firms had been investing in AI for years. It was used as soon as it was able to be used. This is evidenced through the now infamous case of Mata v Avianca. Here, a lawyer in the US used ChatGPT to create their submissions, but ChatGPT fabricated several cases that did not exist. Rather than admit his mistake or withdraw the submissions, they continued to insist the cases were real and did not admit to using AI until the court issued an order threatening them with sanctions. The use of AI was not the central problem here; it was the lawyer's overreliance on it, his failure to check that the AI's information was correct. The solicitor was punished in the form of sanctions and a fine.
Police use AI in many ways including to help determine who is most likely to have committed a crime, e.g. surveillance to flag suspicious activity for human review – tasks that would otherwise take a human a long time to do. The danger is that AI can be coded with human bias. In this case, AI cannot tell the difference between why a certain subpopulation may have higher rates of offending.
The law will be more accessible to potential clients as they will be able to inexpensively discover if they have a potential cause of action. On the other hand, AI may lead to an increase in matters. For example, the question of whether internet scraping of publicly available but copyrighted materials to train AI systems is an infringement on someone's intellectual property rights is yet to be determined or an increased number of killings from autonomous weapon systems.
Q3 What questions does AI pose for liability – who is accountable for the actions of AI and has your jurisdiction prepared for the question?
Australia has 8 AI Ethics Principles defined by the Government that are a voluntary and aspirational framework, namely:
(a) AI systems should benefit individuals, society and the environment.
(b) AI systems should respect human rights, diversity, and the autonomyof individuals.
(c) AI systems should be inclusive and accessible they should not involve or result in unfair discrimination.
(d) AI systems should respect and uphold privacy rights and data protection andensure the security of data.
(e) AI systems should reliably operate in accordance with their intended purpose.
(f) There should be transparency and responsible disclosure, so people are aware when an AI system is engaging with them.
(g) When an AI system significantly impacts a person, community, groupor environment, there should be a
timely process to allow a challenge to the use of the AI system.
(h) Those responsible for different phases of the AI system lifecycle should be identifiable and accountable for the outcomes of the AI systems.
There are many applications of the use of AI by legal practitioners to save time. Presently, a significant failure in Australia is a lack of AI-specific legislation and preparing legal practitioners for the use of AI, unlike
in other jurisdictions. The ethical risks for legal practitioners include:
where there is risk of hallucination.
where there is risk of client information being leaked either because the AI firm can share that information or there is a hack.
inability to prepare against the bias of the AI or know the quality of the information the AI provides.
Read more in our brand-new publication, The Visionaries.
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.
