Introduction:
Artificial Intelligence or AI is no longer an emerging innovation - it is now a transformative tool which has a potential of being considered the next industrial revolution. AI in legal space is not far behind! For legal practitioners AI is a productivity enhancing tool which can be used to analyze case-papers, articulate strategies, creating template documents, improve research, structure precise arguments, draft complex agreements and much more. In no time, it will be the team member with no threat of attrition.
In Alternate Dispute Resolution ("ADR"), legal practitioners, mediators and arbitrators are using AI to enhance efficiency and effectiveness. AI has shown immense promise in the area of precisely analyzing data in matter of minutes, which not only reduces the burden of spending several billable hours of the resources but also provides the team more space for strategic thinking.
While Artificial Intelligence has numerous benefits and appears to be the cutting edge technology, however we will be doing injustice to our human intellect to blindly implement AI in our systems without recognizing and understanding the limitations and risks that it comes with.
Risks:
Various studies and user data have exposed some known risks and shortcoming which legal practitioners must address before integrating AI in their systems, as these pitfalls have professional and ethical consequences.
- Data security and confidentiality
Confidentiality is the foundation of trust shared between an
attorney and client. Imagine, if highly sensitive documents
relating to mergers and acquisitions or a hotly contested divorce
are leaked. The consequences would be devastating and far reaching
to say the least - not just for the law firm but also for the
client. Using AI makes this risk real.
Uploading documents containing highly sensitive and confidential
information on AI platforms has the potential of exposing this data
to unauthorized access, data breaches and misuse. In fact, the
concern is not just restricted to confidentiality of the content,
but also with regard to further use of such data for the training
and upgrading the AI system. Water tight security for storage and
access of data, therefore, is a crucial concern while integrating
AI into work culture.
- Limitation of Technology
- Hallucination
In context of AI, Hallucination means creation of seemingly
credible but factually false and misleading information, which may
include generation of fake case-laws or statutes.
AI relies on large language model (LLM) which, with the help of
prompt engineering, can be finetuned to perform specific tasks
including doing targeted research. However, such models come with
inaccuracies present in the data they are trained in. This would
mean that a law practitioner, basing their research only on AI, may
become a victim of hallucinated data and may run a risk of
misrepresenting facts and information and even law in some
cases.
We all are aware of the unfortunate incident that happened before
US District Court where a law firm faced sanctions for filing a
motion referring to hallucinated information. The motion relied
upon 8 AI generated cases which did not exist.
- Systemic bias present in the dataset
Another significant risk of AI legal chat bots is that of
'systemic bias' or 'algorithmic
discrimination'.
The dataset relied upon by AI may have inherent complexities like
societal inequalities and other biases, which may potentially lead
to unfair outcomes in dispute resolution contexts and may affect
application of legal principles to relevant facts. If this data
reflects historical prejudices or is unrepresentative of the
broader population, the AI's decisions may perpetuate or
amplify existing biases leading to unfair treatment of an
individual or group.
Hence use of AI technology with unreliable data, may have serious
ethical concerns involving the principles of neutrality and
impartiality in ADR process.
- AI cannot replicate 'Human Factor'
Even though Artificial Intelligence has become a central part of
our work culture, human judgment, intuition, empathy and even
discretion is still indispensable. Human emotion and human
intelligence are critical components in adjudicating variety of
matters.
In ADR, fostering trust and confidence in the process is a key
factor. In mediation, especially in emotionally charged matters,
the resolution may go beyond purely legal considerations and in
such situations use of Artificial Intelligence will be
limited.
Similarly, in arbitrations, cross-examination of a witness involves
evaluation not only of the answers to the questions, but also on
the conduct, context, tone and tenor of the witness. Delegating
these aspects to AI may lead to flawed interpretations and
undesirable results.
- Transparency and accountability
Use of information in a fair, equitable, and transparent manner is foundation for ethical deployment of AI system. The opacity of AI, use of complex algorithms, lack of transparency in the decision-making process can undermine the foundational principles of accountability and fairness in the legal system. Clarity on data policy, algorithm transparency and open disclosure on limitations employed by the AI system, will generate awareness and ensure the attorneys adopt necessary precaution in usage of Artificial Intelligence.
Mitigation of Risk:
To mitigate the risks involved in integrating AI systems, a right balance needs to be maintained between usage of AI to drive efficiency and productive on one hand and the necessity to ensuring compliance with regulatory regime and protecting clients confidentiality on the other hand. Some of the simple best practices are:
- Complete disclosure and consent
Ethical use and integration of AI is a need of hour to enforce
trust and foster confidence in the dispute resolution process. In
order to being compliant with the fiduciary duty every lawyer
should adopt the practice of complete disclosure to their clients
regarding the use of AI technologies.
In ADR, the parties must be clearly informed about any planned use
of AI, the advantages and the limitations involved. A disclosure at
the very initial stage must be adopted as an industry practice.
This will empower the clients to make an informed decision and give
consent for use the AI technology.
- Human oversight to maintain control over AI
Although AI has made advancements towards data security and
confidentiality, however, it is at a very nascent stage and is
mostly unregulated. The most effective and imperative safeguard
while integrating AI into our work culture is and will remain,
continued presence of active human supervision and control.
In order to supervise effectively, legal practitioners should
minutely go through the fine print to understand the manner and
extent of use of confidential data keyed in to the AI platform.
Further, professionals should conduct periodic evaluations of the
security measures adopted by the AI platforms integrated in their
systems. Furthermore, to avoid a risk of hallucinated data and
potential inaccuracies which may lead to misrepresentation or
misinterpreting the law, a user must undertake reasonable inquiry
into the output produced by AI and ensure the reliance on research
is not without cross verification prior to presenting it before the
Court or in any proceeding.
- Development and implementation of regulatory framework
With explosive growth of AI technologies, there is a grave
urgency for developing and implementing a regulatory framework to
govern Artificial Intelligence industry especially in legal
practice. As of now, these technologies are evolving and newer
practices are being adopted on a daily basis.
Legislation is required for fixing accountability, ensuring
compliance with data privacy laws, framework to prohibit AI from
creating illegal content and to define parameters concerning
security measures. Although some countries and jurisdictions have
guidelines and advisories for ethical and responsible usage of AI,
still it is largely an unregulated space.
Further, considering ADR may involve cross border disputes with
overlapping AI technologies, it is advisable for the ADR
Institutions to create guidelines to agreeable AI-usage policies by
prescribing dos and donts. Internal policies and guidelines will
ensure safe, secure, and trustworthy setting for use of AI during
the life cycle of the dispute and will ensure a uniform approach in
using AI technology.
- Creating an AI ready work force - Awareness of Risks and Limitation of AI
While it is important to inculcate AI technology, it is equally important to upskill the workforce and make it AI ready. Artificial Intelligence is not meant for replacing humans but to augment and strengthen them. Lawyers and paralegals should not just be aware on how to use the AI technology but should also be made aware as to the extent to which reliance can be based on AI generated results.
Conclusion:
Reliance on AI for any dispute resolution mechanism cannot be unrestricted and unchecked. Work of lawyers, arbitrators and mediators is of great significance as in the process of adjudicating dispute they are also administrating justice which has serious consequences and impact commercial as well as individual rights of parties. Consequently, it is important to implement best practices to use Artificial Intelligence in an ethical manner. The duty falls, not just on the attorneys, but also on the arbitrators and mediators to disclose deployment of Artificial Intelligence during dispute resolution process.
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.
