conflict analysis

AI Regulations, Mediators and Arbitrators

European AI Act and US HR 3369 AI regulations will require mediators to adopt more rigorous practices in AI development and deployment, focusing on compliance, risk management, and ethical considerations. While this may present challenges, it also offers opportunities for innovation and leadership in responsible AI development and deployment.

Comparison PointsEU AI ActUS HR 3369
Definition of AIBroad definition encompassing software developed with machine learning, logic- and knowledge-based approaches, and statistical approaches, including deep learning.Focuses on systems using machine learning techniques to make predictions, recommendations, or decisions influencing real-world outcomes, without a specific definition.
Scope of ApplicationApplies to AI systems placed on the market, put into service, or used in the EU, regardless of where they are developed.Targets companies providing AI systems in critical sectors such as healthcare, transportation, and criminal justice, focusing on systems that pose significant risks to privacy, security, or other public interests.
Definition of High RiskHigh risk if AI systems are intended to be used as safety components of products or in a range of critical applications (e.g., employment, essential public services) where significant risks can arise.High risk if the AI's use involves significant impacts on individuals’ rights, safety, or access to critical services, or poses systemic risks to sectors such as financial stability or public safety.
Compliance ObligationsMandatory risk assessment, adherence to high-quality datasets, transparency and provision of information to users, robustness, accuracy, and security measures.Requires impact assessments, bias and discrimination testing, transparency reports, and privacy safeguards for high-risk AI systems.
Enforcement MechanismsSignificant fines for non-compliance, up to 6% of annual global turnover or €30 million, whichever is higher, alongside other corrective measures.Enforcement by relevant federal agencies, with penalties not specified but could include fines, injunctions, and corrective actions.
Transparency RequirementsMandatory sharing of information about the AI system’s capabilities and limitations, ensuring users are informed.Mandatory disclosure of the logic, data, and design processes of high-risk AI systems to regulators and, in some cases, to the public.
Data GovernanceRequirements for data quality and data management, particularly for high-risk AI systems, to ensure data used is without biases and respects privacy.Focus on preventing discrimination and ensuring privacy and security of personal data used by AI systems.
Human OversightMandatory human oversight for high-risk AI systems to ensure they can be overridden or disabled and to reduce risks.Stresses the importance of human review and decision-making authority, particularly in critical decisions affecting individuals’ rights or safety.
Technical Documentation and Record-KeepingHigh-risk AI systems must have technical documentation and logs to ensure traceability and accountability.Mandates detailed documentation of the design, development process, and training data for high-risk AI systems, to facilitate oversight.
Market Surveillance and MonitoringCompetent authorities will monitor the market to ensure compliance, including the ability to carry out inspections and impose remedies.Requires federal agencies to monitor compliance and conduct regular evaluations of AI systems’ impacts in critical sectors.

The European Union's (EU) Parliament passed the Artificial Intelligence (AI) Act on March 13, 2024, with 523 votes in favor, 46 against, and 49 abstentions. The act is the world's first major regulatory framework for AI, and aims to ensure safety, compliance with fundamental rights, and boost innovation. HR 3369 bill is still in the legislative process and its final form could change. Therefore, mediators and other professionals using AI tools should monitor the progress of this bill and consult with legal experts to understand its potential impact.

Potential Effect on Mediators & Arbitrators using Artificial Intelligence

The impact of these regulations on mediators & arbitrators—entities that facilitate the negotiation and implementation of AI technologies—can be complicated.

  • Increased Compliance and Oversight: Mediators and arbitrators will need to ensure that AI systems they develop, deploy, or mediate comply with relevant regulations. This includes conducting risk assessments, ensuring data privacy and security measures, and adhering to standards of transparency and accountability. Compliance could increase operational costs and require more rigorous oversight mechanisms.
  • Risk Management: The European AI Act, for example, categorizes AI systems according to the risk they pose, from minimal risk to unacceptable risk. Mediators will play a crucial role in evaluating AI systems for risk classification and ensuring that high-risk AI systems meet strict regulatory requirements. This could involve implementing robust risk management frameworks and ensuring ongoing monitoring and reporting.
  • Ethical and Social Considerations: Both the European AI Act and US regulations emphasize ethical AI use, including fairness, non-discrimination, and the protection of fundamental rights. Mediators will need to integrate these considerations into their AI systems and business practices, potentially influencing the design and deployment of AI technologies. In many cases, the implementation will always require the mediator or arbitrator to be the human in the middle to insure fairness and non-discrimination.
  • Innovation and Market Access: While regulations aim to mitigate risks associated with AI, they also seek to establish clear rules that can encourage innovation by providing a stable legal environment. Mediators might find new opportunities in developing and promoting AI solutions that align with these regulatory frameworks, facilitating market access, especially in sensitive areas like healthcare, transportation, and public services.
  • Education: Mediators and arbitrators will need to invest in educating their workforce about regulatory requirements and ethical AI practices and the overlap with existing standards in mediation ethical behavior. This includes training developers, data scientists, and management on compliance, risk management, and the societal implications of AI technologies.
  • Legal and Liability Implications: With new regulations, there could be increased legal and liability implications for mediators, especially regarding the misuse or failure of AI systems. Mediators will need to be vigilant in understanding their legal responsibilities and ensuring that AI systems are developed and deployed in a manner that minimizes legal risks.
  • The European AI Act, passed by the European Parliament, is a comprehensive piece of legislation that targets the risks posed by artificial intelligence (AI) applications. It has significant implications for mediators and arbitrators who are utilizing AI, as it places obligations on the use of AI in ‘high risk’ applications, such as justice. In the case of HR 3369, the bill requires the National Telecommunications and Information Administration (NTIA) to study and report on accountability measures for AI systems. This could impact how mediators use AI tools, as they may need to ensure that their AI systems meet these accountability measures.

Initial Evaluation of NextLevel™ Mediation for Compliance with EU AI Act

ai regulation

While the use of AI will streamline some aspects of online dispute resolution and even prevent certain types of disputes through predictive modeling and improved decision-making tools, its broad application across various industry sectors is likely to generate new kinds of disputes that mediators and arbitrators will need to address. The demand for these services could grow, and the profession might also need to adapt to the changing landscape by acquiring new skills and knowledge relevant to AI. For example:

  • As AI systems become more prevalent in industries ranging from finance to healthcare, new types of disputes may arise related to intellectual property, data privacy, algorithmic bias, and performance failures. These disputes may require mediators and arbitrators with specialized knowledge in AI and related fields.
  • AI's global reach may lead to an increase in international and cross-border disputes, particularly given the differences in regulations and legal standards across jurisdictions. This could lead to more complex mediation and arbitration cases that require expertise in international law and cross-jurisdictional issues.
  • 3. The automation of jobs by AI could lead to disputes related to employment, including wrongful termination, discrimination, and adjustment of workers' roles. Mediators and arbitrators may see an increase in these types of cases as workplaces continue to evolve with AI integration.

The regulatory framework for AI in legal contexts, including mediation and arbitration, is indeed developing. Different jurisdictions may have varying levels of guidance and regulation concerning the use of AI, leading to a somewhat fragmented global landscape. These early stages of AI use in mediation and arbitration will certainly develop over the next few years.