Mintz On Air: Practical Policies — Real Versus Robot: The Benefits of AI-Assisted Mediations

In the latest episode of the Mintz On Air: Practical Policies podcast, Member Jen Rubin is joined by Judge Elizabeth Feffer and Curtis Holdsworth for an unscripted conversation about the potential benefits of AI-assisted mediation. This episode is part of a series of conversations designed to help employers navigate workplace changes and understand general legal considerations.

Together, Jen and her guests explore:

1. The role and value of mediation in legal disputes
2. Introducing artificial intelligence into the mediation process
3. Ethical and confidentiality considerations relevant in AI-assisted mediation
4. Use cases and cost benefits for AI-assisted mediation

Listen for insights on how artificial intelligence can help to achieve a more efficient, fair, cost-effective, and prompt way to mediate legal disputes for clients.

Practical Policies — Real Versus Robot: The Benefits of AI-Assisted Mediations Transcript

Jen Rubin: Welcome to Mintz On Air, the Practical Policies podcast. Today’s topic is “Real Versus Robot: The Benefits of AI-Assisted Mediations.” I’m Jen Rubin, a Member of the Mintz Employment Group with the San Diego–based Bicoastal Employment Practice, representing management, executives, and corporate boards. Thank you for joining our Mintz On Air podcast. If you have not tuned in to our previous podcasts and would like to access our content, please visit us at the Insights page at Mintz.com, or find us on Spotify.

Today I’m pleased to be joined by Judge Elizabeth Feffer and Curtis Holdsworth, who are going to bring perspectives about using AI and mediation. Elizabeth brings perspectives as a former judge and a current mediator, and Curtis brings perspectives as a lawyer entrepreneur who’s using cutting-edge technology to improve the mediation process. Believe me when I say this: after spending half my life on the 405 last week in LA to attend an in-person mediation, I’m looking forward to new technology to help in this process. So I’m really excited about this.

Let me briefly introduce Judge Feffer and Curtis. Since 2020, Judge Feffer has been providing mediation, arbitration, and referee services full time with ADR Services. Before then, Judge Feffer served on the Los Angeles Superior Court for 13 years, with assignments including presiding over an unlimited jurisdiction civil independent calendar court and a civil trial court in the Downtown Los Angeles Central District. Prior to her appointment to the bench, Judge Feffer worked as a law firm partner and trial lawyer litigating civil actions in state and federal court on behalf of both plaintiffs and defendants.

I’m thrilled to have you here, Judge Feffer — given your perspective as a lawyer, as a judge, and importantly, as a current mediator. Welcome.

Judge Elizabeth Feffer: Thank you so much. I’m so pleased to be here and have this conversation with the two of you.

JR: And Curtis Holdsworth is a longtime litigator and trial lawyer with a focus on business litigation and employment defense. Curtis has first-chair trial experience in both state and federal courts involving a broad array of industries, including major banks, investment firms, retailers, medical device manufacturers, and auto auction companies. Curtis is also the founder of Bot Mediation Inc., the first-of-its-kind artificial intelligence mediation platform, making dispute resolution more accessible, efficient, and cost effective. Bot Mediation doesn’t just streamline negotiations, it provides a truly neutral data-informed foundation for reaching settlements. I sat through the demo of Bot Mediation, and for all of you out there, you’ve got to try it. We’re going to be talking more about it in the course of this podcast. It is super cool and I highly recommend all of you to try this because it’s going to change the way mediations happen.

The Role and Value of Mediation in Legal Disputes

JR: Let me do some stage setting. Elizabeth, I’d like to start with you, especially given your perspective as a former lawyer, former judge, current mediator. What is mediation, and why is it important to the dispute resolution process within the framework of legal conflict?

EF: Thank you. Of course, mediation is a voluntary process. In mediation I no longer have my magic robe that I had on the bench. I can’t compel anybody to do anything. I cannot force anybody to do anything. But that’s good because conflict resolution and making peace — I think it’s part of human DNA. We have biblical phrases — “blessed are the peacemakers.” The importance of trying to solve conflicts, reach a resolution — sometimes they need help from a third party. That’s what a mediator does.

It’s a good way to resolve legal disputes. Litigation is stressful. I would see that in my clients when I was a litigator. Litigators, we’re hired guns. We go to court. We argue things. But it’s not our case. It’s our client’s case. When I was on the bench, I’d see that in court, litigants coming in for trial. I could see the stress on their faces. It’s not easy to sit there. And it takes years now. In LA Superior Court, some judges are setting trials three years out because of the caseload. It’s going to take three years of your life, going through depositions, going to court, and ultimately turning the decision over to strangers. Wouldn’t it be better if there’s a way you and the other side can sit down with a mediator, a neutral third party, whose goal is to get it settled? Mediation is a good way to save yourself time and energy. The mediator is not going to force you to settle, not going to beat you up over it, but they will point out that there’s a value to being done. There’s always a value to being done, and having certainty, and taking control of your life so you’re not living with this dispute for years. I have cases where the incidents go back to 2018, 2019. Do you want to go back in time that long — or even longer with some of these sex abuse cases — to the extraordinarily stressful moment, when maybe with mediation you could be done?

Introducing AI into the Mediation Process

JR: One of the important things is having that person who has no stake, right? Litigants have stakes in their case and in how they approach their case. But the mediator has no stake. Let me turn it over to you, Curtis, because you’ve been a longtime practicing lawyer. Tell us a little bit about litigation issues and mediation in the litigation process, and why people should consider it.

Curtis Holdsworth: Thanks so much for having me on your podcast, Jen, and thanks so much to Mintz for the gracious invitation. Like you said, I am a longtime business litigator, employment defense attorney, and I’ve always been fascinated by the cadence of a case and the negotiation process. As lawyers, there’s a sweet spot for when a negotiation is ripe to be had. And there are times where it’s maybe too early, and in some instances it’s too late, to negotiate a dispute. I’ve always tried to be sensitive to the moment when I felt I had positioned the case perfectly to obtain the optimal result for the client, whether it was a direct negotiation or with the assistance of somebody like Judge Feffer. Unfortunately, the really good mediators are just too good. They are very difficult to book. For me to get time with somebody like Elizabeth Feffer to work on a dispute, it probably would require three or four months of advance notice to get her on the calendar because she’s in such high demand. So I got to thinking, maybe there’s an intermediate solution. Maybe, if the case is small, we can bring an AI-driven solution to help resolve the case. So we don’t miss that magical moment when the parties are ready and the case is ripe to be settled. That was a big part of the impetus for developing an AI mediation platform for lawyers.

JR: Curtis, just to follow up on that, tell our listeners a little bit about data-informed valuation decisions. When it comes to mediation, you’re going to settle a case, right? Typically, you’re settling for money. Not always, but typically. So how do data-informed valuation decisions come into play in this context?

CH: Great question, Jen. There’s a lot of work and a lot of focus by law firms, insurance carriers, and large self-insureds over analytics. In other words, trying to take data about a case and then use predictive modeling. How long is it going to take, and what is it going to cost to resolve that claim? There’s a tremendous amount of work. There’s a lot of data. And we’re just at the very tip of the iceberg in terms of the potential of harnessing that data. I think eventually that data will become widely available. The cost will race down toward zero and the winners of the AI game, I believe, are going to be folks that build elegant, easy-to-use tools, leveraging that data, as opposed to certain entities having unique access to it. I believe eventually it will be fully accessible. So that is what Bot Mediation is, just one of countless examples of a tool trying to harness that data. My passion or focus is different than most, insofar as most tools are designed to produce law-firm or lawyer deliverables in written form. Bot Mediation is completely different because it is focused on a nonwritten deliverable — namely a negotiation facilitator.

Finally, I’m intrigued by the dance of a negotiation and game theory to get to a resolution rather than just being focused on the claim value. That was a big part of building this platform: trying to figure out a data-driven solution to the dance. Ultimately we proved that there is an algorithmic, AI way to predict what parties need to do during the course of a negotiation for different case types in order to be able to position themselves to settle. We harness that data, and we coded our system accordingly.

Ethical and Confidentiality Considerations in AI-Assisted Mediation

JR: It’s interesting to me because, as practicing lawyers know and as folks who unfortunately are involved in litigation on the client side know, a lot of the issues relating to mediation that could either make or break the settlement relate to valuation decisions. We’ll get to that in a minute. Before we do, I think it’s important that people understand that there are issues associated with using AI in the context of mediation when it comes to ethical uses and things like that. Elizabeth, can you talk a little bit about the responsible uses of AI in this context?

EF: Obviously AI is a huge topic. It seems you can’t go to a bar event or a conference without there being a discussion on it, which is important because it’s a new tool. AI is not LexisNexis, where if you say, “Find me a case in the second DCA where there’s an MSJ granted on this issue and it was reversed on appeal.” It’s generative AI. If that case doesn’t exist, it will create a made-up one for you. It’s not just limited to what’s been in the media. AI learns. Apparently ChatGPT gets some of the knowledge it has from Wikipedia, from Reddit. I don’t know about you, but I wouldn’t base a legal brief on Wikipedia or Reddit. You need to do your research. But more importantly than the “garbage in / garbage out” aspect of AI, which is real and not something that should be overlooked, is a confidentiality aspect. If your mediator is feeding your mediation briefs into AI, or a lot of people want a confidentiality clause, that is an advantage of mediation. AI is not confidential in core, right? Are you feeding in your client’s proprietary information? Are you feeding information into an AI that will then learn it and give up your client’s confidential information? Mediation is confidential. I do not reveal who my clients are or why I work with these law firms. You’re not going to see me putting that on LinkedIn. But sloppy use of AI by a mediator could result in the clients being divulged. I think it’s helpful, especially for mediation, to protect the confidentiality of people, to be very careful of what is inputted and what the AI is doing with it. Often what you put in can be pulled out. It doesn’t remain in that AI system. Other people might say to the AI, “I want to see the NDA from this person or this client.” If someone improperly fed that into the AI, you could be receiving a lot of confidential information that was intended to stay confidential.

JR: It raises the risk profile of using AI in the context of mediation. For that, Curtis, tell us about Bot Mediation and online dispute resolution and how Bot Mediation was created to address some of these issues, and the benefit that it provides.

CH: Bot Mediation is often compared to a live mediation or real mediator a bit more than what I ever envisioned. It’s as much akin to online dispute resolution in its conventional sense as it is to a live mediator. It was built right down the middle: One extreme is to hire a live mediator — you can have considerable delay if they’re experienced and popular. The other extreme is to get on the phone and try to resolve a case without any third-party influence or help. Bot Mediation was built right down the middle of those two extremes to give you more than just a bilateral exchange of emails trying to resolve a case, but without the bells and whistles of a live mediator. Therefore, you get what you pay for. It takes a fraction of time to conduct or convene a bot mediation, because you literally just agree with opposing counsel on a time, and you log in. You’re not dependent on the availability of a human mediator because you’re dealing with an AI-built mediator for any bot mediation.

JR: Let me ask you, Curtis, how do you address the confidentiality issues in the context of Bot Mediation?

CH: It is probably at the upper echelon of security compared to conventional mediation, insofar as mediation firms are at the mercy of the mediators. Generally, mediators are independent contractors. They call the shots. They’re essentially entrepreneurs running their own practice under the umbrella of a bigger brand. From a security standpoint, for better or for worse, an ADR firm is at the mercy of its weakest link. If a big mediation firm has an old-school mediator who is accustomed to sending emails back and forth with prospective lawyers and accepting mediation briefs on their AOL account, well, that could be an issue. We don’t do that. We have a HIPAA-compliant, secured portal that ingests case form information — case fields that are basic to the claim, like who’s opposing counsel, is this case in litigation or not, is it pre-lit or post-lit? Then you attach a mediation brief that’s ingested into the same ecosystem, which is a secure, HIPAA-compliant form. As technology-focused people, we are determined to ensure that security. There’s a higher sensitivity about the importance of security among people who are building technology than people who are accustomed to exchanging deliverables like mediation briefs by email. Building a platform, especially a platform with ambition to be a regular part of the workflow for insurance companies, security and risk avoidance were priority number one, because insurance carriers will never work with a mediation firm, whether it’s AI or otherwise, unless they have confidence in the security of their submissions.

Bot Mediation in Practice: Use Cases, Cost, and Human vs. AI Dynamics

JR: Now that we’ve established that we’ve got a secure digital ecosystem here, how does it work? How do you go to the bot and say, help me settle the case?

CH: The first part of the process is pick and shovel, just like a regular mediation. Like I said, you’re submitting a brief, but always in a secure mode to Bot Mediation. The second part of the process is what’s entirely different, entirely disruptive. There is no Wizard of Oz behind the scenes, controlling what the bot says. There’s nobody peeking in to see what’s happening. It’s a black box. We at Bot Mediation have no control over the process whatsoever — the actual negotiation is entirely driven by the artificial intelligence. So you’re engaging with the AI-built mediator, who’s informed by the case information. It’s very much a Zoom-like experience. You’re in a joint session, which is traditionally the norm for mediation where everybody is involved in a discussion with the mediator. The mediator is talking to everybody at the same time. And then it transitions into breakout sessions with the plaintiff and then the defendant. But it’s a fully synchronous platform. In many respects it resembles a mediation on a Zoom with a mediator who is just much faster. I would say the biggest distinction is you don’t have the ability to have an unscripted conversation with the AI mediator. The AI mediator will tell you what he or she thinks and will push back against you if he or she doesn’t like your offer, your counter-offer, et cetera. This version of Bot Mediation does not allow lawyers to engage, unscripted. The data set is also built on rails so that you will not experience a hallucination on Bot Mediation because that was imperative when we built the system.

JR: I actually did experience a hallucination in person last week in LA, but I have to set that aside. Again, people should see this for themselves because it’s very cool, how it works. You could feed in a ridiculous number, and the bot will come back and say, “stop wasting my time.” In a nicer way. Like, “this is probably not going to lead to a successful negotiation.” But I want to get at one really interesting aspect about Bot Mediation: Explain how the cost works, because this is something that I think could appeal to people.

CH: We priced Bot Mediation at what we felt was well below a half-day mediation, or maybe akin to a speed mediation. We felt it was difficult to charge a lawyer the same amount as what they would pay to sit down with somebody of Judge Feffer’s caliber for a half day. It doesn’t make any sense to use Bot Mediation if you can get into a very nuanced discussion with a retired judge for the same price. So we had to price it aggressively. We charge $1,500 per side, but only if you settle the case, at this phase of the business. The rationale for that is twofold. Number one, we acknowledge and accept that this is new and disruptive, much like Zoom mediation was five years ago. I’m dating myself, but back then I thought it was crazy to try to see a judge remotely, but here we are. So we understand that there’s a significant element of disruption, and to get lawyers to iterate away from their normal workflow of engaging exclusively with a human mediator and to layer in some AI mediation as part of their toolbox is a significant ask on our part. So we want to make it entirely risk-free. If you settle your case, I think the lawyers are thrilled to pay us $1,500 for that result. And if it doesn’t settle, there’s still considerable value to be gained. We are collecting important settlement information with every session. So every session is a win.

Whether you settle or not, there’s a lot of value to be gained in a mediation. You can roll off of a negotiation with Judge Feffer and it could put you on a fast track to a settlement in due course before that summary judgment is ramped up, before you go to trial. Good practitioners will squeeze a lot of juice out of the berry, whether they settle with the mediator or not. The same is true for Bot Mediation. There’s a lot of value to getting a party on the platform, getting people moving. You can always roll off and then get a professional like Judge Feffer to close a case. Her close rate is probably going to be substantially higher if you’ve taken that preliminary step. Because at the end of the day, negotiation to a settlement is generally a process involving a number of steps — whether it’s working with your client, seeing a judge at an E&E in federal court, a mandatory settlement conference as a precursor to a live mediation. Normally when you look back after you’ve settled a case, there’s been two or three key moments that have warmed the parties up to be able to settle it. And I view Bot Mediation as a step in a process toward settlement.

JR: It’s great to have this tool available because there are a lot of different ways to settle cases. But I want to take it back to the human aspect, because at least for now, we still fortunately have human mediators who play an important part in the aspects of control and valuation judgments when it comes to mediation. That’s an aspect I think is an important part of a successful mediation. Can you comment on that, Elizabeth?

EF: In mediation there’s an aggrieved person or someone who perceives that he or she is aggrieved or was wronged. A huge part of mediation is listening to people. They just need to be heard before you can start the process. Sex abuse cases come to mind. I’ve had some people unload on me for hours, going back decades. Even with employment cases, look, it’s like a divorce from your work life, right? I’ve had employment cases where the plaintiff has needed to talk for a long time, and I listen nonjudgmentally. Or oftentimes people will form a partnership for a business because they’d been best friends since childhood, and it doesn’t work out well. I joke with lawyers about which partner is the grasshopper and which one is the ant. One is always perceiving the other one was working harder.

There are strong emotions. So you have to acknowledge that, because it’s a voluntary process. Mindset is so important. Do you really win a mediation? You win a lawsuit or you lose a lawsuit, but how do you win a mediation? Especially since the word is “settle.” So there’s that mindset of, “I don’t want to cave in.” There are always people involved and you need to let them talk and then gently guide them. Sometimes people aren’t ready for the evaluative mediation.

I’ve seen these cases in court. I’ve had more than 75 jury trials. That’s a lot of jurors. Everyone comes in with a different perspective. So you don’t know what will happen, and there is certainly a value to ending a dispute on your own terms. Mediation is a way that you can end the dispute on your own terms.

I would also make the point: there are times in mediation where if people suggest a number and I say that’s too big, or not big enough, I’ll get blowback. Because everyone’s case is worth a bazillion dollars. Right. Okay. But when it’s AI, an intelligent machine, devoid of emotions, telling you your case is worth, soaking wet, $200,000, maybe they’re more receptive to hearing it than they would to hearing it from a person. Sometimes the AI is the first step. If the machine, the AI, has said your case is worth no more than $200,000, and then you go to a mediator, like a retired judge, who gives a similar figure, you might be more inclined to accept it.

JR: Thank you, Elizabeth, for your thoughts on the human factor. It brings to mind the concept that “settle” is not a derogatory term. I also thought it was interesting to hear your perspective that sometimes listening to people is part of mediation — and now I have a new term that I’m going to use, “mediation therapy.” And that’s a great segue back to Curtis, because I think one of the values you get from Bot Mediation is that lack of holding on to the human piece. So Curtis, how does that come into play in terms of using AI for mediation? And is that a good thing?

CH: I think it depends on your perspective. There are always going to be folks that want to have a live mediator, or clients that must have that interpersonal exchange with a live mediator. My play with Bot Mediation is toward a large swath of cases that really don’t involve a lot of emotion. A lot of them are lawyer driven. I call it drive-by litigation, dram shop litigation, serial litigation — it’s just a tick above nuisance value. The motivation is by the attorney. The attorney found the claimant and the claimant’s practically forgotten about the merits and gets a tiny amount of money relative to the attorney’s fees that are going to be paid by the defendant. So those are the claim types that I think are a great use-case for something like Bot Mediation.

An example would be a personal injury claim where there’s a minimal policy limit, which recently was increased from $15,000 to $25,000, something of that range. There’s not a lot of litigation or mediation you can responsibly do for claims of that size. So the question became, are we going to litigate these as best we can and try to resolve them without the benefit of any mediation at all? But now with Bot Mediation and an AI solution, you have access to many aspects of mediation without the cost, because it’s far below the pay grade of a live mediator. I do feel that these smaller personal injury matters are a great fit. There’s tremendous interest in Bot Mediation from both sides of the V, both the defense and the plaintiff’s side, on injury cases. There’s also tremendous interest on employment matters, particularly single-party cases. We’re not talking about PAGA cases and class actions and things of that nature. Those cases you can justify hiring a live mediator because you’ve got millions of dollars at stake. But when you got a single-party case and most of the damages are general damages, Bot Mediation can be a benefit.

JR: The large class actions and the PAGA claims I think might lend themselves extremely well to Bot Mediation, because so many of those claims are a matter of feeding a bunch of Excel spreadsheets into these systems. So I wouldn’t give up on that, Bot Mediation Inc. I do see this role for smaller cases versus the cases when you need the “mediation therapy” — I love that new term. But I do think cases that are driven by numbers could really use AI to help resolve them, because sometimes it is a matter of just doing math, to be perfectly honest.

Wrap-up and Recap

JR: The other thing I want to say: Mintz has no interest in Bot Mediation Inc. There’s no money coming our way, nor in ADR Services. I just want to make that clear.

Where this leads me in closing, and what I find so interesting about all of this, is that there’s a place for both humans and bots to work together to achieve a more efficient, fair, and acceptable way to mediate cases. That’s one of the reasons I’m excited about these programs and what you’re doing, Curtis, with your company. Our profession and the legal system is changing so rapidly. On a daily basis, these advances are coming through. We have to be prepared to adopt these new technologies and go where these technologies are taking us in order to make these systems more fair, cost effective, and prompt. To me as a lawyer, trust and time are two things that are very important, as I think they are to any other lawyer and certainly to our clients. I think these systems are going to be important ways to maximize both the trust and the time that gets put into resolving legal disputes, which is so important as a part of the legal process.

Once again, I’m Jen Rubin. Thank you, Judge Feffer and Curtis Holdsworth, for your time today. This has been a fun and interesting conversation. And I hope it’s given people some ideas about how to utilize new technologies to resolve disputes in a way that is most effective for their clients. Thank you to those who tuned into our Practical Policies podcast. Again, visit us at Mintz.com for more content and commentary, or find us on Spotify.

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