An urgent warning for all mediators about the risk to confidentiality caused by AI note taking on tech used in the mediation process.

One of my fellow mediators at The Mediation Specialists, Judith Hogarth, recently came across a salutary anecdote from a mediator’s post online (see below) about the inadvertent use of AI notetaking by a client. It provides an important warning for all mediators about the real-world challenges AI poses in our efforts to maintain confidentiality during the mediation process.

Given advances in AI, it is critical for mediators to now review mediation agreements and, where there is third party engagement, confidentiality agreements too, and make appropriate amendments to all documents from the introductory letter onwards to place a strict embargo on the use of any form of recording or notetaking AI facility being used on any tech equipment involved in the mediation process.

Elizabeth Bilton, a senior mediator on our team states “There will be ramifications for legal practice as well as mediation.  Changes to Agreements to mediate and terms of engagement for client care are within our control, the concerning aspect is the ground rules with others we are not contracting with.  The GDPR elements are also of concern”.

Members of our team are alerting professional bodies to our concerns and are sending out this post as we all feel the need to alert our fellow mediators and legal professionals. The following is a salutary tale for us all:

Anecdote:

One of the parties in a grievance mediation had Otter.ai installed on his computer for a previous meeting. He though (and, honestly, had been led to believe by the company) that he was the one triggering when it was used, and had wanted it to provide captions and a transcription for another meeting. He intended to use it once. Unbeknownst to him, it activated on EVERY MEETING. The worst part is no one noticed, so it is actually unclear how many meetings he’d been in that the AI had been activated on, but for this particular meeting, it sent the meeting host (my colleague) an email saying that it was RECORDING (which is illegal in this line of work highly illegal, there’s hearing in Congress right now on someone recording a negotiations meeting) the proceedings.

The goal of the email was for her to see how “helpful” of a tool that it was so that she could download it as well and enable it in her meetings. It sent her 1) an attendance summary (private); 2) a transcript of the meeting so far (illegal) and 3) a snippet of audio from the meeting (highly illegal). They had to stop the mediation entirely, switch to old school phones to see where the issue was and who had this enabled on their computer. The man was horribly embarrassed, and had to get help from his IT department to get the program uninstalled from his computer.

Genuinely, these AI tools are viruses. Because of this, we’ve been asking external people at the start of meetings if anyone else is present off-screen (a different story) or if anyone has AI programs installed on their computer.”

Judith Hogarth

Faiza Alleg Dolivet

Elizabeth Bilton

Byron Tyson

Kevin Smyth

Neil Boothroyd

Ann Allen Encontre

Helen Johnson

Appointment service required:

Tim Carter

Sheila Gooderham