| DC Mediation & Dispute Resolution Institute |
When the Mediator's Assistant Is a Machine
AI, confidentiality, and fairness in mediation — what the newest rulings mean for you.
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INSIGHTS · Mediation & Technology · September 2026
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Mediation has always run on one simple promise: what's said in the room, stays in the room. Generative AI is testing that promise in ways most mediation agreements never anticipated — and courts, ethics boards, and bar associations are starting to answer the hardest questions. The answers aren't the same everywhere.
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In this issue
• Confidentiality: why California and everyone else disagree
• The new court rules on disclosing AI-assisted filings
• Keeping bias out of AI-assisted mediation
• Enforcing a settlement once it's signed
• A checklist for running mediation remotely
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Confidentiality and Privilege: A Tale of Two Approaches
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Mediation confidentiality is a creature of statute, not an inherent privilege, and the statutes aren't uniform. The Uniform Mediation Act, adopted by many states, protects "mediation communications" from disclosure — but that protection can be waived, and courts increasingly treat a public AI tool as an outside third party rather than a participant in the process. Feed a settlement brief into a consumer chatbot in a UMA state, and you may have opened the communication to someone outside the mediation, waiving the very privilege you meant to protect.
California takes a different path. Its Evidence Code excludes mediation communications from evidence as a matter of public policy, not as a waivable privilege, and the state's high court has held there's no implied waiver even when those communications surface in open court. Sharing a document with a mediator or an AI tool retained for the mediation doesn't, by itself, break that protection.
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Practice Point
Absent a California-style exclusionary rule, assume that anything typed into a public AI tool has been shown to a third party. Use closed, contractually-bound systems for anything prepared for mediation, and put the ground rules in writing before the session starts.
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Courts Now Want to Know When You Used AI
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The 2023 sanctions in Mata v. Avianca, where a filing cited cases a chatbot had invented, reset expectations across the federal bench. Individual judges have since issued standing orders requiring lawyers to say whether generative AI touched a filing and to certify that a human verified every citation and fact. A few examples:
• N.D. Texas — certify whether AI was used and that a human reviewed it.
• E.D. Pennsylvania — name the tool, confirm citations were checked.
• D. New Jersey — identify the tool, describe which sections it touched.
• W.D. North Carolina — certify no AI was used, or that it was human-verified.
• N.D. California — label AI-assisted exhibits clearly.
None of this replaces ordinary professional duties — "the AI did it" hasn't worked as a defense to a Rule 11 sanction.
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Keeping the Mediator's Judgment in the Room
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Every model mediator standard rests on impartiality — a duty that doesn't pause when a mediator turns to a settlement-analysis tool. Algorithms trained on human data can absorb human bias. Three habits keep AI in its proper, advisory role:
• Bias-test before you rely on it — run similarly situated hypothetical parties and watch for outcomes that shift for no defensible reason.
• Keep a human in the loop, always — review every AI-generated suggestion line by line, and retain full authority to override it.
• Say so, out loud — tell parties when AI is assisting, and that final decisions are theirs, not the algorithm's.
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Enforcing the Deal Once It's Signed
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A mediated settlement is enforced like any other contract: it needs a genuine meeting of the minds, the capacity to agree, and — in many states — a signed writing that says the parties intend to be bound. Challenges built on claimed pressure or incapacity rarely succeed absent real fraud, duress, or a documented inability to understand the agreement. Ordinary advocacy, even vigorous advocacy, isn't coercion.
The practical lesson is procedural: confirm capacity, repeat the key terms aloud before closing, and give every party — especially anyone unrepresented — a real chance to ask questions before signing. For cross-border agreements, the 2019 UN Singapore Convention and the UNCITRAL Model Law are built to make mediated settlements enforceable the way arbitral awards already are.
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Remote Mediation: A Quick Checklist
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Video-on for every participant is now the baseline, not a courtesy — it's how a mediator confirms who's actually in the room.
1. Agree on platform, schedule, and ground rules.
2. Verify identities; cameras on for everyone.
3. Open with a joint session.
4. Move to private caucuses as needed, in properly separated rooms.
5. Return to joint session for negotiation.
6. Draft and sign, often by e-signature.
7. Close by reconfirming understanding and confidentiality obligations.
When parties sit in different states or countries, agree in advance on governing law, and where a party is in the EU, keep GDPR's data-handling expectations in mind.
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Jurisdiction at a glance
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| Jurisdiction |
Protection |
Waiver Rule |
| California |
Excluded by public policy |
No implied waiver |
| UMA states |
Confidential & privileged |
Written consent required |
| Federal ADR |
Confidential, narrow exceptions |
Third-party sharing likely breaches |
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Where this is headed
1. Legislatures should clarify, by statute, that mediation confidentiality covers approved AI processing.
2. Courts should harmonize AI-disclosure orders around a common baseline: name the tool, certify human verification.
3. Mediators and ADR providers should adopt written technology protocols for identity checks, data handling, and plain-language explanations.
4. Wider adoption of the UNCITRAL Model Law and Singapore Convention would strengthen cross-border enforcement.
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This article summarizes general legal and policy developments as of 2026 for informational purposes and does not constitute legal advice. Confidentiality, privilege, and disclosure rules vary by jurisdiction and change quickly — consult a licensed attorney about your specific situation.
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