There is a persistent assumption that alternative dispute resolution carries a lighter data burden than litigation. The instinct is understandable. Arbitration and mediation were built to be faster and less formal than the courtroom they were meant to relieve. But the instinct is wrong, and counsel who rely on it are increasingly caught flat-footed. The volume of electronically stored information at issue in a commercial dispute does not shrink because the parties chose a private forum. If anything, the expectation of transparency travels with the parties into the room.
Knowing how to manage that information is no longer a specialty. It is a baseline obligation. Comment 8 to ABA Model Rule 1.1 is explicit: to maintain competence, a lawyer must keep abreast of the benefits and risks of relevant technology. eDiscovery and artificial intelligence are now squarely within that duty, and nowhere is the gap between obligation and practice more visible than in ADR.
§ 01 · eDiscovery does not stop at the courthouse door
Electronic discovery is the process of identifying, collecting, and producing ESI, and ESI is everything now: email, chat, documents, databases, social posts, the metadata behind all of it. In litigation the rules force a discipline around this. In arbitration and mediation, the discipline is something the parties have to build for themselves, often under a procedural framework that gives them wide latitude.
That latitude cuts both ways. In a complex intellectual-property or corporate matter, the production of a single decisive document can settle the dispute. The same flexibility that makes ADR attractive also breeds disagreement about the scope of discovery: what is relevant, what is proportionate, and how much one side can demand of the other before the burden becomes its own form of leverage. Counsel handling an arbitration should know the applicable provider rules on eDiscovery, including the JAMS rules, before the first exchange, not after a dispute over scope has already hardened.
My experience as a neutral is that scope fights are rarely about the documents. They are about uncertainty. When neither side can see the shape of the other's data, every request looks like overreach and every objection looks like concealment. The work, early, is to give the room enough shared visibility that the parties can argue about substance rather than shadows.
§ 02 · What AI actually changes
The honest version of the AI story in eDiscovery is narrower and more useful than the marketing version. Machine learning categorizes documents, surfaces themes, and flags likely-relevant material across volumes no review team could read in time. Technology-assisted review, or predictive coding, lets a model learn from human coding decisions and extend them across the larger set. The result is faster, cheaper review, which matters acutely in ADR, where parties chose the forum precisely to contain time and cost.
AI's reach now extends past review into the resolution itself. Systems can mine historical case data to estimate likely outcomes, informing the settle-or-proceed calculus. They can compress sprawling records into summaries that help a mediator or arbitrator orient quickly. These are aids to judgment, and that qualifier is the whole point.
Predictive coding can inherit the bias in its training set. It can also expose a party to charges of under-inclusivity in what was searched. AI outputs are inputs to judgment, never substitutes for it.
The failure modes are concrete. A skewed seed set teaches the model the wrong lesson and propagates it at scale. A poorly defended selection methodology opens a party to the argument that its production was under-inclusive by design. None of this is a reason to avoid the tools. It is a reason to keep a human accountable for the output and to be able to defend the methodology when an opponent, or the tribunal, asks how the set was built.
§ 03 · The duties that come with the tools
Two obligations sit on top of the technical work. The first is data protection. Handling sensitive ESI means complying with the regimes that govern it, from GDPR in the EU to CCPA in California, and the obligation intensifies in cross-border ADR where regimes conflict. The platform a party chooses is part of this calculus; its security posture is the party's exposure. Mishandling data does not just threaten the matter. It threatens the client relationship and the practitioner's reputation.
The second is candor. ADR runs on trust in a way litigation does not, because the parties consented to the process and to the neutral. When AI is used in a way that bears on the proceeding, the parties, and often the arbitrator specifically, should know. Disclosure is not a confession. It is the condition under which the technology strengthens the fairness of the process rather than quietly undermining it. This is the connective tissue across everything I write about AI in disputes: the tool is only as legitimate as the room's understanding of how it was used.
§ 04 · A working posture for practitioners
For counsel building this competence, the practical advice is unglamorous and durable. Stay current; the field moves and CLE, provider resources, and serious industry writing are how you keep pace. Learn the tools you rely on well enough to state their limits, not just their features. Collaborate without ego, with forensic experts and eDiscovery consultants on the technical side and with opposing counsel on setting reasonable discovery parameters. Keep clients informed in plain terms about cost, benefit, and risk. And develop the negotiation instinct to land discovery scope at a point that is transparent enough to be fair and bounded enough to be efficient.
That balance, transparency against efficiency, is the through-line. It is the same calculus whether the matter is headed for arbitration or whether it can be resolved in mediation, and it is the question I find parties most ready to answer once they can see their own data clearly. The technology will keep advancing. The discipline of using it carefully, disclosing it honestly, and keeping human judgment at the center is what will separate the practitioners who harness these tools from the ones who get caught out by them.