How Much AI in Arbitration is Too Much?

By Leslie King O’Neal

Lawyer Asks ChatGPT If Award Was AI-Generated

The vacatur petition alleges the arbitration award has “telltale signs of AI generation.” For example, the facts section includes “facts that are both untrue and not presented at trial or present in the record.” The petition asserts, “This sort of hallucinating or mixing up of facts is frequent when using AI tools to write content.”

In an interesting approach, Petitioner’s counsel had his law clerk ask ChatGPT if a human or AI wrote a particular paragraph. The result: “ChatGPT stated that the paragraph’s awkward phrasing, redundancy, incoherence and overgeneralizations suggest that the passage was generated by AI rather than written by a human.” So, ChatGPT testified against itself. If an arbitrator uses ChatGPT to assist in writing an award, is that sufficient to require vacatur?

If the Arbitrator Relied on AI, Did He Exceed His Authority?

Petitioner asserted if the arbitrator relied on AI to reach his ruling, this “betrayed the parties’ expectations of a well-reasoned decision rendered by a human arbitrator.” Petitioner stated courts have vacated awards where arbitrators outsource decision-making to someone other than the appointed arbitrator. [iii]  Of course, none of these cases involved delegating decision-making to an AI tool. Similarly, the AAA Code of Ethics for Arbitration in Commercial Disputes, written in 2004, [iv] prohibits arbitrators from delegating decision-making to another “person.” Even if not specifically covered in ethics rules or case law, it seems that arbitrators should not simply prompt an AI tool to “write an arbitration award based on the following facts and applying California law” and issue such an award. But could an arbitrator properly use such an AI-generated award as a starting place for drafting an award?

How Much AI is Too Much?

 

Arbitrators Are Using AI

AI tools are already part of everyday practice for lawyers and arbitrators. While writing this blog post, I received several “offers” for writing assistance from CoPilot. (I didn’t accept them, but perhaps I should have). Noted commentators on AI have stated, “[T]he reality is that AI is here to stay. The challenge facing society is to ensure that the design, development, and deployment of AI will do more good than bad — and that it improves the status quo.”[v]

Since the onset of generative AI, arbitrators and arbitral organizations such as AAA and JAMS have examined how AI tools can increase efficiency in arbitration processes.[vi]  AI use raises issues of confidentiality, bias, and due process; AI has the potential for hallucinations and “deep fakes.” But it also offers considerable time and cost savings for document review and summaries, creating time lines, drafting form orders and case assessment.  Current arbitration rules don’t address AI use in document review or the potential misuse of AI in arbitration proceedings. While the ABA and many state bar organizations have issued guidelines for lawyers’ AI use,[vii] currently there are only two published guidelines[viii] regarding arbitrator AI use.

SVAMC Guidelines

The Silicon Valley Arbitration and Mediation Center (SVAMC) published its Guidelines on the Use of Artificial Intelligence in Arbitration in 2024. Providing a framework for AI use in domestic or international arbitration, these guidelines assist all arbitration participants in dealing with AI applications. The Guidelines state it’s generally not necessary to disclose that AI tools were used in connection with an arbitration, but they state arbitrators “shall not delegate any part of their personal mandate to any artificial intelligence tool.”

CIARB Guideline for AI Use in Arbitration

In March 2025, the Chartered Institute of Arbitrators issued its Guideline on the Use of AI in Arbitration providing guidance to arbitration participants on using AI’s benefits while mitigating some of the risks AI creates. CIARB’s Guideline, Part IV, Article 8.2 states: “Arbitrators should not relinquish their decision-making powers to AI but may use AI to support more accurate and efficient processing of submitted information, always ensuring independent judgment.” 

Takeaways

• Lawyers and arbitrators should be aware that AI use in arbitration is increasing and they should be prepared to deal with AI issues.
• Recognize the benefits and the risks of AI use.
• Consider including AI Guidelines in your arbitration agreement to provide a framework for all participants in dealing with AI issues.
• AI users (lawyers and arbitrators) should “trust but verify” all AI output before using it.
• Arbitrators should be cautious in using AI tools to draft awards. They should not allow AI tools to usurp their decision-making process

---

[i] Lapaglia v. Valve Corp., (Case No: 25CV0833 RBM DDL, U.S. Dist. Ct., S.D. CA).

[ii] The vacatur petition alleged the arbitrator exceeded his powers by improperly consolidating the petitioner’s claims with 22 other individuals, although the arbitration agreement prohibited consolidation. Also, it alleged the arbitrator refused to hear pertinent and material evidence regarding Valve’s market share.

[iii] Citing Move, Inc. v. Citigroup Global Mkts., 840 F.3d 1152 (9^th Cir. 2016), Stivers v. Pierce, 71 F.3d 732 (9^th Cir. 1995) and an 1853 Virginia case, Bassett’s Adm’r v. Cunningham’s Adm’r, 50 Va. 684 (Va. 1853).

[iv] Canon V.C of the AAA Commercial Code of Ethics states: “An arbitrator should not delegate the duty to decide to any other person.” Commercial_Code_of_Ethics_for_Arbitrators_2010_10_14.pdf; JAMS Guidelines for Arbitrator Ethics has a similar rule, VIII.A: “An arbitrator should not delegate the duty to decide to any other person.” Considering AI’s widespread use perhaps these guidelines should be updated to include delegation to AI.

[v] Paul Grimm, Cary Coglianese, Maura Grossman, AI in the Courts: How Worried Should We Be? 107 Judicature No. 3 (2024)https://judicature.duke.edu/articles/ai-in-the-courts-how-worried-should-we-be/#:~:text=The%20U.S.%20Constitution%20vests%20decision%2Dmaking%20authority%20in,room%20for%20algorithmic%20hallucinations%20in%20judicial%20opinions.

[vi]How Arbitrators Are Harnessing Artificial Intelligence, AAA-ICDR Blog & News (posted 2/20/24) https://www.adr.org

[vii] Opinion 512, ABA Standing Committee on Ethics and Professional Responsibility https://www.americanbar.org/news/abanews/aba-news-archives/2024/07/aba-issues-first-ethics-guidance-ai-tools/;  On November 26, 2023, California issued “Practical Guidance for Use of Generative Artificial Intelligence in the Practice of Law.” https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Ethics/Ethics-Technology-Resources. See also, Florida Bar Ethics Opinion 24-1 (Jan. 2024)https://www.floridabar.org/etopinions/opinion-24-/#:~:text=Lawyers%20may%20use%20generative%20artificial,applicable%20restrictions%20on%20lawyer%20advertising.

[viii] The SVAMC Guidelines were published on April 30, 2024. https://svamc.org. They include a model clause to use in procedural orders. The CIARB Guideline was published in March, 2025. https://www.ciarb.org/ The Guideline’s appendices include a form agreement on using AI in arbitration and form procedural orders on using AI in arbitration..