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Two trends in mediation, one recent and the other decades old, threaten to combine to further erode the effectiveness of the mediation process.
The older trend is the market driven move away from the exchange of positions in the presence of the decision makers; the latter is the increasing use of artificial intelligence by counsel in preparation for and participation in mediation.
Mini-trials have the potential to address both trends and trial judges in Indiana are specifically authorized to order parties to participate in mini-trials.
Mediators, attorneys and commentators have, for the last 10 to 15 years, lamented the shift away from joint sessions and the resulting absence of an exchange of positions in the presence of decision makers. The oft-quoted 2014 article by Eric Galton and Tracy Allen stated the issue graphically:
“Many of us wondered what the mutant child of the marriage of law and mediation might look like. Now we know; deconstruct the process and turn mediation into the more familiar judicial settlement conference. Enlist the mediator to do everyone’s “heavy lifting” and if that doesn’t work, try a mediator’s proposal. In this manner, we take the parties and their emotions entirely out of the process and allow the court room advocates to stay in their familiar role rather than serve as settlement coaches and counselors.” “Don’t Torch the Joint Sessions,” 21 Disp. Resol. Mag. 25 (2014).
This reality continues to the present, with the resulting difficulty mediators have in ensuring that decision makers have a full opportunity to hear, evaluate and discuss each party’s respective position; an opportunity critical in facilitating a meaningful risk analysis.
A more recent but equally potentially negative trend in alternative dispute resolution and mediation is the increasing use of AI in both mediation preparation and participation.
A myriad of mediation AI apps and platforms now offer software that use decision-science based applications to help mediators and lawyers systematically analyze conflicts. However, several studies, including a recent study conducted by the MIT Media lab and published in June of 2025 revealed potential neurological consequences of AI use.
The preliminary findings indicated that 83.3% of participants using ChatGPT to compose materials were unable to recall details of their writing. Labeled the “amnesia effect”, this phenomenon of “cognitive offloading” was similar to and foreshadowed by previous historic parallels in the use of calculators and Google, resulting in a decline or absence of critical thinking.
A recent article in Mediate.com stated the issue in relation to mediation as follows:
“Mediators and attorneys now have AI assistants that can draft Settlement proposals, summarize case law, analyze negotiation tactics and more…. Professionals trained to listen, reason critically, and recall complex details may find that constant AI assistance changes how they think.” Bergman, “Responsible AI Use in Mediation and Legal Practice,” Mediate.com (July 2, 2025).
Although it may be subtle, there is the potential for a synergistic effect between the mediation participant’s detachment resulting from a “settlement conference” model mediation and the additional cognitive withdrawal resulting from a reliance on AI.
Unfortunately, mediators and attorneys have not been successful in reversing or even substantially impeding the trend away from a serious exchange of positions and it is unlikely that the parties—left to their own devices—will slow or restrict the use and reliance on AI in preparing for and participating in mediations.
Rather, just as they were the primary force injecting mediation into the trial process and propelling its use forward since 1992, similarly it may fall to Indiana’s trial judges to protect the long-term viability of ADR.
Mini-trials
Although the January 2025 amendments to Indiana’s ADR Rule did not make substantive changes to the rules applying to civil cases, one purpose or goal of the amendments was, as stated by Chief Justice Loretta Rush, “to encourage the use of a wide variety of ADR methods.”
It is suggested that Indiana’s trial judges, in the narrow band of appropriate cases, consider ordering parties to participate in a mini-trial pursuant to ADR Rule 4, instead of mediation under Rule 2.
Mini-trial is defined in the ADR Rules as a “settlement method in which each side presents a highly abbreviated summary of the case to senior officials who are authorized to settle the case.” Rule 4.4 provides that the court should set a time and place for the process and “direct representatives with settlement authority to meet and allow attorneys for the parties to present their respective positions in regard to its litigation in an effort to settle the litigation. The rules further anticipate the participation of a neutral adviser who “presides over the proceeding, and upon request, gives advisory opinions and rulings”.
Understanding that the role of the neutral is not definitively set out and that a subject matter expert is often considered as intended, the rules specifically leave room for fine tuning the process to the need. Rule 4.4 (A) states that the “parties may fashion the procedure by agreement prior to the mini trials they deem appropriate.”
Mini-trials are obviously not appropriate for all civil matters and, while no specific or definitive criteria and factors are provided for in the rules, it is submitted that experienced trial judges and counsel will know appropriate cases “when they see them.”
An obviously critical factor for a mini-trial is that the dispute involves parties that have clearly identifiable “ultimate decision makers.” Again, experienced players know them when they see them.
The critical feature of a mini-trial is that it ensures an important dynamic will be present: an exchange of positions in the presence of the decision makers.
Tracy Allen, a premier mediator, author and trainer and a co-author of the “Don’t Torch the Joint Session” article quoted above, wrote recently that she sees no change in the basic problems addressed in that article and has a more recent concern that recent AI developments could make matters worse.
She writes:
“I remain concerned that mediations conducted without an opportunity of exchanging party positions will continue to degrade the process. I also now fear AI could make matters worse. Parties and attorneys could now just ask ChatGPT what to offer, how to respond and mediators will be in their own breakout rooms asking ChatGPT for advice on what to do to get movement from the parties. A mini-trial necessarily circumvents many of these concerns as it would require preparation, presence, participation, exchange of information, etc. A mini trial may present a better dress rehearsal than we have always thought mediation offered.”
Given informed and experienced judges, lawyers and mediators, it is submitted that referrals of select disputes to mini-trials can address current mediation process challenges.•
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John R. Van Winkle, of Van Winkle Baten Dispute Resolution, was a participant in the founding and was the second chair of the American Bar Association’s Section of Dispute Resolution. Opinions expressed are those of the author.
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