The term “Artificial Intelligence” is hardly new.  It’s been around since the 1950s when it was used to describe a machine’s ability to execute a job that would formerly have required the application of human intelligence.  It remains a broad-ranging term which is applied these days to a machine or software used to perform tasks that normally require human intelligence, such as understanding language, recognising patterns, solving problems, and making decisions.

AI can be trained through various methods, including machine learning and deep learning, to improve performance over time. AI is a broader concept than Machine Learning, which is currently one of the main species of AI technology capturing the public’s attention. 

Machine Learning is a more restricted term which applies to the application of AI in machines that obtain data and learn from it. Machine Learning often operates by using statistical methods to make classifications and predictions. By contrast, a wider concept is used for AI – one that encompasses a variety of technologies, including Machine Learning, natural language processing (or NLP – technology that trains computers to understand what humans write or say), and facial recognition.[1]

I won’t get bogged down in trying to refine these definitions, not least because I’m simply not qualified to do so.  What we all know, however, is that these technologies are evolving at a rapid pace, in part due to the increased access to large datasets (often referred as Big Data). 

Machine learning has evolved significantly in recent years in its ability to recognise patterns in data sets. It is confidently predicted that AI is now poised to reach human level in the imminent future. 

While the application of this technology can be very useful, it may also be disruptive as well as worrying if used inappropriately or for purposes such as limiting the autonomy of people. Consider, for example, technology used in the Chinese province of Xinjiang – a region with a Muslim majority that uses a facial recognition system that allows the government to carry out mass surveillance of its citizens.

It’s the sort of technology that’s portrayed in science fiction films to put us in fear of a dystopian future.  It has us living in a world in which government computers monitor and evaluate the behaviour of individuals, businesses, and government entities, and assign scores based on financial reliability, legal compliance, and social conduct, and in which high scores can lead to benefits like easier access to loans, while low scores can result in penalties such as travel restrictions. 

What I’ve just described isn’t science fiction.  It is, in fact, an accurate description of the Chinese Social Credit Scheme which has been operating for the last 10 years.

A couple of months ago, Chief Justice Andrew Bell, on the occasion of the bicentenary of the NSW Supreme Court, gave an interview to the ABC in which he specifically identified emerging AI as one of the significant challenges which his Court will need to face in the future.  He said that high on the agenda of challenges is the increasing sophistication of generative AI — programs like ChatGPTwhich can produce content like text and imagery— and the complex issues it creates for the legal system.  He cited a recent case in the ACT in which the court had been presented with a character reference which appeared to have been written with help from ChatGPT, which resulted in the court giving the reference little weight. 

The Chief Justice went on to say that his concerns weren’t limited to the prospect of fraud or attempted fraud on the court through the use of AI, but extended to the need for the courts and practitioners to be cautious about so called “hallucinations” – the phenomenon which occurs when the program, which is designed to assist the user, simply invents an answer so as to provide the user with an outcome.  Again, we have all heard of the notorious examples where AI generated submissions have been given to a court containing imaginary case references.

The recent emergence of applications such as ChatGPT has rapidly come to be a popular representation of AI.  ChatGPT was said to be the fastest growing consumer application in internet history, acquiring 100 million users in the first month after its release in late 2022.  In February 2023, Columbian Judge Juan Manuel Padilla Garcia posed several legal questions to ChatGPT, and included the chatbot’s replies alongside his own ruling.

Following extensive online debate, Judge Garcia remarked that while ChatGPT and other technology programs should not be used to replace judges, they can improve the efficiency of judicial proceedings by aiding in document drafting and performing other secretarial tasks: “by asking questions to the application, we do not stop being judges, thinking beings”, he said. Ironically, when asked by journalists abouts its role in the judicial system, ChatGPT itself appeared more reluctant than Judge Garcia, responding, “Judges should not use ChatGPT when ruling on legal cases … It is not a substitute for the knowledge, expertise and judgment of a human judge”.[2]

In a display of the intellectually rigorous and intensive research for which I am renowned, I asked ChatGPT to describe simply the ways in which AI could be used in mediations.  In seconds, it gave me a remarkably concise and lucid response:

The integration of artificial intelligence (AI) in mediations represents a significant advancement in dispute resolution, offering both opportunities and challenges. AI’s role in mediations primarily revolves around enhancing efficiency and accuracy. For instance, AI-powered tools can analyze vast amounts of data from previous cases to identify patterns and predict outcomes, helping mediators craft more informed strategies. They can also facilitate the mediation process by managing schedules, sending reminders, and even offering real-time translation services, thereby bridging communication gaps.

Moreover, AI can support mediators in evaluating the dynamics of negotiations through sentiment analysis and behavioural cues, providing insights into the parties’ emotional states and potentially guiding interventions. This could lead to more nuanced and empathetic handling of disputes.

However, there are challenges and ethical considerations. The reliance on AI might undermine the human element crucial in mediation, such as empathy and understanding, which are essential for resolving conflicts. Additionally, concerns about data privacy and the potential for algorithmic biases must be addressed to ensure fair and equitable outcomes.

I couldn’t have put it better myself! 

Then I asked it how AI could be used in evaluative mediations.  Again, within seconds it gave me a very useful answer, which identified the valuable tools AI could bring to such a mediation, including data analysis, legal research, scenario modelling, sentiment and behaviour analysis, document review and management, risk assessment, and even bias detection.

It gave a similar answer when I asked a general question “How does a mediator use AI”, but interestingly its answer to that question included a couple of important caveats.  One was that mediators must ensure that AI tools comply with data privacy laws and that sensitive information is securely managed.  The other was to highlight what it described as The Human Element: “While AI can provide valuable insights and support, the human element remains crucial. Mediators should use AI as a tool to complement their expertise rather than replace human judgment and empathy.”

Then when I asked the machine what role ChatGPT has in the judicial system, it reeled off a list of predictable responses, such as case management, document review, and precedent research.  But the response also included a confidentiality caveat and went on to state: “Decision-Making: ChatGPT is not used for decision-making in judicial processes. Judicial decisions are complex and require human judgment, empathy, and understanding that AI cannot fully replicate.”

Doing the best I can to read the tealeaves, I think we have to accept that the use of AI to help mediate disputes will be a feature of our practices in the near future.  It is not commonplace yet, but I certainly can see the time soon when it features regularly as a tool to which we have regular resort – just as we now unthinkingly look at our smartphones to do everything from checking our diaries to checking our bank balances.

Currently, the biggest risk of using AI in mediation is the possibility that it will introduce errors into the process, such as the so-called hallucinations.  And even ChatGPT itself seems to concede that when unchecked by human mediators, AI mediation risks running afoul of laws and ethical standards.

Generative AI is also ill-equipped to help parties cope with the strong emotions that often come up during mediation. One of our core skills as mediators is to manage emotions such as anger, frustration, and fear – which may be fuelling the conflict – and even assist the parties to channel those emotions in constructive ways to enable resolution of a dispute.

That being said, AI applications do provide us with valuable tools, such as in disputes involving large volumes of data, which AI can quickly sift through and analyse. 

Another example of a useful tool is that concerns about ensuring that non-English speaking participants are actively involved and understand what’s happening can be overcome by pulling out your smartphone and opening a simultaneous translator like Google Translate. 

AI chatbots can even be used to assist the mediator formulate the process of negotiation. For example, generative AI tools can pose questions aimed at identifying parties’ underlying interests, propose offers, and predict the likelihood that such offers will be accepted. You, as the human mediator, might opt to compare your own lists of questions to those generated by AI technology to make sure you haven’t missed anything.

Finally, just in case you’re wondering whether the future really is here, only a few weeks ago the Harvard Law School Program on Negotiation newsletter carried a report about the use of the ChatGPT chatbot in a mediation.[3]  It recounted a recent episode in which an experienced mediator was mediating a dispute over the wrongful termination of a lease.  The landlord was seeking $550,000 from the guarantor, who refused to pay more than $120,000.

With the parties at an impasse, the mediator asked ChatGPT for advice on what number to propose to the parties. The chatbot recommended $275,000. The mediator thought this was more than the guarantor would be willing to pay. Still, he asked the parties’ lawyers if their clients would agree to accept ChatGPT’s number—which would remain unknown to them—in the event of impasse. The parties agreed.

The prospect of abiding by ChatGPT’s advice motivated the parties to resume their settlement negotiations. Ultimately, the guarantor offered $270,000 – just $5,000 less than ChatGPT’s recommendation – and the landlord accepted. The two sides signed their settlement agreement, then asked what ChatGPT had recommended. After hearing the number, both sides remained satisfied with their negotiated deal.

Welcome to the new world of mediator’s bids!

[1] See generally Professor Pablo Cortes “Artificial Intelligence in Dispute Resolution”, CTLR, 2024, 30(5)

[2] R. Abbott & B. Elliott, “Putting the Artificial Intelligence in Alternative Dispute Resolution”, Amicus Curiae, 2023, 4(3),

[3] www.pon.harvard.edu/daily/mediation/ai-mediation-using-ai-to-help-mediate-disputes/

In a speech delivered by the Honourable Chief Justice, His Honour welcomed the Speaker of the Legislative Assembly who returned a portrait of the Hon. TJ Byrnes to the Court after what was described as a “serendipitous saga”. His Honour also spoke of the prospect of a new Courthouse for the Supreme and District Courts, the re-hanging of Sir Harry Gibbs’ GCMG banner and the Society of Notaries. To download a copy of the speech made by the Honourable Chief Justice, CLICK HERE.

The Association was represented at the ceremony by the President, whose speech is reproduced below.

“The Bar has significant interest in each of the four topics specifically mentioned by Your Honour the Chief Justice this morning. Standing here, as we do, in regalia which itself preserves hundreds of years of history, we are very pleased to see the presentation by the Society of Notaries of their historical records for safe keeping by the Supreme Court Library. It is not merely a gesture — it is a public sign of the depth and strength of the confidence in, and affection for, this Court which is shared by the profession in this State.

We also respectfully associate ourselves with Your Honour’s observations about the prospect of a new Court House for Brisbane. We can speak with some authority on the subject, given that this is our professional home. This building has served us well, but its time has well and truly come and gone. The Courts of our State deserve better; and so do the people of Queensland.

The other two matters have, of course, a personal connection for the Bar. Thomas Joseph Byrnes, who was born in Spring Hill in 1860, read for the Bar with Mr Patrick Real (later a judge of this Court for nearly 20 years). It is said that Byrnes was quickly successful as a barrister, and within a few years was making a large income (we are speaking of barristers a long time ago!).

After only five years at the Bar, he was appointed Solicitor-General by Sir Samuel Griffith. Only a few years later, he stood for the Legislative Assembly, was elected, and was appointed Attorney-General. He died of pneumonia at the age of 38 — a life of so much achievement, and so much expectation, cut tragically short.

Sir Harry Gibbs, known to many in this courtroom, was a modern-day icon for the Queensland Bar. A past president and life member of the Bar Association of Queensland, Sir Harry held the highest judicial office in the land, and served the country with great distinction. We are honoured to witness the re-hanging here of his GCMG banner.

But back to the present. 2006 has been a busy year for the Bar Association, which now has more than 1,100 members, more than 850 of whom are in private practice. Much of the Association’s work these days is directed towards its functions as a regulatory body under the Legal Profession Act, and to the provision of important member services, such as a comprehensive Continuing Professional Development program. Yet we remain, as we have always been, an independent body of independent professionals.

We are most fortunate to enjoy a strong collegiate professional relationship with our new Attorney-General, the Hon Kerry Shine, as we did with his predecessor, the Hon Linda Lavarch, and we wish him well in his pivotal leadership role in the administration of justice in this State. It is more than a little regrettable that the occasional disagreements which will inevitably occur under our democratic system, and which I might also add are handled with utmost professional courtesy, tend to receive more airplay than the vast bulk of the good work between us, which is done with tremendous good faith and cooperation.

Only in the last week, for example, I have, on behalf of the Bar Association, subscribed to the Fremantle Declaration, to which the Attorney-General was a signatory, affirming our support for fundamental rights of accused persons on the fifth anniversary of the detention of David Hicks. I also acknowledge with gratitude the co-operation of all officers of the Department, led by example, as they have been, by Ms Rachel Hunter and now Mr Jim McGowan.

Barristers and solicitors work hand in glove every day in these Courts for the benefit of the people in Queensland. I am pleased to report that relations between the Bar Association and the Queensland Law Society are at an all time high, resulting in high levels of co-operation on matters affecting the profession and the administration of justice generally. Again, that is due in no small part to the positive and co-operative leadership of my friend Mr Pinder, and his recent predecessors Mr Davis and Mr Ferguson, who continues to serve on the Executive of the Law Council of Australia.

Finally, we acknowledge with gratitude the respect which the Courts of this State have shown us over the last twelve months. We serve the Courts willingly, and appreciate the interest and concern which the judges collectively and individually have for us. Just one example of the way in which the Courts and the profession have collaborated over the last twelve months is the promulgation by each of the Courts of Practice Directions concerning direct access briefs. Regulation of this relatively recent phenomenon, whilst covered by the Bar Rules, needed some positive reinforcement with the authority of the Courts, and each of the Courts responded by working with us to formulate appropriate Practice Directions – all of which, of course, is ultimately for the benefit of those who come to the Courts utilizing the services of counsel to seek justice.

It remains only for us to extend to the judges and staff of this Court, and all the Courts and tribunals before which we have the honour to appear, our sincere best wishes for this Christmas season and for the year which lies ahead.”

Martin Daubney S.C . President , Bar Association of Queensland

“Even a cursory perusal of Your Honour’s curriculum vitae reveals the depth of legal acumen and breadth of experience which so eminently equip you for the important office you have assumed today.

The Honourable the Attorney-General has already mentioned most of the defining events which have marked Your Honour’s professional career to date, from your time working in the Public Defender’s Office through your career at the private Bar, and I won’t go over them again at length. But a couple of matters are worthy of a little emphasis.

When Your Honour took silk in 2003, you were already widely regarded as one of the pre-eminent criminal appellate counsel n this State. You had appeared in a large number of significant appeals in the Court of Appeal and in the High Court, including Robinson’s Case1 , Gilbert’s Case2 Doggett’s Case3 , Harwood’s Case4 , and Murray’s Case5. Your abilities were widely known through the profession, your services highly valued by your clients, and your skills as an advocate highly respected by the Courts. Your Honour mastered the detail of every brief, marshalled the relevant law, and knew how to present them most persuasively and effectively. Perhaps most importantly for your status as a barrister, the Courts had implicit trust in you as an advocate. In the course of argument in Doggett’s Case in the High Court, McHugh J. observed of you:

Mr Rafter, you are living proof that candour is not only an obligation but it is a weapon.

That would have to be one of the greatest compliments a barrister could receive.

Your Honour’s flourishing career in your chosen fields of criminal and disciplinary work after taking silk was, however, rudely interrupted from November 2004 to June 2005, when Your Honour was engaged in the vital service of restoring public confidence in the thoroughbred racing industry in this State. Those present will forgive me the indulgence of observing that it is a matter of great personal pride for me to have been associated with you in that endeavour. The significant benefit of Your Honour’s appointment to that Inquiry, of course, was that it meant someone on the team actually knew something about horse racing. Apart from your family, who indisputably hold the position of pre-eminence in Your Honour’s life, your extra-curricular activities over the years have in large part been devoted to matters equine, not always with great fiscal success but always with great enthusiasm.

However, in the course of the Racing Inquiry, I did uncover a little known fact about Your Honour, namely that you are bilingual. In the early stages of the Inquiry, we received evidence in closed session from a large number of racing identities. The evidence, of course, remains confidential, but there is an aspect of those hearings which I can safely reveal. We were visited by a succession of gentlemen, dressed almost uniformly in pork pie hats, loud check sports coats, and with cigarettes glued to their bottom lips. When they opened their mouths to speak, it appeared to me at least as if they were suffering some form of glossolalia — the words from their lips sounded like English, but no language that I had ever heard before. I felt as if I had been dropped into the middle of a Damon Runyon story. What disturbed me greatly was the fact that, not only could Your Honour understand them, you could converse freely with them in their native tongue!

The other things I learned about you during the course of the Inquiry are things your family and friends already knew — that your modesty hides a razor sharp eye and memory for detail, that you are constitutionally incapable of discourtesy, that you are loyal and have an unerring sense of fairness, that you are never too busy to have a chat and a laugh, that you are a man of dignity, and honesty and integrity. Were one to compile a catalogue of personal attributes for judicial office, this list would be a good place to start.

Your Honour has given freely of your time to the profession over the years, including by having served as a director of Barristers Services. It is only regrettable that your appointment cuts short your tenure on the Board of Legal Aid Queensland and as Chair of the Nursing Tribunal.

We have already mentioned Your Honour’s family. Your wife Fiona, herself a senior and highly respected solicitor, your sons William, Harold and George, and your parents can be justifiably proud of you, and we would presume to associate ourselves with that sentiment.

I have the privilege, on behalf of the Bar, to extend our warmest congratulations to Your Honour on your appointment to this Court. It goes without saying that you, like every other judicial officer in this State will enjoy the support and confidence of the Bar in the discharge of your duties of office.”

Martin Daubney SC President Bar Association of Queensland

1 Robinson v The Queen (1999) 197 CLR 162  2 Gilbert v The Queen (2000) 201 CLR 414 3 Doggett v The Queen (2001) 208 CLR 343 4 Harwood v The Queen (2002) 188 ALR 296 5 Murray v The Queen (2002) 211 CLR 193

I make no apologies for that. As I said at the Exchange of Christmas Greetings on 13 December, despite the growth in our numbers and the shifting of the Association’s role to a regulatory body, we remain an independent body of independent professionals. One of the prime hallmarks of our profession is its intensely collegiate nature. That unity of purpose manifests itself in our common dealings with one another as colleagues in the law, in the common respect we have for the Courts, in our common dedication to serving our clients’ interests according to the highest professional and ethical standards we can achieve, and in our common resolve as an Association to preserve and maintain the administration of justice.

Our independence means that, when required, we can and should speak as a body collegiate on issues of public importance.

One example of that is the Fremantle Declaration, to which I subscribed with the support of the Bar Council. In another declaration, made in another time in another place, a group of people subscribed to a list of truths which they held “to be self evident”.

One can only wonder why the truths set out in the Fremantle Declaration are not similarly regarded by some as “self-evident”.

You will also have seen the letter I wrote on our behalf to the Fiji Law Society. It seems to me unarguable that we have a collegiate responsibility to support our colleagues in that country, with which we have such close professional connections, as they stand against the incursion against democracy.

Many of us will now enjoy a well-deserved break with our families and friends. Others might only have a few days off before returning to keep our wheels of justice turning.

However you spend your time over the weeks ahead, please accept my sincere best wishes for the Christmas Season and my thanks for your support of the Bar Council this year. I look forward to an active, successful and collegiate 2007 for the Bar Association.

Martin Daubney S.C. President, Bar Association of Queensland