Al in Construction Dispute Resolution

Al in Construction Dispute Resolution Presented by: Professor Gerber Date: January 28, 2023 Can Al Make Better Decisions? - All human decisions are susceptible to prejudice and all judicial systems suffer from unconscious bias, despite the best of intentions. - Algorithms can ignore factors that do not legally bear on a particular case, e.g. gender and race. - Al could remove these factors from consideration. - Al learns and mimics the biases of their programmers, and the data they are programmed with. - So, if historically police have arrested more black men, and you input that data, Al is going to come up with predictions that it is more likely that an offender is black. - So Al decisions can remove the subjective biases of a judge, BUT they replace them with subjective biases of the programmer (and history). - Al is only as good as the data that is inputted into the machine. - It learns from precedents & makes determinations about probable outcomes based on precedents. It is in effect trained to think and act like past judges. - Such a process allows no room for common law to evolve, and construction law is always evolving. - Al is reliant on machine learning and "sophisticated statistical algorithms", not directly reflecting the real world, but rather digesting binary data. - For Al to be useful, the problem must be defined in such a way to be amenable to a machine learning approach. It must be binary and simplistic in nature. - Conclusion - construction disputes are rarely "simplistic" and are not amenable to being decided by Al. Al Can Embed Discriminatory Practices - "Feed-Forward Loop" - Poorest accuracy in facial recognition was consistently found in subjects who are female, Black, and 18-30 years old. Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 - High Court held: • Contractor NOT entitled to sue for quantum meruit where it had an accrued contractual right to be paid for work preformed prior to termination; and • Where no right to payment had accrued under the contract, contractor could recover on a quantum meruit basis, BUT the contract sum acted as a cap/ceiling on the amount recoverable. - Based on precedents, Al would have reached the opposite decision! Can Al Replace Judges In Deciding Construction Disputes? - Short answer is "No"! - Reasons: • 1. Infinite variety of differential facts; • 2. Lack of reasons • 3. Violation of human rights Infinite Variety Of Differential Facts - Al requires binary code, black and white input data, to produce absolute outputs. Yet, real world situations involve uncertainty and ambiguity. - Al can't replicate the knowledge that humans acquire through long-term engagement and active perception of the real physical world. - It is not yet possible to reduce a complex construction dispute into a digital calculation that culminates in a code that generates binary yes or no options. Lack of Reasons - Al cannot provide reasoning and justification for decisions. Verifiability is therefore not possible. - It is a fundamental cornerstone of our justice system that disputants are provided with express reasoning for why a court has made their decision. This is because a construction disputant who does not know why an unfavorable decision was made against them will feel like they have been treated unfairly and likely appeal the decision. - Al adjudication fails to provide reasoning for how it has come to its decision. Whilst Al experts can potentially comprehend why the Al decided the case in favors of one party, lay individuals will struggle to understand why the Al reached its decision. This is highly problematic and raises questions about whether Al adjudication affords disputants due process rights. Weymont & Anor v Place [2015] EWCA Civ 289 - Parties are "entitled to have explained to them how the judge has determined their substantive rights and, for that purpose, the judge is required to produce a fully reasoned judgment which does so. - An important aspect of this process is the production of a properly parties reasoned judgment which explains to the parties and to any wider readership why the judge has reached the decision he has made. - This includes making a reference to the issues in the case, the legal principles or test which have to be applied and to why, in cases of conflicting factual evidence, the judge came to accept the evidence of particular witnesses in preference to that of others" Violates Human Rights? - Article 14(1) of the ICCPR provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." - Michael Kirby, 'The Future of Courts - Do They Have One?' (Conference Paper, Judicial Conference of Australia Third Annual Colloquium, 2020). • Justice Kirby has raised questions about whether Al adjudication conforms with the requirements that disputes in the court system be openly and publicly adjudicated. - There is no computer (and none is on the drawing boards) which can be programmed with the will to do justice. - A judge's role is not simply to deliver an outcome. It is to deliver a just outcome. - Al is efficient but it cannot guarantee justice. - It cannot deliver a "public" hearing. What Does This Mean For Al Being Used To Decide Construction Disputes? - The demand for accuracy in Al decision making is higher than the accuracy required of human judges. - This is, in part, because the algorithmic "black boxes" make the cost of detecting and correcting artificial intelligence errors extremely high. - We abolished the death penalty because the cost of erroneous decisions was too high... Final Thoughts - Al cannot understand legal problems in the 'real world' context. As a result it may fail to recognize patterns or similarities or find patterns and similarities where there are differences. - Al made decisions can lead to diminished confidence in the outcome and reduced feelings of justice associated with the result. - Thus, Al, may provide efficiency, but ultimately it cannot guarantee justice, or provide the parties with a feeling that justice has been served.