Artificial intelligence (“AI”) is a new and exciting phenomenon that has revolutionized our way of life, the practice of law, and the decision-making process in arbitration. The National Academy of Arbitrators (“NAA”) has issued an Advisory Opinion on the use of AI by Arbitrators[2] that examines five Arbitration Code Sections, as well as a prior Advisory Opinion, in arriving at the issuance of Advisory Opinion No. 28, which regulates an Arbitrator’s use of AI.
Specifically, the basis for NAA Advisory Opinion No. 28 includes: (a) Code Section 1.A.1-General Qualifications; (b) Code Section 1.C.1.a-Responsibilities to the Profession; (c) Code Section 2.C–Privacy of Arbitration; (d) Code Section 2.H—the Use of Assistants; (e) Code Section 2.K, application for fees and expenses; and (e) Advisory Opinion No.12, also addressing the use of assistants in the arbitration process. For our discussion, it is important to explain each of these Code Sections and the prior NAA Advisory Opinion in properly arriving at the Final NAA Guidance on AI.
Although not particularly specified in NAA Advisory Opinion No. 28, it is important to recognize that an Arbitrator must verify any information provided by the parties which has been produced through the use of AI. In addition, a more thoughtful approach would be for the Arbitrator to refrain from abdicating his or her ultimate decision-making authority or role, since the parties have previously agreed that the Arbitrator’s decision-making product and end result, be final and binding. This approach, somewhat at odds with NAA Advisory Opinion No. 28, would avoid a possible motion to vacate, claiming that the Arbitrator exceeded his or her powers by using AI to formulate his final decision-making process.[3]
Sections 1.A.1 and I.C.1 of the Code of Arbitration
Section 1.A.1, of the Code of Arbitration, entitled, “General Qualifications,” provides, in part, as follows:
1.A.1. Essential personal qualifications of an arbitrator include honesty, integrity, impartiality, and general competence in labor relations matters.
An Arbitrator must demonstrate an ability to exercise these personal qualities faithfully and with good judgment, both in procedural matters and in substantive decisions.
Section 1.C.1. of the Code of Arbitration, entitled, “Responsibilities to the Profession,” provides in part, as follows:
1.C.I. An Arbitrator must uphold the dignity and integrity of the office and endeavor to provide effective service to the parties.
To this end, an Arbitrator should keep current with principles, practices, and developments that are relevant to the Arbitrator’s Field of Practice.
Advisory Opinion No. 28 states that Arbitrators must be extremely careful in using AI services, given the level of false responses that have been discovered. Because Arbitrators must keep current with practices that are relevant to their field of practice, consistent with that responsibility, the Arbitrator must carefully check any output to confirm accuracy. Moreover, due to confidentiality requirements, an Arbitrator who uses AI tool is responsible for becoming sufficiently familiar with AI tools, to safeguard the confidentiality of the parties’ information.
Arbitration Code Section 2.B, Disclosure and Consent
Section 2.B of the Arbitration Code requires the disclosure of relationships that present real or perceived concerns about an Arbitrator’s impartiality. Arbitrators must disclose to the parties if they are using a Generative AI (“GAI”) Tool to assist in the substantive management of the case, such as summarizing transcripts or evidence. Disclosure[4] must be made as soon as the Arbitrator is aware that he/she is planning to use a GAI tool. However, disclosure is not necessary for proofreading, copy-editing, and grammar and spell-checking.
Arbitration Code 2.C.1, on Confidentiality, entitled “Privacy of Arbitration,” states:
- All significant aspects of an arbitration proceeding must be treated by the Arbitrator as confidential unless this requirement is waived by both parties or disclosure is required or permitted by law.
- It is a violation of professional responsibility for an Arbitrator to make public an award without the consent of the parties.
The problem with AI presently is that any document submitted to an AI platform might be used in other AI applications. Therefore, an Arbitrator should not submit “any significant aspect of an arbitration case record or related data or any underlying information about the parties for an analysis by an AI tool unless the Arbitrator is confident that the submission will not subject the material to potential disclosure to non-parties.
Section 2H.1. of the Arbitration Code Governs the Use of Assistants in the Arbitration Process.
- An Arbitrator must not delegate any decision-making functions to another person without the consent of the parties.
Since the use of AI is analogous to using a virtual assistant, all provisions of Section 2H of the Arbitration Code apply whenever an Arbitrator uses AI. An Arbitrator may use AI without the parties’ consent, only if the Arbitrator does not delegate any decision-making to the AI tool. Decision-making is defined as the use of AI or any other assistant in any step of the process, which assists the Arbitrator in formulating a draft or final decision. It is important to point out that the Arbitration Code 12 states: “It is essential to remember that decision-making starts with fact-finding. The parties rely on the Arbitrator to determine what the facts are (credibility) and which ones are important (weight). (The Arbitrator) should not delegate those functions without the parties’ knowledge.”[5]
Arbitration Code Section 2k.1 addresses billing for AI Expenses.
Arbitration Code 2k.1 reads in pertinent part as follows:
- An Arbitrator occupies a position of trust in respect to the parties and the administrative agencies. In charging for services and expenses, the Arbitrator must be governed by the same high standards of honor and integrity that apply to all other phases of arbitration work.
An Arbitrator must endeavor to keep total charges for services and expenses reasonable and consistent with the nature of the case or cases decided.
Prior to the appointment, the parties should be aware of or be able to readily determine all significant aspects of an Arbitrator’s bases for charges for fees and expenses.
Examples of the Use of AI That May Be Consistent with the Arbitration Code of Professional Responsibility.
- The Arbitrator’s use of electronic research tools is generally consistent with the Arbitration Code, such as identifying relevant case law, after careful review of any AI-generated outputs;
- Employing a GAI system to aid in the error correction of an Arbitration Award;
- After the review of the record by the Arbitrator, he or she may use a GAI tool, to identify any inconsistencies in the record, provided that the Arbitrator independently verifies any inconsistencies in the record.
Conclusion
Arbitrators must ensure the integrity of the arbitration process, through the issuance of notice, in the use of AI, as part of important procedural due process considerations. Upon appointment, the Arbitrator must disclose his or her use of AI in decision-making deliberations. GAI should be used as a tool in the arbitration process; and certainly, not as the last word in the decision-making process.
If in fact, AI becomes the actual decision-maker, the Arbitration Award may be subject to a motion to vacate upon the argument that the Arbitrator exceeded his or her powers, in abdicating the ultimate decision-making responsibility to AI. Although GAI is a useful tool, it should only be used as a virtual assistant; and not as the actual decision-maker in the arbitration process; since this expanded role may improperly supplant the essential role of the Arbitrator, as the parties’ agreed upon decision-maker.
[1] By Mark J. Berkowitz, Panel Member, Upchurch, Watson, White & Max Mediation and Arbitration, Adjunct Professor of Law, Alternative Dispute Resolution, St. Thomas University School of Law, A.B., Hamilton College, 1978, J.D., St. Louis University School of Law, 1981, L.LM., University of Pennsylvania Carey School of Law, 1982.
[2] See, NAA Advisory Opinion, No. 28, which was issued on March 28, 2026.
[3] Canon V of the Ethics Opinion of the American Arbitration Association mandates that (i) Arbitrators maintain complete control over decision-making through the use of AI tools; while maintaining procedural due process; and (ii) Arbitrators must understand the limitations of AI, to properly integrate its application into their practice.
[4] See, NAA Advisory Opinion No. 12.
[5] It is questionable whether the Arbitrator may delegate his or her central decision-making process to AI. Under collective bargaining agreements, by definition, the parties are bargaining for and agreeing to the discretionary decision-making authority of the Arbitrator. If the Arbitrator delegates this ultimate authority, his or her final determination may be subject to a successful motion to vacate the Arbitration Award.
