Online mediation was thrust into the limelight when the pandemic hit in February last year and the world experienced periods of prolonged lockdowns. Online mediation has been empowered by the rapid development of video-conferencing technology as it enables parties to be brought together face to face while transcending borders and distance.
But with its increasing use comes a need to ensure a watertight approach to security and privacy issues. In the following, I’ll share some practical insights to consider if you’re moving your mediation online.
Security challenges in digitising mediation
When the pandemic prompted mediators to explore alternative ways to conduct meditations, many explored virtual platforms so they could continue serving clients regardless of the COVID-19 restrictions of the day. Mediators also explored innovative ways to manage, centralise data and manage their caseloads.
When I started mediating online in 2009, security and data considerations were not as prevalent as they are today. Today, users are increasingly aware of their data rights and there has been significant privacy legislation introduced such as GDPR. Such issues were certainly not front and centre in the minds of disputing parties or the mediator. There were no questions about where video conferencing platform providers were storing their data, and in which jurisdiction if it was stored outside of Australia. Today with the increasing concerns about data protection and cyber security the position is quite different.
After identifying a gap in the market for dispute resolution mediators, RDO entered into a collaboration with Thomson Reuters to offer Online Dispute Resolution (ODR) as a service to mediators within Australia and New Zealand. Platforms like ODR enable the mediator to invite parties into a closed and secure eco-system designed especially for the dispute resolution process.
While video conferencing tools are beneficial for meeting clients if conducted by a reputable provider, when it comes to dispute resolution different concerns apply.
While there are additional features a specialist dispute resolution platform can offer, there are perhaps more serious considerations in the way that confidential information and data could be compromised.
Getting your platform right
Emails are widely used to communicate throughout the dispute resolution process, from settlement negotiations to evidence sharing. This can be problematic for several reasons:
- First, many emails do not generally encrypt data sent or received.
- Second, such emails and any attachments will generally hit many gateways and servers before they end up in the recipient’s inbox. There is no way of knowing where those gateways are or how long copies are such data are stored.
- Third, there are no checks or restrictions as to how that information might be forwarded. Indeed, it is not uncommon for a disputing party, representative or mediator to forward something to the wrong individual or auto select the wrong email address.
Video platforms are often only supportive of live mediation sessions. This means there is no ability to adopt asynchronous dispute resolution methods, in other words outside the live mediation, giving time for reflective analysis as well as providing convenience and flexibility. An Asychronous communication feature also provides parties with flexibility to manage and participate in dispute resolution procedures around the needs of business owners or other daily commitments. Moreover, general video platforms do not support the ability to keep an audit trail of messages, communications, files and case milestones.
Many of the general video platforms used today are not closed ecosystems and this can lead to video link hijacking or more recently known as ‘Zoom bombing’. This practice sees uninvited guests turning up in a Zoom meeting, in some cases bombing it with inappropriate images. It can particularly occur where the Zoom link has been shared in a public forum.
Such general video platforms do not have encryption built in as standard (if at all) and applying the wrong settings can leave your sessions open to unauthorised entry by third parties.
Transparency and confidentiality would normally be seen as an oxymoron. However, being able to explain to disputing parties that case information is stored in a centralised secure location is advantageous. Frequently, mediators use a number of disparate tools which all have different user terms, levels of security and data sharing policies can be confusing or at worse compromise the mediator’s duty of confidentiality.
Take care in making ODR choices
As observed in this article, mediators should be mindful about the technology providers they choose to conduct their online mediation with unsecured email providers and other non-specialist platforms to share evidence and settlement information.
Mediators who are looking to centralise their case management, use technology to support an end-to end-online mediation process or as a hybrid should consider an ODR platform.