Thanks to “safer at home” orders, I, like many other mediators, have spent my time learning the intricacies of video conferencing and more specifically Zoom as it has become crystal clear that mediations by telephone or video conference will be the “new normal”. It will be many months if not years before we conduct “in person” mediations again.
Yet, as I do teach ADR ethics at USC law school, it struck me that there may be some additional ethical considerations involved in these online dispute mediations than those occurring with “in person” mediations.
The simplest of searches indicated that there are indeed additional considerations which have been highlighted by several well know scholars including Daniel Rainey. (http://danielrainey.us). Using the Model Standards of Conduct for Mediators( 2018 – Model Standards With Comments – 10-03-2018 ) as a guide, Mr. Rainey applies them to an online mediation. Some examples include Self-Determination, Competence, Quality of Process, and Confidentiality.
Standard I of the Model Standards addresses Self-Determination and among other things, states that “…. self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”
The first question that arises: do the parties even want to use video conferencing for their mediation? Or, what process do they want to use? Just as a mediator can not force a party to settle, neither should a mediator “force” a party to use a process (i.e. video conferencing) with which she is not comfortable. The parties’ consent to use this method should be free and informed. Realistically, just as the ADR (Alternative Dispute Resolution) community must quickly come up to speed on this technology, so must the disputing public; yet many of them have not and are hesitant to learn. Call it “fear of the unknown”.
Closely connected to this first standard is Standard IV entitled Competence. This standard provides that a mediator should mediate only when she has the necessary competence, qualifications, training and experience in mediation skills. No doubt when this standard was written, the notion of “training in mediation skills” did not include the adept use of information technology. Yet, it does today. Just as in an “in person” mediation, there will be caucuses or private meetings between the mediator and one side, so, now the mediator must be adept at using “breakout rooms” in Zoom or some similar technology to have those caucuses. The mediator must be adept at using this technology to satisfy this standard.
And likewise, the mediator must assure the Quality of Process (Standard VI, A.10) which includes making adjustments, modifications, and accommodations to a party who is not comfortable with using online dispute resolution technology or is in the throes of learning how to use it. Under this standard, the mediator must “make possible the party’s capacity to comprehend, participate and exercise self-determination.” (Id.). Again, no doubt when this standard was written, the authors did not have the ability to comfortably use information technology in mind.
Perhaps the standard that has gotten the most publicity is Confidentiality- Standard V. “The mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.” Much has been written about “zoom bombing” or the ability of a hacker to interrupt a Zoom meeting and post unwanted pictures and language in the middle of the meeting. It seems that Zoom has taken strides to tighten the security and has issued recommendations to its users on how to keep their meetings secure. Zoom has even added a “lock the meeting” button that when used, would keep all third persons out.
But, still, the disputants in a video conference mediation will worry. They have read the news and worry about the level of security. So, it is up to the mediator to be able to explain as simply as possible how secure the technology is and what are the risks of inadvertent disclosure. (Which gets us back to self- determination!)
And, although Zoom has improved the security settings, one still does not know who else may be in the room besides the disputant or otherwise listening in via a telephone connection etc. or whether the session is being secretly recorded by one of the parties. In an “in person” mediation, the mediator knows who else is in the room, who is on the telephone, and recording the session has not been an issue.
One can indeed do a “deep dive” on these ethical issues and indeed, many scholars have written extensively on the topic. My aim here is to provide some food for thought and raise the notion that there is a “new normal” to ADR ethics in this era of online dispute resolution.
… Just something to think about.
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