Our world has been turned upside down.
Streets and freeways are empty. Businesses are shuttered; parks are closed. A staggering number of hospitality workers are unemployed. As our front-line workers, medical professionals, grocery store clerks, and delivery drivers face a constant threat of exposure to Covid-19. Extroverts are sheltering in place without social interaction; introverts are sheltering in place with more social interaction with partners and kids than they ever expected.
Staying Connected
Video-conferences – for work, for wellness checks, for virtual happy hours, for virtual holiday gatherings with distant family – have taken over our lives. This can be a strain on both mind and body, as the difference between work meetings and social “gatherings” is sometimes imperceptible. Ironically, however, it has also created opportunities for greater connection.
Virtual Dispute Resolution
Last month, I wrote about the use of Zoom in mediation generally. And while video-conferencing technology has been used by mediators for many years – and indeed Zoom was specifically built with mediation in mind – suddenly everybody is using it, for everything from team meetings to virtual happy hours and holiday gatherings.
As a result, the technology platform has come under enormous scrutiny. We see daily news reports of various security issues (“Zoom-bombing”, the lack of end-to-end encryption, selling user data), while the platform’s daily active users ballooned from 10 million to 200 million seemingly overnight.
Is it Safe?
So instead of simply talking about whether Zoom is useful or convenient, the conversation – especially among lawyers, mediators, and arbitrators – must necessarily shift to whether it is safe. Does it adequately protect client confidentiality? Can uninvited third parties gain access to a mediation session? Does Zoom sell user information? What about encryption?
There are many things you can and should do to protect your meetings. And there are a number of excellent (and secure if used correctly) built-in mediation tools.
In-Meeting Security Settings
  1. Use a paid account
    Free accounts for any technology may be convenient, but they come with both limited functionality and limited security. This is as true for cloud storage solutions such as Dropbox as it is for video-conferencing technology such as Zoom.
  2. Password protect your meetings
    Make sure you create passwords for all your meetings to discourage uninvited guests. The password will be embedded in your meeting link for one-click access, but will be required for phone attendees or anyone who attempts to log in using the meeting ID.
  3. Enable your virtual waiting room
    Zoom has now enabled the virtual waiting room by default. While you may want to turn it off for social gatherings, so that your friends can join the meeting before you, it is a good idea to place participants in a waiting room and admit them into the meeting once you know who they are.
  4. Lock your room once all participants are present
    As a meeting host, you have the ability to lock the virtual door to your meeting once all invited participants have arrived. For what I hope are obvious reasons, it is a good practice to do so. The caveat is that if someone is accidentally logged out, they will only be able to rejoin if you unlock the door, so you may want to make sure you have established some form of back channel communication protocol.
  5. Know how to remove participants
    Within the last few days, Zoom has created a security tool that allows the host to manage participants very easily. This includes the ability to remove a participant from a meeting. While you should not see uninvited guests in your meetings if you follow the recommendations above, this tool allows you to kick someone out if necessary.
  6. Disable recording functions
    Zoom provides recording options, in case you want to save all or a portion of your meeting. For mediators, best practice is to disable all recording options for everyone at the top level, in order to protect confidentiality. There may be exceptions to this; and for those cases, Zoom provides an opt-in feature to ensure that all participants agree to the recording.

Useful Features for Mediators

  1. Calendar integration
    Zoom can be integrated into a Google, Outlook, or other calendar, which is a helpful feature if you want it to appear on your daily schedule. It also allows you to invite attendees and track RSVPs, as well as sending a calendar invitation so that participants do not have to search their e-mail folders for meeting information.
  2. Breakout rooms
    Breakout rooms are probably the single most useful feature for mediators, lawyers, and their clients. Just as at an in-person mediation, it allows parties to engage in private conversations with their attorneys or their teams, or in confidential caucus with the mediator. (And contrary to some reports, it is impossible to listen in on a breakout room unless one is in that room.)
  3. Chat
    The chat function allows for both private messages to individuals and messages to an entire group. Here, technology may actually have a slight advantage over in-person meetings, as the mediator can “chat” with participants in one room while in a room with a different set of .
  4. Screen sharing
    Screen sharing is a powerful tool that allows all participants to view a single document. Attorneys may screen share exhibits in order to obtain a witness’ testimony about that exhibit in an arbitration hearing. A mediator may act as a scrivener on a CR 2(a) agreement while the attorneys provide contemporaneous verbal input on the language they wish to include.
  5. Whiteboarding 
    Like screen sharing, the whiteboard function allows all participants to view the same document at the same time. The difference is that a whiteboard is blank, and that all participants can annotate a single whiteboard, thereby allowing parties to collaborate in real time. 

ODR is Not New
Keep in mind that the origins of ODR can be traced back to the early 1990s and the beginnings of the internet. As a result, there are a number of organizations that provide excellent guidance on best practices and ethical considerations for online dispute resolution. Here are a few:

Due Diligence
A healthy mistrust of technology is wise, especially in light of the sudden upsurge in users and the resulting opportunities for bad actors to take advantage of the unwary.
Due diligence is absolutely critical when dealing with confidential information; and both attorneys and neutrals have an ethical duty of competence, which extends to the tools we use in our practice. We certainly should not jump on the ODR bandwagon merely because it is convenient. But we should also be careful not to reject it wholesale, thereby missing the possibilities it opens up.
While I for one wish that ODR had been embraced sooner and under far less tragic circumstances, I am delighted that it is now becoming an accepted option, which is likely to serve our clients well even after this pandemic has passed.
[Disclaimer: I am not endorsing any specific technology. There are numerous other platforms – such as Skype, WebEx, Microsoft Teams, Google Meet, Crek ODR, Legaler, and the very exciting new Modron Spaces – that provide video-conferencing capabilities, and which may be more or less secure, user-friendly, and/or appropriate to dispute resolution.]