I led a tutorial/discussion on the use of Zoom for my colleagues at the ADR Roundtable last Wednesday. In the interest of making the information widely available, I included a link to my PowerPoint slide deck - which includes links to Zoom Help Center articles, as well as links to various ODR organizations and other resources - in my April newsletter. I am also posting them here in case they are useful to any of my lawyer, mediator, and arbitrator colleagues.
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.
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
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:
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.]