Confidentiality in Online Environments

Moderated by Eric Tang

 

We know that disputants often consider mediation over litigation because of the privacy and confidentiality factor. If a dispute is taken to court, the whole conflict is open to the public. Mediations, on the other hand, can be kept confidential and resolved without anyone other than the parties knowing the details. All notes and transcripts can be physically shredded and disputants can agree to non-disclosure. If the mediation is successful, everyone is happy and everyone wins.

However, when mediation is conducted online, it seems that perhaps some part of this value may be at stake, or at least is perceived to be at stake. Statements and documents are posted online, where things are permanent. It reminds me of a quote - "The internet is written in ink", and so, you better be careful of what you say online. Most internet users are keenly aware of this fact, despite the occasional regrettable posts on social network sites that some people mistakenly do.

Assuming an ODR service provider is using all the latest security, takes all necessary precautions and restricts access to a case; is privacy and confidentiality still considered the same as a face to face mediation? Is this a significant barrier for mediators and disputants to take their mediations online?

What about situations where a mediated dispute ends up going to court? State laws may vary on this, but what information can be used and recovered from an online mediation that wouldn't have existed in a face to face meeting? Can a mediator say without a doubt that all communications and documents will not be subpoenaed when all of these digital files are hosted on a server somewhere beyond their control?

 

Moderator Bio:

Eric Tang is the Senior Manager of Operations for Modria, joining the company in June 2012.  Prior to joining Modria, Eric spent 5 years with PayPal Merchant Services as an Enterprise Account Manager for several of PayPal’s top 100 businesses.  Eric also spent time as a Corporate Trainer for PayPal, sharing his knowledge of customer service.  Eric holds a BA from the University of Nebraska and a MS in Alternative Dispute Resolution and Negotiation from Creighton University.  Eric is also a part time mediator affiliated with the Nebraska Justice Center.

 

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Hello!  Thanks for taking the time to view this discussion.  I hope to get some responses from those familiar the issue of privacy in mediation, and perhaps weigh in on how privacy applies to the online world.  I think we assume that what works in an offline mediation will hold true for an online one, but can we be sure?

I guess I never really thought about privacy in online mediation.  As a matter of fact, I'm still new to ADR and I didn't even know that there were online mediations available! I find it very intriguing and I think that privacy is definitely something that needs to be looked at in greater detail when ADR is moved to the online world.  I'm not sure if anyone can ever really be sure that what they do online is completely private.  I know there are many steps to protect your computer from viruses and such things, but I just don't know if you can ever really be completely sure that it's protected. 

So for online mediations, even with the greatest attempt to keep it confidential, it just still seems like the privacy is lost a little bit when compared to an in-person mediation.  I think the greatest factor for me is the fact that the information can be stored in the server and can be retrieved easily.  But in an in-person mediation, the files are destroyed and can't be retrieved. 


Lucrece Bundy

I just spoke with Colin Rule and Bill Warters about confidentiality in the online mediation rooms. Many of these online mediation rooms need to be secured and encrypted. In fact, you can try a mediation room at acr.modria.com to try out for free. The rooms are highly secure and uses encrypted code to protect from hackers. In today's online world, confidentiality and privacy are high priorities.

Eric,

Great topic - thank you.

I see privacy more as a collaboration between the service provider and the participants.  I'm not sure that you can give an absolute guarantee anymore about privacy, I don't think anyone can.  And the clients know it. 

Our approach to privacy and confidentiality needs to be updated.

Both confidentiality and privacy can be high priorities, but I don't think they are absolutes in today's world. 

Krista Grace

 

Hi folks. One thought that came to me in relation to privacy is the phrase we often here regarding online shopping - that it can be "conducted in the privacy of your own home" - this is private in a different way perhaps, in relation to the kinds of personal data that gets "leaked" out when you meet face to face with someone and they can see your age, your disabilities (if obvious), your gender, your skin color, etc. So maybe this kind of privacy is another element to consider. 

Regarding the encrypted online work spaces, the obvious problem is that if someone else who has access as a party to the conflict to certain documents, even if they can't download them they can do a screen capture of the item or take a picture with their phone. So...this brings us to the issue of trust between the members of the dispute and whether or not the system or mediator has engendered and encouraged trustworthiness via their process work. 

Thoughts anyone?

When initially thinking about the topic of online mediation the issue of privacy was of my first concern. When talking to people in mediation I prioritize the importance that nothing they say will leave the mediation or be shared with the other person if they do not want it to. The fact that the entire conversation or dialogue becomes recorded when conducted on the internet could easily lead to a betrayal of trust. For every firewall or encryption there is a way to get around that and make something public. I may be overly cautious, but I feel that there is always a way to uncover something that is supposedly private. I'm sure that there is a way to protect the people who are taking part in this process, but I would be worried that there is possibility for abuse. It is still an exciting area for the field to be heading but every tie no technology is going to be implemented caution should be used.

At the risk of sounding like a broken record to the conversation already, I think that nothing beats an in-person mediation. Adding on to Shea's point, everything can somehow be leaked if a hacker really knew what s/he was doing or really wanted to find to exactly what happened during the mediation. Also, like Bill Wartars said, certain information is perceived different when you type it on a screen as opposed to seeing someone in-person. This trait of an in-person meeting is essentially invaluable to the mediator to help mediate the situation. I think that this gives a false sense of trust between a mediator and client if what they're doing is being typed and not spoken.

I agree with the general consensus of the group. I cannot think of any way that you could ensure confidentiality with an online mediation. The parties to the dispute probably do not trust each other and that in itself may be enough for one party or both to secretly record the mediation or memorialize the discussion in some other way.

Perhaps some things are simply better when done in person!

I was looking at a mediation website in the past year or two, and what annoyed me was the extensive promises of confidentiality.  It really turned me off, because I know there are so many problems with online communications remaining private.

If you are in a room discussing private matters, even a cell phone can apparently be used to transmit the discussion remotely to someone outside the room. 

When you are in a mediation, you are at one of the most vulnerable times of your life (if it is a serious mediation) and I think the approach to privacy has to be realistic, not fanciful.    

I'm not as ready as some others in this thread to assume that fully online mediation processes are flawed and unworkable due to lack of face-to-face contact or iron-clad ways to secure communications. I've had more than a few times in my life where people I already knew and lived or worked with and I got into a conflict. One of the greatest gifts of this field for me was the permission to ask for help from a mediator, often a colleague also in the field, to help me and my estranged colleagues sort things out. In these cases, I'm not sweating much over the confidentiality of the process (I want privacy and know that the mediators will do their best to provide it), instead what I want is help having a conversation with this other person or persons so that we can get back on track and move on with whatever our shared project or task is. Having someone who is not hooked into the conflict who can ask questions and direct the process really frees one up to work on speaking your mind and heart and listening to the other "side" as well. So - online spaces that provide that structure, that promote the telling of my story with minimal blaming and name calling and which help me listen and hear the concerns of the other can be really helpful, even without the face to face engagement, especially if we already know each other. So, let's not throw this baby (online mediation) out just yet  You never know, they may grow up to be quite helpful to me and you in the future.  :-)

I would agree with Bill in his 'don't throw the baby out with the bath water' analogy. If we as mediators approach the subject of confidentiality with realistic expectations and using technology to the best of our abilities, it is ultimately up to the parties to decide where to go with from there.

Due to the nature and culture of mediation I would suggest that most parties are there to find a  resolution to their dispute and are willing to abide by the rules they have agreed to, As for in-person being the 'best or only way', that may be true in some situations, but in many it is at least, inconvenient or in others, outright impossible. To those people, do we say- too bad, so sad, we can't do mediation just because we are worried about something that may or may not happen (breach of confidentiality)?  It wasn't that long ago that differences were settled with a gun fight in the street. Many then would have thought bringing disputing parties together to talk would never work. Times change. 

Krista brings up a good point about the ability to record in person. I think that risk would be even greater in an online mediation, especially if any party is allowed to use their personal computer. Programs like CamStudio can record your screen into a video and audio file, so the entire "confidential" mediation could be recorded with relative ease. Perhaps software can be developed, however, that can detect such recording software and disable it while the mediation is taking place.

Krista Grace Jessacher said:

I was looking at a mediation website in the past year or two, and what annoyed me was the extensive promises of confidentiality.  It really turned me off, because I know there are so many problems with online communications remaining private.

If you are in a room discussing private matters, even a cell phone can apparently be used to transmit the discussion remotely to someone outside the room. 

When you are in a mediation, you are at one of the most vulnerable times of your life (if it is a serious mediation) and I think the approach to privacy has to be realistic, not fanciful.    

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