Our society’s and the world’s reaction to the NSA’s massive data collection efforts and the ongoing evolution of the privacy vs. security debate have rather profound implications for the future of mediation. I call a new concept of how we adjust our digital communications given our perception of the possible unintended exposure of those communications “digital accountability.” The good news is that it may not all be bad.
Legal Mediation Confidentiality – A Very Limited Concept
I know that some are great fans of the traditional (evidence code based) concept of “mediation confidentiality.” I personally find it to be a rather narrow concept that is irrelevant to over 99% of mediation participants. This legal concept basically says that, should you find yourself in a due process hearing (court or administrative hearing that uses the evidence code), nothing you say or do in mediation will be held against you in court. The public policy is to support candor in mediation settlement discussions. The Uniform Mediation Act (UMA) also figured out a way to create approximately a dozen exceptions to this generally accepted concept of legal mediation confidentiality.
Informal Mediation Confidentiality – Voluntary Self-Imposed Limits on Communications
So, what percentage of cases that are mediated find their way back into a due process hearing where one party wants to introduce evidence from a mediation? Answer: not many. Compare this rarely utilized concept of legal mediation confidentiality with a more vernacular understanding of each mediation participant’s interest in “privacy” and possible “anti-blabbing” understandings. Here I find that nearly every mediation participant is interested in understanding and often agreeing on who participants will talk to about the dispute outside of the mediation, even if these understandings are not "legally binding."
In a divorce mediation, for example, parties may agree to not bring grandparents or siblings into the mix. In a workplace mediation, there might be a valuable understanding to not further share with co-workers. In a commercial mediation, there might be an agreement to say nothing to common customers.
I have long found that these upfront discussions of whether either side would like to propose any voluntary limits on communications with outside others to hold substantial value for participants. No-one likes to be humiliated, embarrassed or be talked about behind one’s back. Once such informal commitments are made and privacy expectations are confirmed (about known "threats"), these informal privacy agreements are generally abided by with everyone knowing there will be consequences if agreed-upon privacy expectations are violated.
Mediation Discussion Security
The “security” of mediation discussions is another related concept. Here we are not talking about a rule of evidence like legal mediation confidentiality, nor an explicit understanding about limiting outside communications with others. Rather, with “mediation security,” we are talking about our ability to keep others that we do not even know about (all others) out of “the mediation room.” In the old days, this might mean a lock on the building and extra sound-proofing in the walls. Today, with recent revelations from the NSA, it may well be locks and walls are the least of our worries.
Mediation Communications Have Gone Digital
We are all now online mediators. We email and attach and use track changes, and we text and have web sites and blogs, and we “skype” and do conference calls, etc., etc., etc. Mediation is now more a choreography of communication, both digital and face to face, than a discrete physical event. And now it is more confusing than ever to ask “exactly how confidential are our mediation communications really? Between the many exceptions to mediation confidentiality in the Uniform Mediation Act and the NSA now seemingly sifting through nearly all of our online and phone communications, we should be asking what are the implications of all of this for mediation generally and particularly for the growth of online dispute resolution (ODR)?
Just how effective will online mediation be if we cannot provide our participants with confidence that their communications are private and confidential?
And, if we keep all such communications truly private and confidential, and “secure,” how does the government know that we are not planning a terrorist plot or running a child sex ring?
The Confusing Concept of “Digital Accountability.” You weren’t paranoid after all!
Now for the most confusing concept of all, “Digital Accountability.” For starters, this is not an “objective” concept, but a “subjective” one. It has to do not with the factual reality of risks to our confidentiality, privacy and security, but, rather each individuals evolving calculation of just how “discoverable” their communications are. I offer that one’s interpretation of this possible exposure (valid or not) meaningfully impacts the mediation discussions that do or do not take place.
For example, if I believe that I am making truly anonymous comments online, I may be “liberated” to say bold and honest things that I would never say if I thought I could be identified. As another example, I am guessing that we have all fashioned emails that we do not intend for others, but that we know have a possible chance of falling into the hands of unintended others and this risk, small though it may be, impacts what we say in our communications. Many of us have learned to “email defensively,” being ever wary that what we write is “permanent” and may make its way to unintended recipients at the worst possible time.
Intriguingly, I am not sure that all of this is bad. In fact, in the dispute resolution context, the perceived chance, even if it is small, that I may be held to account for my communications to unintended others puts, I believe, people on “better,” rather than “worse,” behavior. I am not defending this “digital accountability,” but simply stating what I believe to be true.
What About the Future?
So, what does this mean for the future of online mediation? For starters, we can count on the Canadians to lift their noses with an air of superiority as they mutter, “We told you so . . . We would never have something like the Patriot Act and NSA to jeopardize our privacy up here!” Of course, it seems that the NSA’s efforts are even bolder with regard to international communications, including those to and from Canada! Plus, did anyone notice that there was not a single Canadian NHL team in the semi-finals or finals of the Stanley Cup Playoffs this year? It thus seems that the Canadians have seemingly bigger issues to now consider with their hockey teams than Internet privacy and security issues.
What about the rest of us, and globally? What are the mediation profession's our expectations about online privacy and security? Will anyone believe a single word we say about these issues in light of the NSA’s actions (with the support of the President, Congress and the Courts?) Even if "they" say that they will “stop,” will we believe them? Could we ever really know?
Perhaps the best answer is to demand full disclosure and democratic decision-making about all of this and, if the intended purpose is protection from terrorism, then maybe we can agree that no collected private information can be used by any governmental entity for any purpose other than terrorism protection.
Even with improved democratic and transparent resolution to these challenging privacy vs. security issues, one has a sense that the world of online dispute resolution has been changed forever. What will participants now think when we say that our dispute resolution process is “confidential” and “private” and “secure?” What should we say? That we will do our best, but that we have no idea about how effective that will be? Does the fact that someone is watching, or may be watching, or that private information may be discoverable, change the way people behave? For the better or for the worse?
Perhaps it is best for us all to just imagine that god is watching over us, and to thank her and our lucky stars that our earlier years are not also fully recorded.