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<xTITLE>Addressing Ethical Issues in Online Mediations</xTITLE>

Addressing Ethical Issues in Online Mediations

by Phyllis Pollack
June 2020 Phyllis  Pollack

Recently, I posted a blog about some of the ethical issues that might arise in mediating online using a video conferencing service. While I raised several issues, I did not address how to respond to the issues.

The myriad of scholars in the Online Dispute Resolution Field have done so. They have developed Video Mediation Guidelines which can be found on the website of the International Council for Online Dispute Resolution (“ICODR”). Although few, the guidelines cover the critical ethical issues; Accessible, Competent, Confidential, Fair/Impartial/Neutral/ and Secure.

Accessible: Implicating the notion of self-determination, this guideline states the obvious; make sure that everyone wants to use the technology for the mediation and that each party does have sufficient internet or other connection to allow for such use. As important, use a platform that is easy to use and send a reminder ahead of time with the log in information. (I noticed that a lot of the webinars I have taken over last few weeks sent lots of reminders with the log in information making it easy for me to attend!)

Competent: Following up on the Standard of Competency in the Model Standards of Conduct for Mediators, this guideline provides that the mediator should be proficient in the technology to be used in the mediation and should offer to have practice sessions with the parties beforehand so that they, too, can be comfortable with the technology prior to the mediation. The guideline also reminds the mediator to be aware of the ethics involved in the use of such technology and to address the ethical issues in written materials or at least in the “ground rules.”

Confidential: Perhaps the most important aspect of a mediation is that it is confidential. This confidentiality must be guaranteed in any mediation using technology. Thus, the guideline advises the mediator to let the parties know that the mediation will not be recorded in any manner, and to get a written commitment from the parties that they, too, will not record the session in any manner. The guideline suggests taking precautions when sharing documents by using “screen sharing” rather than e mailing it and finally, to “lock the room” once the mediation has started so that “zoom-bombing” cannot occur.

Fair/Impartial/Neutral: Standard II of the Model Standards advise that mediators must be impartial: showing no favoritism, bias or prejudice to any one party. The guideline applies this to the video and audio aspects of a mediation; make sure that all parties always have a video and audio connection during the mediation. If a party’s video or audio connection is interrupted, the mediator should wait until the party is reconnected and then repeat whatever was said during that party’s disconnection. As important, the parties should have a Plan B- a telephone or other technology available just in case!

Secure: Without doubt the security of the connection raises the most concern and thus is most important. It raises the implication of confidentiality. Thus, the guideline suggests the obvious: the mediator should use a platform with encryption, making sure that any “location sharing” software is turned off. Further, use a platform that does not limit the session time (For example, the “free” Zoom limits its sessions to 40 minutes when there are more than two parties.). Finally, the guideline suggests that all the parties appear in a gallery view rather than “speaker only” in any such video conference.
While there are probably additional ways to address the myriad of ethical issues raised by mediating online, the ICODR guidelines provide a good place to start.

…Just something to think about.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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