Volume 11, Issue 1 - October 2012

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From Conference Rooms to Chat Rooms: The Need to Protect Confidentiality in Online Mediation

Christopher R. Meltzer

The current discussion of how to develop new forums for Online Dispute Resolution (ODR) and how to best implement such forums is gaining momentum as more services are moving online. This is even more the case as individuals are increasingly seeking to settle disputes online in order to avoid issues such as the physical distance between themselves and their opponents, the costs associated with traditional mediation, and the time required to be physically present with the opposing party. Currently, online mediation can be conducted through one of many different forums, most notably through chat rooms, video conferencing, e-mail, or special websites created solely for the purpose of online dispute resolution. Despite these new technologies, the success of mediation still relies on the principle of confidentiality, and without such confidentiality, parties engaged in the process may not feel as comfortable divulging information to the mediator that may be damaging to their reputation if subsequently disclosed to third parties outside of the mediation context. Thus, one interested in participating in online mediation should examine the safeguards set in place by the online mediation service provider prior to their participation in such a process.

In order to ensure that online mediation remains as effective as traditional mediation, laws and regulations that adequately protect and safeguard online mediation communications need to be developed. Current privacy policies, the Uniform Mediation Act, and state laws do not adequately address the potential consequences that may arise out of a breach of confidentiality by an online mediation service provider or a participant to an online mediation. Even if a current law adequately addresses confidentiality in the traditional mediation context, most do not provide for an adequate enforcement mechanism to ensure compliance with the provision. One state, Florida, does provide a good example of a confidentiality provision that requires confidentiality of all communications in any event subsequent to a mediation proceeding and provides for civil remedies in case of a breach. However, the Florida statute still does not provide any standards that online mediation service providers must adhere to in order to ensure the proper safeguarding of mediation communications.

This article proposes a variety of solutions to the confidentiality problem that is inherent in the online mediation process. While the development of new software to enhance the confidentiality and safety of online mediation communications is ideal, it is understood that the development and implementation of such software could involve a lengthy process. As an alternative, this article sets forth a regulatory framework that should be uniformly adopted by all online mediation service providers and that, if adhered to, would properly safeguard online mediation communications while still ensuring that the process remains effective. Nevertheless, even the uniform adoption of a regulatory framework could take just as long (if not longer) than the development of new software. Thus, this article encourages online mediation service providers to develop adequate privacy policies that are understood and knowingly accepted by all participants prior to participation in any online mediation.

Read the entire paper here

Posted in: Volume 11, Issue 1

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