ODR and the Law of Unintended Consequences
One of the main lessons I learned early in my career with a very old-school technology company was the law of unintended consequences. It goes like this: every technology solution creates an unanticipated problem. Every. Single. One. From Eli Whitney’s cotton gin, which entrenched slavery as a mode of production, to Mark Zuckerberg’s Facebook, which increased teen suicide as a result of online bullying, or, most recently, Boeing’s 737 Max-8 nose pitch software, which was designed to stabilize the nose-pitch in order to prevent engine stalls, but regularly results in the airplane crashing nose-first into the ground from ten thousand feet. All of these technologies had consequences that only in retrospect were obvious, but which their inventors failed to anticipate. Silicon Valley’s launch-first, fix-later ethos only exacerbates such consequences. We have learned this lesson in recent months as we relied on online solutions to conduct our work as a result of the shelter-in-place orders. Online dispute resolution (“ODR”) relies on cloud-based apps like Zoom and, therefore, is vulnerable to the same privacy and security issues that Zoom has brought to our online work lives lately. But, that does not mean mediators should not use it. Rather, ODR practitioners need to understand the bugs and know how to fix them in order to make ODR a secure, private and professional means of ADR.
One of the unintended consequences of Zoom’s success is “Zoombombing.” That’s when someone gains access to a Zoom meeting in order to interrupt it by scribbling all over the screen, or posting racist or pornographic material, bringing a meeting to a screeching halt. Zoom promised that its conference rooms were secured by end-to-end encryption. As it turns out, they were not. But hacking is not the only way an unauthorized person can bomb a Zoom meeting. Anyone with the URL sent in the invitation to a meeting can gain access. Preventing unauthorized access requires knowledge of Zoom’s settings and establishing protocols for ODR.
The main platforms available for ODR practitioners include Legaler (www.legaler.com), Crek ODR (www.crekodr.com) Modron Spaces (www.modron.com) and Zoom (www.zoom.com). Regardless of the platform used, it is the ADR practitioners’ responsibility to ensure that ODR is conducted as securely and privately as in-person mediation would be. Each of these platforms offer different features and ODR practitioners should evaluate each of them individually to see which one best suits their needs. Modron Spaces appears more like a self-help site for dispute resolution. Legaler and Crek ODR are designed specifically for ODR. Zoom is on the other end of the spectrum and was designed to be used as an enterprise app by large organizations.
Secure ODR begins with the agreement to mediate. Mediation agreements should specifically address the process of ODR depending on the platform used and describe the steps the user must take to participate in the ODR platform. The mediator should consider holding one or two video conferences with attorneys and parties before the mediation to discuss pre-mediation matters and to allow attorneys and parties to familiarize themselves with the ODR process.
Regardless of the platform, the mediation process will include the mediator sending out an invitation to join the mediation. The mediation agreement should state that the parties and counsel agree that they will not forward the URL to anyone who is not supposed to attend the mediation. The mediator should also use a password for the mediation and serve as the host. The mediator should not allow another person or a party or party’s attorney to serve as the host. With respect to Zoom, the mediator will want to eliminate the record button. The mediation agreement should state that recording the mediation is prohibited.
On Zoom, the mediator should set up a Waiting Room. The Waiting Room is where counsel and parties will land when they click on the URL in the invitation. The Waiting Room should be set up so that participants know they are in a waiting room rather than looking at a blank screen. Otherwise, they might think the URL is wrong and leave the meeting. The Waiting Room also serves to help the mediator ensure only the proper parties are viewing the mediation.
When selecting breakout rooms on Zoom, do not allow Zoom to pick them. Click the “Select Manually” button and set the number of breakout rooms needed. Participants in a breakout room cannot see or hear one another and viewers in one breakout room cannot see or hear the host (the mediator) when the host is in another breakout room. When the mediation begins and the parties are in their breakout rooms, the mediator should “Lock” the meeting.
In addition, on Zoom, the host should uncheck the feature that allows participants to leave a breakout room and uncheck the box for a 60 second countdown. If the mediator decides to bring the parties together at the end of the mediation to finalize the settlement terms, breakout rooms will be lost after 60 seconds, which could be a problem if for some reason the parties need to breakout again.
Finally, it is important to use the latest version of Zoom. As more bugs are pointed out, more versions are being released by Zoom with bug fixes. If these steps seem rather daunting, because they are, ODR practitioners should consider hiring staff or consultants with expertise in ODR technology or train their existing staff to set up ODR on the chosen platform.
While the spotlight has fallen on Zoom and ODR as a result of the shelter-in-place orders, whether ODR will transform how we mediate and arbitrate is not yet known. Surely, courts will rely on ADR to help them sort out their messy calendars once the shelter-in-place orders are lifted. And ADR practitioners will increasingly rely on ODR to do their jobs. In order to do so professionally, securely and privately, mediators and arbitrators will need to know not only the bugs associated with ODR, but also how to fix them.