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Nearly 250 people participated in the MSBA’s Emergency Mediation Town Hall on April 2, 2020. Moderated by ADR Section Council Chair Jolie Weinberg, a panel of experienced mediators explored the nuts and bolts of ODR (On-Line Dispute Resolution) in a COVID-19 environment. The wide-ranging discussion covered preliminary matters to be considered when planning an on-line mediation, ethical considerations unique to ODR, and technological considerations for choosing an appropriate platform.

Ms. Weinberg (Weinberg & Schwartz, LLC) spoke generally about the advantages and disadvantages of ODR, suggesting ways that mediators can prepare themselves and attorneys (and how attorneys can help prepare their clients) for on-line sessions. Ms. Weinberg observed that ODR offers a safe, convenient, accessible and cost-effective means to address client needs in an era of mandatory social distancing. She explained that video technology allows participants to do almost anything they might do in person, like read the visual cues of participants, caucus in breakout rooms, and share and execute documents. With proper preparation, Ms. Weinberg concluded, ODR is appropriate for virtually any type of case, and may even be the wave of the future.

CeeCee Paizs (The Mediation Center) addressed ethical considerations in the ODR context. While ADR principles regarding confidentiality, competency and self-determination remain the same, the introduction of a digital platform introduces new challenges. With respect to confidentiality, Ms. Paizs stressed the importance of selecting a secure platform and establishing ground rules (preferably in writing) to minimize the risk that unauthorized individuals might see, overhear or record the discussion. Mediator competence in an on-line environment also requires competence with respect to the technology, including both how to use it (to set up breakout rooms, for example), as well as how to explain it to the others. Ms. Paisz suggested that a mediator establish proficiency with one or two platforms, and then use them exclusively. This advice, she noted, might conflict with a participant’s right to self-determination, which includes the right to select the technology to be used. Ms. Paizs offered suggestions for resolving this conflict, along with many other tips for conducting an on-line mediation.

To assist the practitioner when selecting an appropriate platform, John Greer (Patuxent Mediation Services, LLC) explained the features to look for in a videoconferencing service, including the controls necessary to monitor participation and establish breakout rooms, the availability of encryption and other security features, and tools for screen sharing and scheduling. Mr. Greer compared the most popular platforms (Google Hangouts, GotoMeeting. Cisco WebEx, Slack and Zoom), and provided details regarding pricing and the features available in each. He, too, stressed the importance of technological proficiency, and the need for back-up plans in the event of the inevitable glitch.

 

The full 90-minute discussion on these and other topics can be found here.