Online Mediation and Confidentiality – 2 Mediators’ Concerns

After reading my post For the First Time, the United States Postal Service (USPS) Tries to Resolve a Workplace Dispute Through Online Mediation one mediator wrote:

I have an issue with confidentiality, how is it controlled with regards to recording or even transmitting the mediation to others and how could this be monitored with the software you are using?

And another mediator wrote:

Unless one has some sort of convincing evidence that any online mediations program/software is UNmonitorable (my word), which seems virtually impossible, there are many mediation situations unsuited to an online process. I’d be interested in hearing from Giuseppe about how the Virtual Mediation Lab proposes to deal with this concern.

Here is my answer to both mediators:

The way I see it, in practical terms the possibility (or risk) that the parties may record a mediation session is exactly the same whether their mediation is conducted online or face-to-face.

(Mediator #2) is absolutely right. Technically speaking, it is virtually impossible to prevent parties from video recording what they see and hear on their PC or Mac during an online mediation.

But is that risk any different than the same risk in a face-to-face mediation setting? I don’t know about you, but when I mediate face-to-face I never ask the parties to empty their pockets or bags in front of me or to hand me their Iphones or smartphones — even though I am fully aware that, if they wanted, they could easily use those devices to audio record our sessions – unbeknown to me.

All I can do (and I do, face-to-face and online) is reading to the parties our Agreement to Mediate, which, besides covering thoroughly the confidentiality issue, also reads:

“The mediation session will not be recorded by anyone (either video or audio) and no transcript of the session will be produced”.

After reading that clause, I ask the parties:

    • Whether they are crystal clear as to what that clause means
    • To turn off any devices they may have (e.g. Iphones, smartphones or tablets)
    • And, if we are online, to confirm that there is nobody else in the room with them

I hope you’ll find the above info useful for assessing and comparing the risk of recording a mediation online vis-a-vis face-to-face, and for deciding whether there is anything else that we can realistically do to fully eliminate that risk.

Giuseppe

Do you have any other thoughts or concerns about confidentiality in online mediation? If so, please share them through our Virtual Mediation Lab LinkedIn Group.

Thank you.