The onset of the COVID-19 pandemic impacted the lives of people worldwide. Those disruptions continue to have deep ramifications. Businesses across various sectors of the economy have been disrupted, schools continue to close their doors, and the global supply chain remains upended. The impacts of the pandemic were also felt in the nation’s justice system, which shuttered its doors to in-person proceedings in the early days of the pandemic.
Like most institutions and businesses that moved to conduct businesses virtually, courts pivoted to remote proceedings to continue meeting Americans’ everyday judicial needs, including alternative dispute resolution (ADR) services. While court proceedings continued virtually, so did dispute resolution. As the American Bar Association (ABA) pointed out, “online dispute resolution (ODR) options have been available since the 1990s, but with advances in video conferencing technology as well as a greater need for remote options due to the ongoing pandemic, ODR is more popular than ever.” ODR offers several perks– people can join facilitations from anywhere in the world as long as they have internet access and a device compatible with the chosen video conferencing technology. Virtual dispute resolution continues to be a popular option for ADR proceedings, even as courts and offices have returned to some in-person operations, because of the time and cost-efficient character of virtual proceedings, the elimination of travel time and cost, and the ability of key decision-makers to easily participate.
Technological advancements amid the pandemic have allowed people to remain connected, participate in distance learning, access telehealth, and several other crucial day-to-day activities. However, the fast shift to digitization, remote access, and cloud-based data storage requires critical examination and investments in cybersecurity protocols. For ADR professionals, it is critically important to exercise caution when handling confidential information that may derive from virtual communications.
Before the advancements in technology that we experience today, ADR professionals focused more on compliance with the confidentiality obligations outlined under the rules and guidelines detailed by individual courts and organizations. These guidelines typically provide directives that prevent parties from discussing privileged information discussed in the evidentiary process of mediation. On the confidentiality considerations related to ADR before major technological advancements, Certilman and Wiechmann, writers of ADR in the Age of Cybersecurity, said, “a little common sense and discretion seemed all that was required. The materials to be kept confidential were typically maintained and exchanged in a hard copy paper format…there was little if any focus on whether the document production might contain sensitive personal data.”
As technology continues to change and alter how business is conducted, it is keenly crucial that all parties involved understand their evolving responsibilities. It is vital that ADR professionals stay informed about the changes in technology and the ever-evolving data protection laws. Currently, there are three states in the U.S. that have comprehensive consumer privacy laws: The California Consumer Protection Act, and its amendment, the California Privacy Rights Act, the Virginia Consumer Data Protection Act, and the Colorado Privacy Act.
Other developments related to data privacy laws in the United States:
- In July 2021, the Uniform Law Commission finalized its Uniform Personal Data Protection Act (UPDPA) as a model template for state privacy legislation.
- Several other states will continue considerations for privacy bills this year, including D.C., Illinois, Massachusetts, Minnesota, New York, North Carolina, Ohio, Oklahoma, and Pennsylvania.
With the rise of data privacy legislation and continued advancements in video conferencing services, burgeoning email usage, cloud-based storage, and the increased utilization of other forms of electronic transmission of information, it is vital for ADR providers to understand the potential security risks associated. As the people entrusted to safeguard personal information to help resolve disputes, ADR professionals need to understand the potential risks involved and take proactive steps to stay informed on how to avoid putting essential data at risk.
Although the pandemic may have initially heightened awareness around technological advancements and the importance of implementing good cybersecurity practices, it has become clear that understanding these advancements and navigating this space will remain of top importance long after the pandemic is over. Taking continued steps to learn and stay abreast of changes in technology and the law will help ADR providers serve their clients safely and effectively, while also staying at the top of their game.
At Alterity ADR we have listened deeply and understand the many pain points associated with ADR. We are excitedly forming a group of corporate law department lawyers, defense lawyers, and plaintiffs’ lawyers to work with us to create a blueprint that defines GREAT ADR. What are the rituals, competencies, and infrastructure required to be GREAT at providing ADR services? We have a point-of-view, but we are eager to listen and learn more. Join us in defining GREAT ADR — ADR Done the right way — ADR Done the Alterity Way!
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Alterity believes the information in this article to be current as of the date of publication, but this material should not be construed as offering legal advice
McBride, M. (2020, October 27). ODR in the Era of COVID-19. Americanbar.org. Retrieved January 10, 2022, from https://www.americanbar.org/groups/family_law/committees/alternative-dispute-resolution/odr/
Jurva, G. (2021, August 24). The impacts of the COVID-19 pandemic on State & Local Courts Study 2021. Thomson Reuters Institute. Retrieved January 10, 2022, from https://www.thomsonreuters.com/en-us/posts/legal/pandemic-impact-courts-report-2021/
Certilman, S. A., & Wiechmann, E. W. (2019). ADR in the Age of Cybersecurity 1. New York State Bar Association. Retrieved January 10, 2022, from https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=92323
Lively, T. K. (2022, January 13). US State Privacy Legislation Tracker. Retrieved January 18, 2022, from https://iapp.org/resources/article/us-state-privacy-legislation-tracker/