The use of technology in a mediation practice

1. MEDIATING WITH
TECHNOLOGY:
OPPORTUNITIES AND
RISKS
NICOLE GARTON-JONES, , B.A., LL.B., CERT.CFM.
LAWYER & MEDIATOR, HERITAGE LAW

2. OVERVIEW
•Technology can significantly enhance your mediation
practice in terms of facilitating autonomy, accessing remote
clients and increasing the efficiency of your practice.
•That said, proper risk management procedures must be put
in place to ensure the security of your practice and to protect
confidential client information.
•This presentation will outline the various technology options
available to mediators as well as the risks and pitfalls to be
aware of.

3. TOPICS TO BE
COVERED
1. Why does a
mediator need to
be concerned with
technology?
2. What technology is
out there that I
should know
about?
3. What are the
opportunities and
risks of the new
technologies?

4. WHY FOCUS ON TECHNOLOGY?
•Mediators, in addition to keeping current with mediation
theory and practice, must also keep up to date with new
developments in business and technology in order to
effectively compete in an evolving and competitive
marketplace
•Risk management in the context of new technology is often
discussed in reactive terms, for example ensuring the
preservation of confidential and client information
• There is also a pro-active professional responsibility in
regards to technology, specifically a duty to keep abreast of
innovation to ensure that you are delivering the most cost
effective, timely and high quality mediation services possible

5. WHERE DOES INNOVATION
COME FROM?
•An idea is not a single thing. Rather, new idea
is a network on the most elemental level – a
new network of neurons firing in synch with
each other inside your brain. A new
configuration that has never formed before.
•How do you get your brain in these
environments where these new networks will
form? Specifically, what is the space of
creativity?
•Slow hunch, important ideas take a long time
to evolve
•Borrow other people’s hunches, combine
them with our hunches and create something
new
•Chance favours the connected mind
•In the pursuit of excellence and new
ideas, consider trying new technologies and
tools that expose you to lots of different
ideas, perspectives and backgrounds

6. THE MEDIUM IS THE MESSAGE
•Independent of concerns of profitability and
effective business management, it is also
important to note that innovations in
technology are not peripheral to individual
thought and practice
• Rather, commentators have harkened back to
Marshal McLuhan’s aphorism that “the
medium is the message” and noted that
changes in the structure and delivery of
information are also changing the human mind
•We are drowning in information, leaving a
permanent digital imprint, more digitally inter-
connected, but possibly more personally alone
than ever before
•Consider the impact of new technology upon
you as a mediator and also upon your clients

7. BASICS: HIRE AN IT
PROFESSIONAL & GET IT RIGHT
•Computers (desktop, laptops, netbooks)
•Computer Operating Systems (Windows & Mac)
•Monitors
•Computer Peripherals (mouse, keyboard, external storage)
•Printers (stand alone, networked, multifunctional)
•Scanners (low & high volume)
•Servers (solo, small firm, virtual, peer-to-peer)
•Server Operating Systems (Windows & Mac)
•Networking Hardware (switchers, routers, firewalls, wireless)
•Smartphones

8. SOFTWARE
•Productivity (Microsoft Office, Acrobat, OCR, voice
recognition)
•Security software (stand alone & enterprise versions)
•Case management (Amicus Attorney, Clio, Rocket Matter)
•Time & billing software (PCLaw, Tab3)
•Litigation programs (Casemap, Timemap)
•Document management (Worldox, DocuShare, Plain folders)
•Document assembly (HotDocs)

9. CLOUD COMPUTING
•Cloud computing is subject to considerable hype, and many
authors have commented as to its scope and meaning. It
includes a wide range of applications people use in daily life.
•Cloud computing is a model for enabling ubiquitous,
convenient, on-demand network access to a shared pool of
configurable computing resources (e.g., networks, servers,
storage, applications, and services) that can be rapidly
provisioned and released with minimal management effort or
service provider interaction.

10. TYPES OF CLOUD COMPUTING
•Cloud Software as a Service (SaaS): software that is deployed
over the Internet, available to the end user as and when wanted.
Hence, it’s also known as “software on demand”. Payment can
either be as per usage, on a subscription model or even free if
advertisement is part of the equation.
(Gmail, Clio, RocketMatter, Dropbox, Evernote)
•Cloud Platform as a Service (PaaS): is a combination of a
development platform and a solution stack, delivered as a
service on demand. (for software developers)
•Cloud Infrastructure as a Service (IaaS): delivers computer
infrastructure – typically a platform virtualization environment –
as a service. This includes servers, software, data-center space
and network equipment, available in a single bundle and billed
as per usage in a utility computing model. (Rackspace, i-Worx)

11. COLLABORATION TOOLS
•Google Docs
•Acrobat
•SharePoint
•Office 365

12. REMOTE ACCESS TOOLS
•Virtual Private Networking
•GoToMyPC
•LogMeIn
•TeamViewer

13. UNIFIED MESSAGING &
TELECOMMUNICATIONS
•Google Voice
•Voice over Internet Protocol (VoIP)

14. ONLINE ODR
•Online Dispute Resolution (ODR) taps into technology (principally the
communication abilities of the Internet) to help resolve disputes between
parties.
•ODR was born by the combination of ADR and Information and
Communication Technologies. In ADR, there are three parties: the plaintiff,
the defendant and the third neutral party (a mediator or arbitrator for
example). ODR differs from this three party system by introducing
computers and software – an independent fourth party that can help manage
the dispute. At the highest and most sophisticated levels of ODR, the
technology applies mathematical models and algorithms based on group
theory to resolve the dispute.
•There are many other implementations of ODR systems, that range from
simple blind-bidding systems (one variable, two parties) where the system
does not reveal what each person is willing to accept unless a settlement is
reached (the software compares each party’s position and declares a
settlement once the positions become sufficiently close), to assisted
negotiation, to adjudicative methods and others.

15. E-PROVIDERS OF ODR
•Modria (Modular Online Dispute Resolution Implementation
Assistance)
•the mediation room
•JURIPAX

16. WHAT’S HAPPENING IN BC
•Distance Mediation project sponsored by MediateBC for
family law cases (Cisco WebEx)
•BC Ministry of Attorney General and Mediate BC for low
value civil disputes
• Brings people together with technologies that bridge a
distance in order to help solve real problems

17. INTERNET SECURITY
•mediators need to understand basic Internet security in order to
responsibly communicate with clients and collaborate with others
online (for e.g., how a hacker accesses unsecured data from a public
hotspot and how to safely work on a wireless network)
•Know best practices for securing hardware and mobile devices as
well as safe practices for using web-based or cloud computing
applications to protect clients’ confidential information
•Things to know: encryption, secure socket layer (SSL) and
https, wireless networks, remote access to firm computers, mobile
device security, security of cloud-based services, VPNs, security
risks on public computers and networks, the most common online
security breaches and computer vulnerabilities, enabling encryption
hardware and software firewalls, password protections and disposing
of hardware when upgrading

18. INTERNET SECURITY
FURTHER READING
Legal Technology Resource Centre. Resources on Wireless
Networking and Security. American Bar Association, Web.
Securing Your Clients’ Data While on the Road, David Ries and
Reid Trautz
http://apps.americanbar.org/lpm/lpt/articles/tch10081.shtml
Cyberspace Under Siege: Law firms are likely targets for attacks
seeking to steal information off computer systems, Ed Finkel
http://www.abajournal.com/magazine/article/cyberspace_under_si
ege/

19. SAAS: PROTECTING
CLIENT DATA ONLINE
•mediators must ensure that client information is protected in the
hands of the technology provider or hosting company the firm
chooses
•Companies providing practice management technology will host
application data either in their own servers or will have a
relationship (usually a lease) with a third party provider that owns
the data centre where it houses the data on its servers
•If the provider offers geo-redundancy, then the data will be
housed in two different data centres in different geographic
locations

20. SAAS: PROTECTING
CLIENT DATA ONLINE
CONT
•Research the technology provider and understand the terms of
service agreement
•Understand the relationship and review any agreement covering
data access and confidentiality that may exist between the service
provider and the hosting company
•Understand: data return and retention policies, transferring data and
compatibility issues for restoring data, backups, export features and
offline versions of the software, third party hosting, server locations
and geo-redundancy, international laws that may apply if the services
are located in another country, response time of the provider and
tech support, confidentiality of law office data (including who has
access, procedures for government and civil search and seizure
actions, procedures for potential breach of confidentiality) and the
provider’s industry reputation and infrastructure to support growth

21. SAAS: PROTECTING
CLIENT DATA ONLINE
FURTHER READING
•Black, Nicole, Cloud Computing for Lawyers, ABA/LPM, January
2012
•Law Society of British Columbia, Report of the Cloud Computing
Working Group, July 15, 2011

22. SOCIAL NETWORKING
•Microblogging - Twitter
•Social Networking - Facebook, LinkedIn, Legal OnRamp,
Martindate Hubbell Connected
•Videos – YouTube, Vimeo
•Slides & document sharing: SlideShare, Docstoc, JD-Supra
• Location sharing – FourSquare
•Review & rating sites: Avvo, Yelp

23. SOCIAL NETWORKING
RISKS
•Drawing the line between personal and professional networking in
online social environments is difficult because the applications were
created with the purpose of sharing with as many people as possible
•User error: imprudent posts, breaching client confidentiality,
“friending” a judge
•At each step, the user must consider who has access to and control
of the account info he or she is providing to the social media
application
•Applications change privacy and account options and the user will
need to monitor his or her settings regularly, as well as the content
posted
•Be wary of third party applications; may be third party applications
running on social networking websites that request access to user
information and contact databases

24. SOCIAL NETWORING
FURTHER READING
Nicole Black and Carolyn Elefant, Social Media for Lawyers: The
Next Frontier, American Bar Association, 2010
Steve Bennett, Ethics of Lawyer Social Networking, 73 Alb. L.
Rev. 113 (2009)
Adrian Dayton, Social Media for mediators: Twitter Edition, Ark
Group, 2009

25. QUESTIONS
Nicole Garton-Jones, B.A., LL.B., Cert.CFM.
• Heritage Law
• nicole@bcheritagelaw.com
• www.bcheritagelaw.com
• http://twitter.com/NGartonJones