Practical tips for on-line Arbitration and Mediation: IT Panel Article 2006

There are one or two security issues that ought to be considered, even if you and your client decide to agree to an on-line hearing in the open, as if the hearing were conducted in public.

First, consider having a secure connection between the parties. If an open connection is used, it is possible, although the probability may be remote, that a third party might hack into the hearing. However, even if this was to happen, the mischief that such a third party could cause is debatable. Other than a denial of service, it would be difficult for an attacker to impersonate one of the parties successfully (in either video or audio conference form). However if documents are passed unencrypted over the same link, an attacker could, again with a low degree of probability, be in a position to modify them so that the document received differs from the document sent.

Secure connections, in essence, comprise an encrypted link between the points of the communication. This could be a virtual private network (also called a VPN), which can be set up by the video organizer. Another method is to have a secure link using the https model.

Some practical problems may occur as a result of having a secure connection, because the amount of bandwidth used when establishing and maintaining an encrypted connection will be greater than with an open connection. As a result, you may notice the images taking longer to pass between connections, and the speed at which speech is transferred may also slow down as well. These problems can be overcome by ensuring you have an appropriate size of bandwidth to cope with the increased activity required when using an encrypted link. The video conferencing facility should be able to advise you of the costs of providing such a secure link.

It is worth observing that, depending on the cryptographic algorithms used, encrypting the communications does not introduce a great deal more traffic into the link for something as bandwidth-intensive as video conferencing. The main requirement relates to the capabilities of the devices at each end of the communication link. What is relevant is to ensure that all required compression of outbound streams is carried out before encryption takes place.

Recording the Proceedings

Second, you ought to give thought to whether the proceedings can be recorded by either or both sides. You may think that because you are not recording the hearing, therefore the other side is also not recording the hearing. How do you know that they are not recording the hearing? Even if you have assurances from the lawyers representing the other side that the hearing will not be recorded, you ought to consider taking steps to ensure that there are sufficient safeguards in place that the hearing will not be recorded by any party to the hearing.

If recording of the session is to be allowed, this will, of course, raise issues if the parties' eventual copies of the hearing are not identical because of the bandwidth issues, which may result in some data loss. However, from a practical point of view, if the communication links are bi-directionally authenticated cryptographically, this will provide additional assurance to both parties, in that neither can infer that the recording was altered in any way.

Passing of Documents between Parties

Invariably, the documents each side relies upon will have been passed between the parties before the hearing, and the documents may also be in electronic format. However, in the event that either party wishes to introduce additional documents for good reason during the course of the hearing, it might be useful to set out the protocol in advance for the exchange of further documents.

Also, it will be useful to establish in advance how each party is to deal with the documents. If it is agreed that the proceedings will be conducted over an open connection, consideration to be given to providing for some elementary protection.

During the Hearing

Invariably, both clients will wish to discuss matters with their respective lawyers during the course of the hearing. This is why you ought to make yourself familiar with the mechanism of the video conferencing facilities. For instance, and depending on the equipment used, one or both sides may be able to move the camera around the room remotely. So if you are in London and the other side in Buenos Aires, it may be possible for you to move their camera around the room to see whom else is in view, and what else they might have in the room. This can work both ways. In addition, again, depending on the facilities you are using, you may also be able to set the voice controls to mute, thus ensuring you can have a private conversation with your client (provided the other party does not have the ability to lip read).

However, it is not always possible to set the equipment to mute, and it might be possible for the other side to listen to conversations that you think are conducted in confidence. You might consider using some visual concealment at such times, such as a lens cap, for instance.

On-line mediation and arbitration hearings may be something for the future, if some practitioners are not already using them extensively. Whether you are conducting them now or intend to conduct them in the future, it is suggested that you consider some or all of the points raised above, if only to demonstrate you have considered the professional duties that may be imputed to you, should the client decide to complain after the event.

Stephen Mason