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Resolving Disputes During & Post COVID

Resolving Disputes During & Post COVID-19 Online Dispute Resolution (ODR) Leads the Way – Session 2

It was a pleasure providing an overview of collaboration and videoconferencing tools including CourtCall, Zoom, GoogleMeet, and Microsoft Teams for Execusummit Online earlier this month. Here are slides from the deck, a link to the presentation, and a transcript of my prepared remarks.

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Prepared Remarks

Thank you for that introduction Mark. And welcome everybody to this, the second session of today’s Executive Summit program. It’s an honor to be with you all and kick off today’s event with a timely discussion about the collaborative technology that is really dominating the way we all have begun to work and collaborate. It’s a paradigm shift perhaps not initiated by the COVID crisis but certainly cemented by it.

We’re going to talk a little bit about this technology which I’m sure most of you are or should already be somewhat familiar with. We’re going to discuss some of the specific products that are leading this communication and digital transformation revolution, some of the cybersecurity aspects of using these tools, and I’m eager to hear from you as to how it’s affecting the way that YOU work and support YOUR clients and business partners.

And as I noted we are also going to touch on cybersecurity in this presentation, because, especially as legal professionals, you all owe a duty to your clients to maintain a certain level of confidentiality, and in this context, we are talking about data protection and privacy, so we’re going to talk about some of that in a moment.

I’d like to encourage all of you to add your questions as they come to mind using the chatbox and we’ll try to address as many of them as possible during the presentation or afterward if need be. If we could let’s try to keep it within the scope of the slide we’re discussing.

But to begin it’s most helpful to take a thirty thousand foot view of the marketplace landscape as a whole, and as you see in this first slide I’ve just kind of thrown up a handful of logos for the leading players in the video-conferencing space. We are looking at an industry that is generating billions and growing at a clip.

You’re probably familiar with some of these like Zoom and Webex and I haven’t included products like CourtCall on here, or Big Marker, which we’re actually using for this particular Webinar, but we’ll talk about CourtCall at least, in a moment.

And I think in predicting who’s going to dominate this growing market, again, we have to go back to the issue of cybersecurity, confidentiality and data privacy, don’t we? Organizations, courts of law, law firms, and attorneys like yourself are going to want to select tools to protect you and your clients from breaches.

After all, when you’re using these video conferencing and file sharing tools you’re discussing some incredibly sensitive, seriously private matters, which in many cases… if that information were to leak, it would prove detrimental to the outcome you and your client desire.

And even beyond that, consider the reputational damage possible. So, this isn’t just the risk of having your files breached and exposed on the web, like say the Panama Papers incident. These are incidents that have serious financial repercussions.

We know for example that Ransomware pirates are now even targeting law firms just as much as other sectors such as healthcare. But think about something just as dangerous… which is being able to listen in on important mediations, deliberations, negotiations, hearings, and other legal disputes. It’s frightening to think about what bad actors would do with this information, isn’t it? And they could be in exotic countries and beyond the jurisdiction of your local authority if they even have the will to assist you. So security is up to you, plain and simple.

So, that’s going to have to come first, before any of the bells and whistles. And before the customer experience which is also important, but useless unless you can ensure privacy. And I think you’ll find that our court systems, though some may not know it now, will begin insisting on some of these protections in the systems they select going forward. And as those threats become more sophisticated, so will the technologies.

Actually, I have a book being published next April, Tomorrow’s Job Today Day, and it’s interesting because in the book we interview the head of legal operations for the International Criminal Court in the Hague, a brilliant man named Jones Lukose. And we learned from him that the administration of international criminal justice requires the strict security of discovery and evidence, and the handling of that information and those judicial proceedings are so sensitive that if executed improperly could threaten a witness’ life. They use a suite of Adobe products to support the execution of justice but it’s being constantly monitored and tweaked to ensure security.

Of course, here, domestically, we have a lot of jurisdictions that have already, in some cases for many years, been leveraging similar tools like court call, but we’ve seen this really more as voice service, a call-in type of option, rather than a full-fledged video conferencing and collaboration system.

Many of you may be familiar and have called into the courts so you’re familiar with this general type of service. I think that foundation and familiarity made it easy for IT administrators to facilitate… kind of an extension of that arena or forum, but it is by no means been expanded to the full interior of the country necessarily. It’s not uniform by any means.

In fact, especially in the case of appellate courts and supreme courts, videoconferencing is quite a novelty.

My wife, who happens to be an insurance defense attorney, well, we were closely following some of the court challenges, specifically in Wisconsin as they relate to public health measures in response to COVID. And I found it interesting that there was a lot of irregularity with regard to how the Supreme Court Justices approached the hearings. In many cases like this, you have attorneys speaking over each other, and even justices speaking over justices, and the digital execution of these highly sensitive proceedings really open up the courts, and dispute resolution to some challenging situations. Tone can be easily misinterpreted or perhaps revealed. I think that’s the most interesting aspect of this change, isn’t it? Trying to understand how to replicate what has for centuries been an in-person experience. And such as in the case of dispute resolution or mediation, how the quality of negotiation really suffers when it’s not face-to-face.

Now, are we ever going back, eventually, to this traditional format? Perhaps to some degree. But even so, it may not be soon. In any event, we know this technology is here to change and transform the way we work forever.

So, the question for you now as attorneys, as legal professionals, is how do you make the most of these new tools, and make sure they remain safe and secure?

Some of this not up to us, of course. We can’t guarantee a specific product’s security and safety. But we should be able to ask the right questions before we invest in a solution as we would any vendor. Videoconferencing software is no different. We want to have certain assurances not just about the product, but the company itself, right? So that’s why I’ve limited this presentation to some of the major players because I do think you’re playing Russian Roulette if you go with an unknown brand for this type of solution.

Let’s look at one tool that you can purchase, but you might have to use regardless of whether you like it, and that’s CourtCall.

CourtCall doesn’t exactly have complete market dominance, but certainly for its target group, the courts, it has made a lot of progress. And that’s partly because of the success of its teleconferencing offering which has been around since 1995. That’s twenty-five years since they’ve been in business and I think they’ve changed judicial proceedings fundamentally.

Let’s stop right there for just a moment so I can ask you to think about if you happen to have been practicing back then, how you think technology has changed the way you deliberate, the way you handle disputes? Because what you do of course is VERY PERSONAL. What you do requires human interaction, empathy, understanding. You need to project confidence. There is a whole psychology behind driving successful outcomes isn’t there? And it’s not just the letter of the law. It’s how you come across in front of a judge, a jury, your peers.

So how does this new paradigm impact your bottom line? How does technology change the game, for better or for worse?

You know, just a few years ago, you could get away with sounding professional to the judge, but be sitting in your bathrobe and they’d never know it. Today, you’re expected to be front and center. When you get on one of these calls, and you’re not showing a video, people suspect you’re not taking the meeting seriously. Or maybe that you’re not put together. What kind of confidence does that project? Not much. So, think about that the next time you opt-out of turning the camera on. Remember, you can still wear your boxer shorts, as long as the camera is shooting you from above the waist!

So, getting back to Court Call. They’ve dominated but they don’t own the private sector. That means you can choose. But I think they’re a pretty good option, especially with legal folks, because of their years of experience in the marketplace. The downside is of course you’re dealing with clients, and with adversaries that may not be tech-savvy, and this platform is just not as user friendly as say, Google Meet or Zoom, which we’re going to discuss next.

Now, most of us know Zoom, and we know how easy it can be. Because it’s simple, they’ve rocketed to the top and it’s been a pretty impressive trajectory. But that leap has come with growing pains. This is a company that has been doing business since 2011, but it’s only been in the past few years, as a result of COVID, and there free options, that you’ve seen them saturate every business market from professional services to education. They’re everywhere. Even my five-year-old daughter has Zoom meetings. And my 89-year-old mother yucks it up from time with her girlfriends. The name is pretty catchy too, right. It sounds more fun than WebEx or GoToMeeting.

Zoom is also easy, but that means that Zoom has fewer features ultimately than Court Call or specialty programs like the one we’re using right now. It’s less tailored to the legal industry. And as far as security, it’s been a complete nightmare for the company which they’ve surprisingly weathered better than most.

I think it was in April, at the beginning of the COVID that we learned half a million accounts had been compromised. That was a huge breach. You may have gotten an email from them asking you to reset your password. And if you did, your information is likely being traded on the dark web.

Some of these Zoom accounts are offered for free on hacker forums so that hackers can use them in zoom-bombing pranks and malicious activities. Others are sold for less than a penny each!

And just a note here, if you don’t realize this already, your passwords must be different for each site or service you use, because hackers often try these credentials on different sites, because of that very familiar user practice of using the same password over and over.

So that was Zoom’s big failing. But since then we’ve discovered many, many more flaws in their system and the code.

For example, just a few days ago the Zoom Windows client was shown to have a critical flaw that would let a hacker remotely take over any PC running Windows 7 or earlier. Zoom fixed it after the public learned about it.

Earlier in the month Zoom had to agree to give end-to-end encryption to every user, not just paid subscribers.

Some of these flaws are actually being discovered by CISCO which offers a competing product, but the worst of these involve using Zoom to send malware in the form of a compressed file to a user via a Zoom meeting chat. If they were to open it, it would attack the host computer and possibly spread to others on the network. So the risk is very much there, and as much as they combat it, hackers find a way to cat and mouse.

Given all that, my thought is that for non-confidential meetings, and even perhaps for situations where you’re working out logistics like scheduling, or setting some terms without disclosing private data or details, this is a pretty useful product. So don’t shy away from it completely.

But when you’re dealing with two individuals, or two corporations, or an individual and a corporation… there’s a lot of sensitive data that can come out. If somebody’s found a way to hack that meeting room, and eavesdrop, especially if it is a high-value target, you could be running a big risk.

Now moving onto our next tool, Google Meet, there have not been any major security risks reported about this tool, but I should mention that Google isn’t immune to getting hacked. In fact, we have seen that happen with its Social Media Platform GOOGLE PLUS, which they had to shut down because of well essentially, security flaws and also the product was not very successful to boot.

GOOGLE MEET has been a little bit luckier. Like Zoom, with a Gmail account, you can have free meetings with very few restrictions. Both of these services offer premium services, but I think you have a lot more freedom with Google Meet. You can meet up to an hour with many participants whereas Zoom puts a limit on that, and they restrict the free version to about 45 minutes. The other issue is that a lot of organizations surprisingly limit Google access in their enterprise and that prevents adoption. Still, because Google’s product suite is so vast, it’s going to allow you to integrate and utilize some other important services as part of its platform. It’s going to be easier to for example to record the meeting. It’s going to be easier to share files and possibly know more metadata about the meeting participants.

And that’s one of the strong suits for the next product I want to talk about with you, Microsoft Teams. So, if you’re a Microsoft House you’re probably experienced with teams. Certainly, a lot of corporate law departments are on board here. It is a collaboration suite with a BIG video conferencing component. So, as we move into COVID, within the enterprise, it’s this tool, especially for big companies, that has done the trick in replicating the in-person experience, in helping to keep the lights on so to speak.

But because it is built for the enterprise, the infrastructure favors or prioritizes collaboration within the company and so external sharing or collaboration is limited by permissions. Some features don’t extend to vendors and third parties. So, within the group it’s great, but once you start needing to calendar and meet across companies you run into difficulty. However, if both companies have Microsoft Teams, yes, you can meet, but there are restrictions on using the shared workspace.

Now as you think about your role, and you see these various products and features, you can’t expect to use just one. These products are going to evolve. But going back to my original premise. It’s really safety over convenience here isn’t it?…. Just by the nature of the discussions, you expect to be having in your mediations.

So let’s talk about that. I want to share some best practices in the videoconferencing space that I think you’re going to find useful, provided the option is made available to you.

The first is a no-brainer. Passwords. I mean his is something you should mandate. There has to be authentication for your meetings. You wouldn’t allow somebody without a picture ID to enter your building, would you? At least not usually. So why would we allow this in a digital meeting? It’s no different. It’s a minimum requirement really.

The second thing is screen sharing. And do we expect our clients, or our meeting participants, to share inappropriate images? Probably not. But maybe in a highly contentious legal dispute. Can you imagine if you were handling the settlement agreement between Johnny Depp and Amber Heard right now? So, it’s a good idea to go ahead and restrict that option as a default in your settings. This way you control what is shared and still get the benefit of the feature.

Another thing you can restrict is display names. It might seem trivial but that’s the kind of thing that gets a meeting off to a rocky start. It’s not a serious way of conducting business and you want an accurate record if you’re recording the session or building a transcript from it, right?

Lastly, use Waiting Rooms. The same way you would in real life. Keep people at bay before they walk into your digital meeting, so you can be prepared for them. So you can manage any last-minute changes and set expectations for others that have already joined you. It’s not a security issue, but you can even keep them waiting if you already do that strategically when its an in-person meeting.

And before I finally leave you, I want to broaden this security guidance just a little bit by refreshing everybody with some essential Cybersecurity habits. And I think we make these presentation notes available but I do want to stress a few items today before we go.

The first may not seem as important as it used to but because so many of us are now working from home, it’s vital that you secure your home Wi-Fi connection, especially when you’re using it to access work networks, and engage in negotiations over videoconferencing. You’d be surprised at how many people fail to secure this one easy vulnerability.

Now the second one is interesting because although Google supports 2FA or two-factor authentication to access its platform, it’s not a requirement on some of the other platforms we discussed here today. That’s why it’s so important to use the tools embedded in your videoconferencing application which I referenced on the earlier slide.

The final one here, you can apply to your videoconferencing sessions, which is to enforce session timeouts on software with sensitive information. Make sure you don’t leave these applications open and walk away from them without shutting down access. You’re likely going to be following up with a client and you don’t want a hot mic or even documents accessible after you’ve concluded your meeting.

I encourage you to practice the rest of these tips always because this is the digital world we’re going to live in, whether we like it or not, come hell or high water.

Now Before I go or we answer any questions I just want to leave you with one final thought which is, if you haven’t already, get used to embracing this type of technology, not as a temporary band-aid for COVID, but as a regular part of your skillset. Expect more of this in the coming years and remember that those who make the most of this technology today WILL have the edge tomorrow. It’s a concept that I write about in my new book, which I told you about earlier, and that you can pre-order now on Amazon called Tomorrow’s Job’s Today.

Let me know what you think!

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