Private Law Theory

ABSTRACT
Online mediation has developed significantly over the past decade, and increasingly so following the COVID-19 pandemic. Online mediation platforms are now integrated into both private and public settings, enabling mediation through diverse means-from videoconferencing software to dedicated platforms that use various procedural and technological tools, including artificial intelligence powered applications. The digital transformation of the mediation process introduces challenges and opportunities for mediators, parties, and mediation platforms, many of which stem from new digital data handling practices. This article explores how such digital transformation of mediation impacts the parties’ rights to self-determination and privacy. Recognizing that these rights derive from the parties’ right to autonomy, the article argues that the rights can be construed in terms of the parties’ control over the flow of information in mediation. The parties exert their control over information communication (the transfer of information among disputing parties and the mediator) and information analysis (identification and analysis of relevant information to support informed decision-making). Accordingly, this article proposes a model that conceptualizes mediation tasks and associated risks on two axes: the information reveals axis, which captures the types of information revealed and generated in online mediation; and the information processing axis, which reflects the analytical operations that the parties, mediator, and mediation platform perform on the information that has been revealed. Next, the article analyzes the norms that regulate participants’ control over the flow of information in the process, namely mediation norms that protect the confidentiality of the process and the self-determination of the parties, and privacy and data protection norms that govern the parties’ control over their personal information. Subsequently, the article discusses how the involvement of digital platforms alters the flow of information in online mediation by creating new types of information and effectuating new means of information processing that may undermine the parties’ control over the decision-making process and outcome, their privacy, and the confidentiality of the mediation.

Ringort, Rachel and Sela, Ayelet, An Information Flow Model of Online Mediation: Jeopardizing Privacy and Autonomy in the Shadow of Innovation (February 27, 2024), Cardozo Journal of Conflict Resolution, volume 25(3) 443-490 (2024).