Daniel Rainey

Code of Disclosure, Cont.

The newly published Singapore International Dispute Resolution Academy (SIDRA) International Dispute Resolution Survey:  2020 Final Report comments on the issue of standards in international mediation.

Article 5(1)(e) of the Singapore Convention sets forth that enforcement may be refused if there was a serious breach by the mediator of standards applicable to the mediator or mediation, without which the settlement agreement would not have been signed. Further, Article 5(1)(f) specifies that enforcement may be refused if the mediator failed to disclose information that gives rise to justifiable doubts regarding the mediator’s impartiality or independence and had the mediator disclosed such information, the parties would not have signed the settlement agreement.

The Singapore Convention neither contains substantive ethical obligations applicable to mediators nor does it make any reference as to how to determine such standards.  (P. 66) Available at: http://mediationblog.kluwerarbitration.com/2020/08/16/what-users-say-about-technology-in-mediation-2020-sidra-survey-part-3/

This is the same issue that Ana Goncalves, Francois Bogacz, and I highlighted at the roll-out of the Singapore Convention, in Singapore earlier this year, and again in an article in the International Journal of Online Dispute Resolution (IJODR), and again in the recent Seven Keys book published by Mediate.com. 

The Standards work being done by the Singapore International Mediation Institute (SIMI), the International Mediation Institute (IMI), the US American Bar Association (ABA), the National Center for Technology and Dispute Resolution (NCTDR), and the International Council for Online Dispute Resolution (ICODR) all bear similarities and even have some crossover – some of my colleagues and I are involved in all of the above efforts. 

At the risk of flogging a dead issue, the approach that Ana, Francois, and I have suggested is the creation of a code of disclosure for mediators, domestically and internationally.  For years mediation scholars and practitioners have commented on the fractured nature of mediation around the world.  Given this reality, it would be a long, uphill, Sisyphean struggle to create a universal code of conduct or set of standards for international mediation.   However, creating a set of categories that would constitute an adequate disclosure of process and approach that parties could understand and accept is not so daunting.

We should, as a “field,” get on with it.

Seven Keys E-Books

Mediate.com has published the Seven Keys book online – to access all of the chapters, including two that I co-authored, click HERE

To directly access Key 4 (Code of Disclosure) text and video interview, click HERE

To directly access Key 5 (Full Advantage of ODR) text and video interview, click HERE

5th Key

The short article that we co-wrote is now available on Mediate.com.

Portuguese Chapter

This book, “Themes in Mediation and Arbitration,” contains a chapter written by Ana Goncalves and me. It’s my first publication in Portuguese.

Black Lives Matter/All Lives Matter

Once again, I find events troubling enough to make me want to speak out – if I were not reasonably certain that contracting the COVID virus would be life-threatening for me, I’d probably be in the streets. In lieu of that, here’s my take on BLM/ALM.

During the Tulsa rally and the events swirling around its perimeter, groups of protesters shouted “Black Lives Matter,” and groups of rally supporters responded with “All Lives Matter.” That seems to be a common occurrence at demonstrations and political exchanges across the country. Why should that bother me? Let me use an analogy.

If I told you, “my sister just died,” you would probably respond with something like, “I’m sorry for your loss.” You might truly mean that, and I would appreciate the expression of condolence. Even if you did not know me well, did not know my sister at all, and really were not affected, you would probably still take the “sorry for your loss” approach because that would be considered, in context, to be sensitive and polite. Again, I would appreciate the expression. And, even if you did not feel any deep sense of my loss, you probably would not say something like, “everybody dies sooner or later.” While that is objectively true, and is a statement that I would agree is true, in context that is something only an unfeeling, crass, jerk would say.

Black Lives Matter. What is the context? Statistics can be overused, but some basic comparisons make it clear that, on average, black lives are lived and valued differently than white lives.

The police kill a lot of people – over one thousand in 2019. The rate of fatal shootings of black citizens by police is far higher than for white citizens. Whites are killed by the police at the rate of 13 per million annually. Blacks are killed by the police at the rate of 31 per million – nearly three times as often. If you add hispanics to the mix, police kill non-white citizens at the rate of 54 per million – more than four times as often.

Black defendants are six times more likely to be sentenced to prison for crimes similar to those committed by white defendants, and the sentences are proportionately longer. White minors are arrested at the rate of less than 2000 per 100K. Black minors at the rate of 5000 per 100K – more than twice as often. White adults are incarcerated at the rate of less than 500 per 100K, while black citizens are incarcerated at the rate of 1500 per 100K – more than three times as often.

A widely reported analysis by EdBuild suggests that school districts with non-white students as a majority receive, across the US, $23 billion dollars less each year than districts with majority white students – the average white student begins with a head start on black students, an advantage that reverberates throughout life. There are obvious exceptions, but most citizens die in the same social class in which they are born. Less than 10% of whites under 18 live in poverty, while more than 30% of blacks under 18 live in poverty.

Black infant mortality rates are more than twice as high as white infant mortality rates – 4.7 per 1000 for whites, 11 per 1000 for blacks.

Maternal mortality is worse: 14.7 per 1000 for whites, 37.1 per 1000 for blacks.

Average life expectancy for a black citizen is nearly 5 years less than for a white citizen. To quote the American Bar Association’s research findings: “Black people simply are not receiving the same quality of health care that their white counterparts receive, and this second-rate health care is shortening their lives.”

There are many complex reasons for all of the things that indicate that black lives do not matter as much as white lives in this country. And it is possible to point to notable exceptions to all of the statistics I’ve cited. But the fact is that, in context, black lives are treated as if they do not matter in the same way white lives matter.

So, hearing “Black Lives Matter” and responding “All Lives Matter” is analogous to telling me, “everybody dies sooner or later.” Black Lives Matter. Yes, they do. All Lives Matter. That’s objectively true, and I agree that all lives matter. But responding to Black Lives Matter with All Lives Matter is, in context, at best insensitive and is, frankly, offensive.

7 Keys

Posted on the Mediate.com main page:

Every Friday for the next seven weeks, Mediate.com will be publishing a series of peer reviewed articles under the collective title Seven Keys to Unlock Mediation’s Golden Age. The objective of the Seven Keys is to encourage discussion among all stakeholders on navigating mediation’s best future.

I collaborated on two of the articles in the series. The first is under the 4th Key (The Profession), addressing a universal code of disclosure for international mediation (co-authored with Ana Goncalves and Francois Bogacz). The second is under the 5th Key (Technology), addressing ODR’s potential (co-authored with Ana Goncalves and Jeremy Lack).

White Privilege

There was an op-ed in the Washington Post this morning that basically argued that white folks should just shut up and listen instead of talking about the egregious, ongoing attacks on dignity and justice that black folks endure as part of their “freedom” in the US.

I respectfully disagree.  I think there is a moral imperative for privileged old white guys like me to speak out loudly to those who don’t get it.

So, at the risk of bringing down the wrath of all the Internet trolls out there, here goes my take on white privilege and the current political climate.

I hate to break it to all the whiners out there who complain about being white and having it tough, but white privilege has nothing to do with having an automatically easy path through life.  There are some, like our great leader, who had money showered on them by a rich father, and who have had an easy path through life.  Most of my fellow countrymen and countrywomen, however, didn’t have that lifestyle kick start.

My father had a ninth grade education from a small school in rural Mississippi.  After serving in the Navy in WWII, he went through an apprentice program and became a sheet metal mechanic.   He worked his butt off for his entire life to make ends meet – and they often did not exactly meet.  My mother finished high school and, after working her butt off rearing my sister and me, worked a series of secretarial jobs to bring in money and get those ends nearer to meeting.  I have done ok, but it’s not because life was easy.

Was I the beneficiary of white privilege?  You bet your life, I was.  For a start, growing up in the Jim Crow South, the public school I went to was far, far better funded and supported than the black public schools.  When I graduated from high school, I could go to any university I could get into and afford, and there was no grandstanding asshole standing on the admin building steps telling me I couldn’t go there because of the color of my skin.

That, ladies and gentlemen, is white privilege.

A friend and colleague of mine had a father who was a diplomat.  While they were abroad, the family arranged for my friend to attend a private school – and the school was thrilled to know that they were getting the child of an American diplomat – until he showed up at school with dark skin.  Then they suddenly had a “space” problem and couldn’t admit him until the diplomat went to court.  If my father, heaven forbid, had been a diplomat and I had shown up for school, they would not have lied about not having room and in fact, they’d have made room for me if they had to.

That, ladies and gentlemen, is white privilege.

My parents never considered warning me about how to behave with the police when I was stopped.  First of all, it was not likely that I would be stopped for no reason (and they would have been all for me being stopped for a good reason), and second it was basically inconceivable to them that I would be handled in an unfair and dangerous manner.   Every black family I know with children routinely have “the talk,” especially with young black men, about how to behave when stopped by the police.  The assumption is that they will be stopped for “driving while black” or some other “reason” that has black men stopped at a ridiculously higher rate than white men.  Even today, just a couple of months ago, I felt perfectly safe making snide comments to a cop who had stopped me for violating a minor traffic law – I knew that the chances were approaching zero that he would do anything other than hand me the ticket and tell me to have a nice day.

That, ladies and gentlemen, is white privilege.

But if you REALLY want to see white privilege in action, take a picture of this.  A group of fat-assed white dudes carrying automatic weapons marches on the state capitol building in a Midwestern state, actually making threats against the governor.  What is the police response?   “Now, boys, I know you’re upset – you just go on and have your protest.”  I would ask anyone with at least one lonely neuron firing in her or his brain to consider what would be the police response if a bunch of black dudes marched on the state capitol carrying automatic weapons and shouting threats to elected officials.

That, ladies and gentlemen, is white privilege.

Or take a picture of this.   A black family is at home, standing on their own front porch, not protesting, not shouting, just standing on their own front porch as a police line walks by on the way to a demonstration.  The police leader shouts at the family to get back inside their home.  There is no confrontation going on, no protesters in sight – the cop just gives them an order to get off their own front porch.  If that happened in my white neighborhood, I’d be tempted to tell the cop to go eff himself, and I would in all likelihood suffer no repercussions for doing so.  For the black family things didn’t work out that way.  They didn’t go inside fast enough, so the police opened up with rubber bullets and tear gas.

That, ladies and gentlemen is white privilege.

White privilege is not about having it easy.  It’s about not having to put up with this kind of bullshit every single day of your life.

A couple of years ago I was having lunch with a student who wanted to talk with me about the career he was just starting.  This young man had all the elements that suggest a promising future – he is smart, well-spoken, attractive, and personable.  He is also black.  During the course of our conversation we began talking about the latest police killing of a black suspect.  He said to me, “I try hard to be calm, and I know I shouldn’t get angry.”  I interrupted him and said, with some incredulity, “why the hell should you not get angry?  You should be furious.”  The question is not whether injustice and abuse should make you angry – the question is what to do about it.  I won’t get started about whether protests work, but what I told him then is what I would tell him today.  Protest, by all means, but organize.  One person acting alone is good, but ineffective.  One person acting in concert with others who share frustrations and convictions is called a movement, and that can be effective. 

It is my hope that people of good will, white and every other color, will be willing to crawl across broken glass to vote against any candidate who in any way, through action or through rhetoric, supports the racial, political, religious, and social fracturing of the country.

CyberJustice Lab

I recently paticipated in a discussion about ODR and Labor Law with the Laboratore de Cyberjustice (based at the University of Toronto). The video of the discussion can be found at this URL: https://www.youtube.com/watch?v=e0CySWfXRtE&feature=youtu.be My comments and the Q&A start at about the 26 minute mark.

I was ODR when ODR wasn’t cool.

The COVID-19 social distance measures have not eliminated the need for guidance and training related to online dispute resolution – in fact, it seems to have intensified the need.  Currently, I am is working on a number of consulting and training projects:

Online Mediation training for the World Bank;

Mediation and ODR training for the Kusamotu & Kusamotu law firm in Lagos, Nigeria;

Online Mediation training with ICFML, with students from Kuwait, Canada, Australia, Brazil, and the USA;

ODR training for mediators with NVMS;

Consulting and training through Cornell University’s Scheinman Institute for union negotiators working online;

Ongoing work with IMI, ICODR, and the ABA related to ODR ethics and standards of practice.

Zoom, Take 3 (and final)

I promise this is the last post on Zoom – the material below was developed by the National Center for State Courts – it pretty much parallels what I wrote earlier, and suggests, in their words, that Zoom, handled correctly, is pretty much “bullet proof.”

The concerns outlined:

Apple pulled Zoom from the Mac Appstore amid privacy concerns – this happened last summer and has been fixed.
Zoom was sending all the data to facebook – it turns out just their iOS (iPhone, iPad) app was using the Facebook development kit to login facebook users. Included in that kit is a “call-home” beacon to facebook. This kit was removed from their app last weekend.

Zoombombing, other people jumping into zoom meetings, etc – this is all people using poor cybersecurity practices. We’ve configured our Zoom by default to have the host control over admitting participants. We encourage hosts to 1) have unique meeting ID links, 2) have meeting passwords, 3) Vet the list of people in the waiting room to make sure no strangers are in.

In all cases so far, its been users that have blasted a public meeting with no waiting room and had the link shared far and wide.

Zoom leaks your email address and profile photo to strangers – this is in a feature that we’ve got turned off for our Zoom installation – doesn’t apply to us [in the courts].

Zoom doesn’t use end to end encryption – true – they use transport encryption, just like the majority of things. Email, web surfing, things we do all the time, use transport encryption and not end-to-end.

Zoom allows malicious links to be sent in chat – again, we’ve configured it so that the host has to admit participants. OCA’s guidance is for the hosts to vet participants in the waiting room. Please don’t allow people that are likely to send malicious links in the chat.

Zoom has zero day flaws in it – there was a zero day published yesterday that outlines an exploit where an attacker can take control of your webcam, mic, and computer as whole. In the technical details, it is mentioned that this is a local attack, meaning that the attacker has to have physical access to the machine – as in he/she has to steal it (or otherwise be in possession of it) in order to exploit it.

Whether or not you feel Zoom is still the best option for us to use for our public and our secure meetings?

OCA is still comfortable (I personally am too). For all meetings, I’d make sure the host is the one governing who can enter. Have a password for that meeting.

For public meetings, I recommend that you only allow the participants in on zoom and use YouTube to webcast to achieve the public part (people can see on YouTube, but can’t speak or do anything).