The ADR Provisions of EU Privacy Laws

Kim Taylor, Esq.

Kim Taylor, Esq.

by: Kimberly Taylor, Esq.

Companies doing business globally have a variety of complex issues to deal with, not the least of which is concern about the security of personal data collected from their customers.

In 1995, the European Union issued Directive 95/46/EC, the Data Protection Directive, concerning the protection of individuals with regard to the processing and transfer of personal data.  Thereafter, the U.S. Department of Commerce (DOC), in consultation with the EU, developed the U.S.-EU Safe Harbor Framework.  This, along with the U.S.-Swiss Safe Harbor Framework, is a streamlined process for American companies to comply with the Data Protection Directive. The Framework enables U.S. organizations to transfer personal data from the EU to the U.S. provided the American company certifies with the DOC that it adheres to the Safe Harbor privacy principles. As of December 2013, more than 4,000 companies had certified compliance with the Safe Harbor program.

Despite the Safe Harbor Framework, concerns were raised recently within the EU about data privacy amidst revelations of surveillance of EU citizens’ data by the American government.  The European Commission (EC) undertook a review of the EU-U.S. Safe Harbor scheme to ensure that it adequately served the purpose of preserving EU citizens’ data protection right when that data was transmitted to the United States. Late last year, the EC issued a report concerning the operation of Safe Harbor and offered a number of recommendations to strengthen it.

The EC recommended that companies using the Safe Harbor process to self-certify compliance with the Data Privacy Directive be required to publicly disclose their privacy policies and include a link on their websites to the DOC list of currently certified members of the Safe Harbor. The company must also require its subcontractors to publish the privacy conditions of the terms of those subcontracting agreements. Those privacy policies should set out the extent to which U.S. law permits authorities to collect data under the Safe Harbor. Recognizing that arbitration and mediation are effective means of resolving disputes between consumer and companies, the EC also suggested changes to the already-existing requirement that companies must create a readily available and affordable mechanism for dealing with individual complaints, including a system of alternative dispute resolution (ADR) by an independent third party.

To continue reading about ADR Provisions of EU Privacy Laws, please read the full article from Law.com by clicking here.

Mediation Briefs: Do’s and Don’ts

By Martin Quinn

Martin Quinn

Martin Quinn

Here are some Do’s and Don’ts from a mediator’s perspective to help you prepare your mediation briefs.

Do remember that the mediation session will likely be the last day of your case.  Treat the event with the importance it deserves, and start by preparing an effective, timely brief.

Do submit and exchange your brief at least one week, and preferably two, before the session.  This allows time for opposing counsel to get it to their client.  Particularly if an insurance company is on the other side, it needs at least 10 days to consider and react to the brief — perhaps by increasing its reserves on the case.  Moreover, mediators have a lot to read — help them out by giving the time they need to digest your brief and put in a call to you to discuss the case.

Do set a collaborative tone and don’t insult your opponent.  Fisher and Ury said it all in Getting to Yes:  “Be hard on the issues, but soft on the people.”  Argue the facts and the law firmly and persuasively to show your case to its best advantage.  Also remember, you are trying to reach agreement with these people, not beat them into the ground.  When you want to reach agreement with someone — be it a spouse, child, partner or legal adversary — it doesn’t help to accuse them of fraud, racketeering, dishonesty and bad faith.  Do let the facts and the law speak for themselves — do not hurl ad hominem insults and gratuitous accusations.

Do come clean on any weakness in your case.  If you are strong on liability but shaky on damages, say so in your brief — and then explain how you are going to deal with the challenge.  Nothing will increase your credibility more with the mediator and the other side.  Nothing will torpedo faster any credibility you have than for the mediator to learn about some big weakness in your case only from the other side’s brief.

For more on Mr. Quinn’s Mediation Briefs Do’s and Don’ts, please read the full article from Law.com by clicking here.

Employment Mediation Requires a Unique Touch

Jeffrey Grubman, Esq.

Jeffrey Grubman, Esq.

by Jeffrey Grubman, Esq.

Although the fact patterns of employment cases vary considerably, there is always a common theme. The plaintiffs believe they have been mistreated by their employers, and the employers almost always deny the factual allegations. Consequently, employment mediations tend to be emotionally charged.  At the same time, the cases usually involve a complex body of statutory and case law.  This requires a mediator who can empathize with the employee and employer, make them feel comfortable and engender trust.  At the same time, however, the mediator must understand the applicable law and be able to discuss how it applies to the facts of the case.

Many mediators describe themselves as either facilitative or evaluative. Facilitative mediators provide a forum for communication among the parties and help explore settlement options without expressing opinions or pointing out potential weaknesses in the parties’ cases. Evaluative mediators bring up weaknesses in the parties’ legal cases and perhaps even offer potential appropriate settlement terms.

An effective employment dispute mediator, however, blends the two approaches.  She must be able to listen actively to each side’s concerns and empathize with their situation.  She should also be able to give feedback to both parties regarding potential challenges regarding their case.  Those challenges may relate to legal pitfalls with their case, the stress and potential embarrassment that may be associated with protracted litigation, and the cost and time involved with this type of legal dispute.

Employment mediation also requires a flexible process. Some mediations are most productive when the parties spend the majority of the time in joint session expressing their feelings.  Some attorneys wrongly believe that any direct conflict during the course of a joint session is harmful to the overall process, which is usually not true.  On the other hand, in a case where an employee feels threatened by the employer, it might be best to conduct mediation primarily or entirely in caucus.

To continue learning more about mediating employment disputes, please read the full article from Law.com by clicking here.

Discovery of Social Media Data

Viggo Boserup, Esq.

Viggo Boserup, Esq.

by Viggo Boserup, Esq.

The digital revolution has caused tremendous growth in the volume of documents stored and collected electronically.  It has also caused the creation of new sources of digital data, one of the most significant of which is social media.  As a direct outgrowth of mobile and Web-based technologies providing the basis of interactive communication, individuals and whole communities are able to share, discuss and modify user-generated content.  The result thus far includes sites such as Facebook, LinkedIn, Twitter, Instagram, Snapchat and many others.

More Devices and More Data

A quick look at the statistics shows a surprisingly rapid rate of adoption of technologies allowing greater access to interactive communication. More than 87 percent of Americans own cell phones, with 46 percent owning smartphones.  In July 2011, it was predicted that in five years, smartphones and tablets would reach 1 billion in sales.  Instead, just 18 months later, sales reached 2.2 billion.  These devices are capable of holding vast amounts of data, including text messages concerning competition, products, colleagues, confidential documents, GPS data and the like.  The billions of devices constitute a vast source of discoverable evidence.  In response to the proliferation of devices, employers have increasingly permitted employees to bring their own devices (“BYOD”) to use at work.  The result has been that employees now work at home and other places far removed from the office.  Thus, the employer has lost some degree of control over the creation and transmission of company data.

Different but Discoverable

While social media data has vastly increased, the very nature of social media itself often serves as a deterrent to counsel as they consider potential sources of electronically stored information (“ESI”) for purposes of discovery.  Social media is still frequently viewed as a mysterious area that counsel rarely use, much less understand.  The result is often that counsel are reluctant to engage in discovery in social media.  The normal obstacles include the technical barrier, concerns over privacy and the rapidly changing nature of social media, with new sites routinely popping up on the social media landscape.  The fact is, however, that it can be discoverable under the same rules governing other discovery—if the information being sought is reasonably calculated to lead to the discovery of admissible evidence.

To learn more about discovery of social media data, please read the full article from Law.com by clicking here.