Risks of AI leading to breach of your duty of confidentiality. Urgent steps to take with Otter.ai
This section deals with a new and disturbing threat to the mediator's duty of confidentiality as a result of the potentially unknown (to the mediator and parties) intrusion of Otter.ai into Zoom, Google Meet and Microsoft Teams meetings. The problem in general may occur equally with other background Apps introduced by web conferencing platforms.
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Otter.ai (and other similar tools) appear to offer recording and transcription services for online meetings. However, since their use may be hidden from meeting participants (including the hosts) this raises serious concerns as to the duties of confidentiality. Essentially, if activated, Otter.ai will record the meeting, even if the host had not specfically requested a recording to be made, and send a transcription to every person who had been invited into the meeting, whether they attended or not.
Imagine the potential problems for a mediator. If one of the parties is late for the meeting, or fails to turn up at all, he will receive a transcript and recording of all that was said at the meeting, even for the period before the person entered the room, notwithstanding that the mediator may have treated the session, as a result, for example, of the later attendance of the other party, as private to the attending party. More generally, and as part of the effort to generate trust and confidence in the meeting, the mediator may have assured the parties that no meetings will be recorded. That trust will be severely damaged,if not totally destroyed, when the parties receive the recording and transcription
You may think that the mediator can simply refuse to apply Otter.ai. However that cannot be done by the meeting host/mediator but only by the account holder. If the account is held by an organisation the mediator may not be the account holder and thus may not be aware of this background facility and may not be able to disapply Otter.ai even if he knew about it.
It is obviously going to be necessary for mediators to ensure the account holder for the account disables Otter.ai. See attached guidance. The mediator must also raise the issue with all parties ensuring they change the default settings to not record, transcribe and disseminat You might consider how to address this in an invite since the bot could attend without the person.
The big worry for mediators is that Otter.ai is just one of many Apps that web conferencing platforms may offer, with, of course, most yet to be developed. It is an example of why mediators using platforms not developed exclusively for mediation will always be at risk.
We will endeavour to monitor App development as applied to web conferencing but cannot guarantee all such risks are covered.
You will find attached a paper produced by the International Council for Online Dispute Resolution to help mediators in this situation with advice on steps to take by the account holder.