ADR and Mediation

Overview

When a cyber incident leads to legal disputes—whether a data breach class action, a coverage disagreement with an insurer, or a vendor liability claim—litigation is not always the most practical or cost-effective path forward. This course examines how alternative dispute resolution methods, including arbitration and mediation, can provide a more efficient framework for resolving the legal fallout from cyber incidents. Participants will explore the practical mechanics of ADR processes, the circumstances under which they tend to be preferable to court proceedings, and the strategic considerations that inform that choice. The course also addresses how to bridge communication gaps between technical and legal teams during ADR proceedings, ensuring that complex cybersecurity facts are conveyed accurately and persuasively.

What you’ll learn

• ✓Distinguish between arbitration, mediation, and litigation as dispute resolution options in the context of cyber-related legal matters
• ✓Identify the circumstances in which ADR is likely to be a more appropriate path than traditional litigation for resolving cyber incident disputes
• ✓Explain how data breach class actions and cyber insurance policy disputes are commonly handled through ADR processes
• ✓Assess the strategic and cost considerations that should inform an organization's choice of dispute resolution method following a cyber incident
• ✓Communicate technical cybersecurity concepts clearly to legal and ADR professionals during mediation or arbitration proceedings
• ✓Recognize the key roles and responsibilities of legal, technical, and insurance stakeholders within an ADR process

Curriculum

1. 1. Understanding Cyber Insurance: Why Arbitration May Make Sense for your Policy

   In recent years, cyber insurance is facing a hard market. As cyber-attacks and data breaches have grown dramatically in frequency and size, carriers have been forced to narrow their offerings. These limitations put existing and potential cyber insurance customers in difficult positions. As policyholders negotiate policy language, arbitration clauses should be included in this discussion. Arbitration is a form of alternative dispute resolution that provides a streamlined and more cost-effective solution to conflicts that would otherwise result in litigation. Technologists and their counsel should understand the virtues of ADR in resolving disputes over cyber insurance, as well as the key characteristics of cyber insurance itself, as the threats are only expected to grow and the claims to fo

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2. 2. Mediation: The Tool Kit

   Litigating cybersecurity and data breach disputes has proven to be very expensive time and time again. One solution to this problem is alternative dispute resolution (ADR), which can be initiated by the parties or may be compelled by legislation, the courts, or contractual terms. Mediation, like arbitration, is a method of ADR available to parties. Put simply, mediation is a negotiation facilitated by a neutral third party. Unlike arbitration, which resembles a trial in format, mediation does not involve decision-making by a neutral third party. While mediation has existed for a long time, the COVID-19 pandemic restrictions caused its use to rise dramatically, a development that continues to persist. Unlike judicial and arbitral proceedings that may require face-to-face interactions, it is

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3. 3. Why use a Discovery Referee or Special Master in ADR?  

   What are discovery referees and special masters, and why should technologists understand their role in alternative dispute resolution? Discovery referees and special masters are experts that help resolve eDiscovery disputes and streamline the discovery process. While the scope of their involvement and authority differs, technologists may encounter either of these players in dispute resolution. By learning about when to use discovery specialists or special masters, technologists and their counsel can help ensure that e-discovery is conducted in a way that is efficient, cost-effective, and compliant with legal and ethical standards. In this lesson, our instructors discuss how and why courts, arbitrators, and parties increasingly turn to special masters or discovery referees for their exper