Cyber security cases can arise for a number of different reasons. These cases are often complex and involve special factors that must be considered by the parties and the mediator assigned to the claim. Some special considerations include the following:

Need for Confidentiality

When a cyber security matter is at issue, digital or confidential information may be involved. It is important that there are strict confidentiality provisions in the mediation agreement. These provisions can prevent the parties from later disclosing information discussed during mediation if the parties do not reach an agreement in mediation.

Mandatory Mediation Clauses

While arbitration clauses are relatively common, mediation clauses are rising in popularity. These clauses may be part of contracts between businesses or vendors and clients. These contracts may state that mediation is required before a case can proceed in court. It may also indicate the mediation agency that will be used or how a mediator will be selected.

Subject Matter Expertise

Data breaches and other cyber security matters are relatively new, so parties may want to use a mediator who has subject matter expertise in this realm. Mediators with backgrounds in cyber security, privacy, technology and litigation may be preferred over others with a general business background.

Lack of Legal Precedent

Many cyber security matters and related legal issues are novel. Taking the case to court may result in establishing a negative precedent that can negatively impact the business in future cases. Rather than risking this possibility, the parties may agree to be bound by the terms of mediation to keep the court from being able to make a decision that impacts them for years to come.