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Online Dispute Resolution: Designing new Legal Processes for Cyberspace

Katsh, Ethan (2009) Online Dispute Resolution: Designing new Legal Processes for Cyberspace. In: Proceedings of the WebSci'09: Society On-Line, 18-20 March 2009, Athens, Greece.

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Abstract

There has been considerable debate, during the last ten to fifteen years, about the impact of the Internet on law. The focus of this debate in the legal community has been on legal rules and doctrines, on the development of new rules and the revision of old ones. In both highly publicized areas, such as intellectual property and privacy, and less publicized areas, such as the formation of contracts and the protection of consumers, there have also been court cases that have tried, generally unsuccessfully, to enforce rules, establish standards and change behaviors. The purpose of the proposed paper is to examine how the Web changes not simply legal doctrines but legal processes. Indeed, it is new processes as much as or more than new doctrines that will shape the direction and evolution of a legal order for cyberspace. More specifically, those interested in the impact of information technologies on law need to rethink not only legal rules but those processes that are aimed at resolving disputes. For several decades, it has been recognized that for traditional offline disputes there are benefits for using alternative dispute resolution approaches such as mediation and arbitration in lieu of litigation. There may be an even greater need for such processes as disputes occur online. Such disputes are not only too numerous for traditional courts to handle but courts are not helpful when parties are in different jurisdictions, when quick decisions are needed, or when something other that a win/lose result is desired. Disputes are a byproduct of transactions, of the formation of new and complex relationships, and of interactions among entities in which trust levels are low. As business is conducted online and as people work together and interact online, problems inevitably occur in some percentage of cases. Disputes are not necessarily bad and, indeed, can be a sign of growth, activity and creativity. It is too many disputes that can be a problem or the festering of disputes that need to be addressed but are not, that can be damaging. A highly respected legal scholar, Karl Llewellyn, once wrote that “what, then, is this law business about? It is about the fact that our society is honeycombed with disputes. Disputes actual and potential, disputes to be settled and disputes to be prevented; both appealing to law, both making up the business of law....This doing something about disputes, this doing of it reasonably, is the business of law.” One would, unfortunately, not know this from looking at the legal literature regarding the Web during the last fifteen years. That literature generally assumes that courts and the rulings of judges are still the most relevant elements in the evolution of an online legal regime. As Dean Paul Schiff Berman has recognized, however, “legal scholars have an unfortunate tendency to assume that legal norms, once established simply take effect and constitute a legal regime.” Online dispute resolution involves the use of networked information technologies to expand and improve conflict management resources and expertise. At the heart of all dispute resolution processes are communications processes. Under this view, arbitration, mediation and even litigation can be differentiated by the manner in which communication and information are managed. In arbitration, for example, information is collected by a third party who evaluates it and makes a decision. In mediation, a third party manages the flow of information so that the disputants generate ideas and outcomes that are satisfactory to them. During the last ten years, I have been involved in efforts to establish various kinds of online dispute resolution processes. In 1999, I conducted a pilot project for eBay that led to the development of an online dispute resolution system for buyers and sellers that in the past year handled over thirty million disputes. I participated in the domain name dispute process managed by ICANN and was a member of the committee that was set up to recommend changes in the ICANN uniform dispute resolution policy. Unfortunately, this was not a successful effort. More recently, I have been co-principal investigator with members of our computer science department on two National Science Foundation grants to research the development of online dispute resolution tools. In this effort, we have been working with the National Mediation Board, a federal agency authorized to handle labor disputes in the airline and railroad industries. Additional work, supported by funding from the eBay Foundation, has contributed to the ombudsman program recently established by the U.S. army for returning soldiers. We are only at the beginning of understanding how individuals separated by distance can utilize resources and expertise delivered over a network. Physical spaces have large and established public sectors out of which public law has developed. In the online environment, the public or governmental sphere is not absent but its authority has been diluted. In its place, private agreements have taken on a larger role and it is in this context that processes, largely non-governmental, to handle disputes are developing. This is a change that has received little scholarly attention and is also a change that will affect the how a coherent online justice system is structured.

Item Type:Conference or Workshop Item (Paper)
Uncontrolled Keywords:disputes, dispute resolution, law, legal process, online dispute resolution
Subjects:Web Science Events > Web Science 2009
ID Code:191
Deposited By: W S T Administrator
Deposited On:24 Jan 2009 08:45
Last Modified:25 Oct 2011 16:32

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