Electronic Dispute Resolution<BR> NCAIR Conference Washington, D.C.
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A National Center for Automated Information Research (NCAIR) Conference Presentation Washington, DC May 22, 1996 May 1996 |
Legal framework for dispute resolution
Conventional methods for managing information
Potential uses of information technology
The oral tradition and automation
Interest disputes and problem solving
Introduction
This paper serves as the convening document of a conference on Electronic Dispute Resolution sponsored by NCAIR, and held in Washington on May 22, 1996. The purpose of the conference is to review the experience during the pilot Virtual Magistrate project, sponsored by NCAIR, and, more broadly, to explore the possibilities for alternative dispute resolution techniques conducted through new computer network technologies based on the Internet's open, distributed architecture.During the day, conferees will consider the place of private dispute resolution and legal systems, the traditional distinctions among court litigation, arbitration, mediation, negotiation, and other "soft" forms of decisionmaking; the suitability of network-based forums for non-network disputes; subject matter and personal jurisdiction of electronic dispute resolution forums; and enforcement of EDR decisions; and incentives for disputants to refer their disputes.
History
Private dispute resolution is very old in the western legal tradition. In the early stages of development of the English legal system, public institutions were not distinguished very clearly from private institutions; not only the local lord but also the king exercised property-based power as a landlord as much as he exercised public power based on the law. So in one sense, the local lord's court was not unlike America on Line's internal dispute desk, specializing in resolving disputes over the application of rules of the road issued by the property owner. In addition to dispute-resolving power derived from control of property, which is, after all, the most primitive form of sovereignty, there also were early examples of consensual jurisdiction more like modern arbitration. [examples from and the whole earth was of one language]Both property-based and consensual dispute resolution were transplanted to the new world. The proprietary charters of William Penn, the Virginia Company, and Cecil Calvert, Lord Baltimore, all contain provisions giving the proprietor the power to establish local courts, subjected mainly to the limitation that certain more serious cases could be transferred out of the local, proprietary, courts to the royal courts in England. Statutes enacted in Pennsylvania in 1705 and 1810 provided for arbitration of matters pending in court. 1
Reference to arbitration under judicial supervision 2 became common in England beginning with the reign of Charles II (1660-1685). 3 Finality of awards was strengthened in 1698 when a statute was enacted providing for punishment by contempt of a party refusing to comply with an award entered in arbitration under a voluntary submission. 4
The use of arbitration was favored especially in two types of cases which were thought to be unsuitable for judicial resolution: family conflicts and commercial disputes. Commercial disputes frequently involved complex accounting issues for which special skills were needed. Equity pleading was slow and too complex for speedy resolution of these disputes. 5 At the same time, the attractiveness of arbitration as an alternative to common law resolution of disputes was increased by the simultaneous development of more detailed and restrictive rules of procedure and evidence for the judicial system. 6 Both the Chancery and Privy Council 7 organized arbitration commissions of merchants to deal with merchants' cases. 8
The growth of international trade stimulated interest in the Law Merchant as a body of substantive law and of commercial or consular courts as ways of resolving international disputes poorly suited for local courts. While consular courts were governmental in theory, in fact, they were usually controlled by commercial interests.
More or less independently, a body of commercial law developed in fair courts. Annual fairs took place in various places on the continent of Europe, attracting traders from Africa, Russia, and the Middle East as well as Europe. Each fair had a dispute resolution body that heard commercial disputes among the participating merchants. While the crown might appoint a judge to guide the proceedings, the juries consisted of merchants participating the that particular fair. 9
By the late sixteenth and early seventeenth centuries, when national sovereigns began to encroach on the traditional Law Merchant, "the Law Merchant governed a special class of people (merchants) in special places (fairs, markets, and sea ports). It was distinct from local, feudal, royal, and ecclesiastical law. Its special characteristics were that (1) it was transnational; (2) its principal source was mercantile customs; (3) it was administered not by professional judges but by merchants themselves; (4) its procedure was speedy and informal; and (5) it stressed equity, in the mediaeval sense of fairness, as an overriding principle." 10
Thereafter, the rise of nationalism, competition between different kinds of courts for legal business, the tendency of traders to settle down and conduct their affairs from a particular place rather than traveling from fair to fair, and the incorporation of certain substantive principles of the Law Merchant into municipal law, led to the diminished importance of the Law Merchant as a separate legal system. 11 Nevertheless, as Mark Garavaglia has explained, the Law Merchant survives in commercial law under the guidance of international arbitration, commercial arbitration, and the Uniform Commercial Code. 12
Thus, until the seventeenth century, the Law Merchant was an independent legal system with its own normative rules, its own institutions, and its own coercive measures. After that time, it lost the latter two features, but retained its own normative rules. 13
At various stages through American history, dissatisfaction with the regular courts and other aspects of the general legal system have led to various proposals to privatize legal functions. From the earliest stirring of collective bargaining, performers proposed various scheme of arbitration and conciliation to resolve labor disputes. While these mechanism involve interest disputes and therefore were proposed as rulemaking, more than as adjudicatory functions, the distinction between rulemaking and adjudication was not then well recognized at any level of dispute resolution. By the 1920s, commercial interests had become sufficiently interested in arbitration as a private means for resolving commercial law disputes that the American Arbitration Association was established. During the same era, the United States Arbitration Act 14 was first enacted to overcome traditional judicial reluctance to enforce private arbitration decisions.
And of course, since the 1970s, alternative dispute resolution has been a popular cause in the United States, driven in part by insurance-industry and manufacturer concern about punitive damages and products liability in medical malpractice suits, but also by a general dissatisfaction with expenses and delays of traditional civil litigation.
The Virtual Magistrate pilot project 15 was initiated in discussions held on October 25, 1995, and offers arbitration for rapid, interim resolution of disputes involving (1) users of online systems, (2) those who claim to be harmed by wrongful messages, postings, or files and (3) system operators (to the extent that complaints or demands for remedies are directed at system operators). Arbitration services are available for computer networks anywhere in the world as long as relevant parties agree to participate. The Virtual Magistrate system announced that it was open for business on March 4, 1996. The dominant problem has been obtaining cases.
The Virtual Magistrate and other efforts to develop or articulate substantive legal rules for Cyberspace or for applying them is only the most recent in a long tradition of the Law accommodating private legal systems and doctrines.
Modes of dispute resolution
Disputes usefully can be classified as interest disputes and rights disputes. Resolution of interest disputes requires the exercise of a rulemaking function: adopting and articulating norms of conduct that have not theretofore existed. Collective bargaining, legislating, and contract drafting are examples of this rulemaking function.Rights disputes involve claims under existing norms and usually require the exercise of adjudicatory power to resolve them. Lawsuits, contractual arbitration, conciliation of child custody disputes are examples of adjudicatory power being used to resolve rights disputes. Arbitration under collective bargaining agreements is the predominant form of resolving rights disputes in unionized workplaces. A claim of breach of contract based on the collective bargaining agreement must be resolved through arbitration rather than in court. 16
There are a variety of techniques of dispute resolution, some of which are more suitable for rights disputes and others more suitable for interest disputes, although they are not strictly associated with one or the other type of disputes.
Arbitration is private adjudication, in which a nongovernmental neutral party hears presentations by the disputants and makes a decision that is more or less legally binding on them. Traditionally, arbitrators drew their power from contracts, although court-annexed arbitration is growing in popularity, in which case an arbitrator draws power from a court order or rule. Arbitration agreements may declare in advance party willingness to arbitrate a class of disputes that may arise in the future (collectively bargained arbitration is an example). Or, they may be entered into after a particular dispute has arisen, and apply only to that dispute. An agreement settling a trademark infringement lawsuit by providing for arbitration of damages is an example.
Negotiation is the most common form of dispute resolution. Most disputes are resolved this way without ever appearing in the public records of court systems, and even those disputes that do make it to the court dockets mostly are resolved this way: 95% never make it to trial. Negotiation is a two party process. The disputants themselves communicate with each other seeking to find common ground and to persuade the other of the advantage of consensual settlement rather than resort to other legal or coercive processes.
Mediation is an adjunct to negotiation. A mediator, unlike an arbitrator, has no power to decide, but only has the power to assist the disputing parties to negotiate a resolution. Mediators facilitate communication between disputants, help them discover mutual interests, and help change perceptions of the costs of failing to settle as an inducement to settle.
Some arbitration processes include mediation as an initial step. When judges seek to promote settlement, they act in a mediation function. When arbitrators do the same the process is sometimes called med- arb. Increasingly, private mediation services are being established, especially in the family dispute area.
Fact-finding looks like arbitration except that the decision is not binding. Some mediation processes, especially in publicly sensitive labor disputes, are followed by a fact-finding process.
A reliable definition of ombudsman is elusive. Some public agencies in corporations in the United States identify an ombudsman to serve as a kind of high level complaint desk, with the power to receive disputes and complaints, at least an informal power to investigate, and the power to persuade or induce changes in position by the parties to the dispute through public embarrassment. 17 In Norway, the ombudsman function is more highly developed and formalized. It is perhaps the most important part of a review process for administrative agency decisions, taking the place of what would be judicial review in the United States. Indeed, one recent ombudsman was a member of the Norwegian Supreme Court who resigned from the Supreme Court to take the ombudsman position -- an indicator of the relative prestige of the two institutions. It is almost unheard of for a governmental agency to decline to accept recommendations from the Norwegian ombudsman, and the public perceives the function as an important means of democratic control over government.
In the United States a variety of consumer dispute resolution agents might be classified as ombudsmen, though they mostly are attached to media rather than governments. Many local television stations have reporters assigned to investigate and report on questionable practices that victimize consumers. Many newspapers have similar such functions. The Better Business Bureau and certain other industry self- policing initiatives are intended to perform a similar function. For all of these institutions, like ombudsmen, the power over disputes depends on public opinion or, sometimes on the opinion of policy level persons in large institutions who otherwise do not know about disputes being handled at lower levels.
Legal framework for dispute resolution
Legal analysis of private dispute resolution is based on the legal framework for public dispute resolution. For a court or other adjudicatory institution to resolve a dispute in a binding way, it must have subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction means that the decisionmaker has been assigned responsibility for that class of dispute. Personal jurisdiction means that the parties to be bound by the decision have some contact with the government giving power to the tribunal and that they have notice of the proceeding sufficient to allow them to participate if they want. In addition, public tribunals have the power to resolve disputes only when they follow relatively formal procedures prescribed for them by the sources of their power, usually codified in rules of procedure and evidence. When subject matter and personal jurisdiction and procedural compliance exists, decisions of public adjudicatory tribunals are entitled to be enforced not only by the sovereign that created the tribunal, but also by other sovereigns. The obligation to enforce such "foreign" judgments arises under the Full Faith and Credit Clause of the United States Constitution when the both courts are in the United States, and also under a "softer" similar doctrine of private international law called comity. Comity doctrines have been enacted into state law in about half the states under the Uniform Recognition of Foreign Money Judgments Act. 18For private dispute resolution tribunals, the legal framework is more varied, but ironically more predictable in some respects. Ombudsmen recommendations, mediation processes, and fact-finding decisions do not have binding legal effect, and therefore no legal framework is necessary for them, except perhaps to provide for the establishment and financing of the processes. Arbitration, on the other hand, does enjoy a well understood legal framework. The power of arbitrators, and the effect of arbitration awards, is a matter of contract. Virtually every aspect of arbitration is definable in an arbitration agreement. An arbitration agreement can provide for one or multiple arbitrators, can identify the arbitrator by name or define a pool from which arbitrators are to be selected, provide for rules of evidence before the arbitrator, allow or preclude discovery, define the nature of pleading, or eliminate written presentations altogether, and set time limits for party presentations and arbitral decisions.
To make it easier to write enforceable and complete arbitration agreements, a number of private institutions, notably including the American Arbitration Association, provide standard short forms and publish detailed arbitration rules that can be incorporated by reference into one or two sentence arbitration agreements. Under the United States Arbitration Act, also known as the Federal Arbitration Act, 19 federal courts are given jurisdiction and are obligated to enforce arbitration agreements affecting interstate commerce. The Uniform Arbitration Act, adopted in some form in virtually every state provides a similar mandate to state courts. Under these statutes, courts may refuse to enforce arbitration awards only if the award is tainted by fraud, gross irregularity of procedure, or if the arbitrator acted without power conferred by the arbitration agreement. In addition to expedited procedure under these arbitration statutes, parties seeking to enforce an arbitration award also can file a common law breach of contract action because a contract to permit to arbitration also is a contract to obey the award resulting from arbitration, impliedly, if not expressly,.
Internationally, virtually every country involved in international trade is a signatory to the "New York Convention" providing for the enforcement of international arbitration agreements. Generally following the same principles as the Federal Arbitration Act, it provides for greater certainty of enforcement of an arbitration award involving an international dispute. 20
Certainty of enforcement is greater for international arbitration than for national judgments to be enforced internationally. The United States is not signatory to any comprehensive treaty for enforcement of civil judgments.
The potential for electronic dispute resolution has been realized by a growing number of federal administrative agencies. The Department of Transportation has made a major commitment by establishing a paperless docket for its rulemaking and adjudicatory procedures in all of the operating agencies. 21 The Nuclear Regulatory Commission similarly has launched a number of experiments, including the use of the World Wide Web for notice and comment rulemaking. 22 I have sketched the possibilities for electronic dispute resolution in the administrative agency context in other articles. 23
Conventional methods for managing information
Traditionally, virtually all forms of dispute resolution relied primarily on face to face interaction. Still, the central event of most dispute resolution is a hearing or conference. The neutral presides and allows the parties to present their positions orally. Information recorded and transferred on paper, however, has come to dominate much dispute resolution. Even in the simplest arbitration or small claims court procedure, written materials must be submitted before the hearing. In modern court litigation, the paper records of pleading, motion practice, discovery, and pretrial documentation fill entire file cabinets. Some commentators have observed that court litigation is shifting from a single-event oral tradition to a multiple-event, paper-based equity tradition. 24 Alternative dispute resolution also has become paper intensive. Indeed, some commercial arbitration has become nearly indistinguishable from litigation in court in terms of the amount of paper involved at pretrial stages.To some limited extent, these traditional methods have been supplemented by telephone contact, although telephonic hearings are uncommon. 25 Mostly, however telephones are used to schedule hearings and to clarify specific and relatively narrow questions about facts or legal positions rather than as substitutes for a face to face hearing. 26
Nevertheless, the hearing or trial remains the focal point of dispute resolution, and any strategy for using information technology for dispute resolution must address the hearing process. At the hearing or conference, parties typically make presentations summarizing their positions and demands. In arbitration and fact finding proceedings they may present witnesses, in which case they use traditional techniques of direct and cross examination. At arbitration hearings also, arbitrators ask questions aimed at clarifying positions of the parties and their views on what criteria the arbitrator should use to decide the case. Most of the time at mediation conferences is spent with the mediator asking questions of the participants, seeking to clarify their interests, and exploring their reactions to propositions the mediator articulates aimed at clarifying his understanding of the dispute and seeking to identify common ground. Witnesses almost never are presented in mediation conferences, and long formal presentations by disputants are unusual. Fact finding proceedings are likely to resemble arbitration in their procedures and methods. Conciliation is indistinguishable from mediation as already noted. Ombudsmen procedures are less likely to involve face to face contact or more than one exchange of written submissions.
Arbitration hearings may be held in conference rooms or special hearing rooms. Mediation conferences, typically are held in ordinary conference rooms.
Potential uses of information technology
Information technology is represented by desktop computers, the Internet and other wide area networking techniques, email, electronic discussion groups, and electronic publishing through the World Wide Web or otherwise. These technologies change communication and information management in four ways, relevant to dispute resolution. They make it possible for anyone to transmit significant quantities of information to anyone else over virtually any distance virtually instantaneously. They make it possible for disputants to communicate interactively without being present in the same place. They make it possible for participants to communicate asynchronously -- without being connected to the system at the same time. They facilitate the storage, retrieval, review, and reuse of existing information.The first and fourth techniques offer significant advantages when information technology is applied to processes that involve significant amounts of paper. For example, in the SEC's EDGAR system, technology permits millions of pages of corporate securities filing to be submitted electronically and used by the SEC and others in electronic form, reducing storage and courier costs for paper and labor costs for search and retrieval photocopying. For the same reasons, information technology is widely used by litigators to manage discovery documents in major civil cases.
The second and third features of information technology permit the automation of hearings and conferences, albeit at cost. Electronic mail is widely used to replace certain face to face oral interaction and to replace or supplement telephone contact, which itself is a substitute for face to face or written interaction. The use of electronic conferencing is growing rapidly in popularity as a replacement for certain kinds of face to face telephonic interaction, aided considerably by the Counsel Connect experience. The World Wide Web has added to the flexibility of electronic publishing so that it overlaps electronic conferencing as a medium for interactivity when significant amounts of preexisting information need to be organized and examined.
But information technology as it now is deployed is limited to textual means of communication, and static images such as charts and diagrams, with limited amounts of audio supplementation
These limitations mean that an electronic hearing or conference is like substituting written communication for oral and nonverbal communication, with the advantage that the communication is interactive and almost instantaneous.
In the long run, video conferencing and the exchange of video files will expand the power of electronic hearings and conferences, permitting oral and nonverbal messages to be sent and received. But the processing power, communications bandwidths, and storage requirements for all forms of full motion video are about two orders of magnitude greater than those required for the widely available text and static image based methods.
Even without video conferencing and file exchange, the advantages of information technology are considerable. First, the new technologies, especially the World Wide Web, make it easy for potential participants to find the starting point for service. They easily may be directed to the URL that is the entry point for the Virtual Magistrate system. As the system is made public, it is being picked up by World Wide Web finding aids like Altavista, Lycos and Webcrawler making it much more likely that a potential disputants would encounter it when passing by virtually.
Second, it is easier for disputant to submit a dispute. She need not go to the office of the AAA or a lawyer, but merely need fill out the Web form or send an email message. Delays associated with waiting for paper forms to be received and processed are eliminated in steps of registering a complaint, appointing a decisonmaker, and serving other parties with the complaint.
The docket is visible to participants, changes to it are immediately available, and the full contents of all materials are directly available from the docket itself. No telephonic or written face to face request is necessary for documents. At no step in the process need anyone play telephone tag.
The techniques used for composing more reflective or complex documents are the same as those used for conventional methods of dispute resolution: word processing.
An archival record of arbitration awards and of the filings easily available to the public participants in other cases without the need for any investment of additional labor or capital. The system manager simply deactivates user authentication in the docket for a particular case once it is completed, making it public. On the other hand, records for a specific case can be sealed, simply retaining the requirement for user authentication step.
There are no travel expenses or conference room rental expenses for arbitrator or participants. Time required to participate is less for the filing docket-checking and hearing stages although not for document preparation and review.
But there also are limitations, some obvious, as with respect to oral proceedings, others not so obvious. In January, 1996, the author of this paper was in the position of having to organize make up classes for two law school classes canceled because of a blizzard in Philadelphia. For one of the classes, an upper class computer law course with enrollment of about twelve students, the author arranged a "virtual makeup," in which he and the students participated through an "electronic study group," using Internet newsgroup and email applications. That makeup class was successful. All of the students participated at least once, the quality of student analysis was as high or higher than that typically observed in the classroom, and the instructor was able to present hypothetical questions to specific students. The commitment of time by students and instructor, however, was asymmetrical. The instructor invested two to three hours to make up a 50 minute class. No student invested more than 5 or 10 minutes in the makeup (as opposed to preparation, which was no different for the makeup than it would have been for the regular class). Because of the asymmetry, the author decided not to organize virtual makeup for his 115-student first year class in Civil Procedure.
Is dispute resolution more like the Computer Law class or more like the Civil Procedure class? Application of information technology to small-case arbitration, such as that employed in the Virtual Magistrate project, probably does not involve significant asymmetry of costs, but more complex disputes may.
The oral tradition and automation
Most of the best thinking about the relationship between law and information technology has emphasized digital technology's fluidity, compared with print's fixity. 27 But much dispute resolution is oral. The parties and the decisionmaker talk about the dispute rather than exchanging written documents. Automation strategies aimed at replacing paper with electronic formats may not be pertinent to these styles of dispute resolution.Oral dispute resolution has a strong pedigree. Today, small claims are resolved with little pleading, no discovery, and no written opinion in courts "not of record," in virtually every American state. Indeed, in many state court systems, few trial courts routinely prepare written opinions. Often, written opinions are prepared only when appeals are filed.
In England well into the 17th Century, most trial courts, including those "of record," worked from written pleadings but authorized no discovery and produced no written opinion. The pleadings served as the agenda for an oral trial, followed by oral jury deliberations and a simple binary verdict. Even the pleadings were abbreviated in the earliest history of English litigation. The clerk did the writing, and the clerk could write only so much. 28 His function was to memorialize what the court decided so that the dispute between those parties could be brought to an end. In other words the crucial work product was the judgment, and the importance of the judgment was its preclusive -- not to say its precedential -- effect.
Electronic dispute resolution strategies must pay attention to the oral tradition. The author of this paper and the Villanova Center for Information Law and Policy presently are involved in developing an Internet-based legal information infrastructure for Bosnia. This effort raises some of the same issues raised by NCAIR's inquiry into electronic dispute resolution. In Bosnia as well as in cyberspace, a crucial question is whether electronic communication can substitute for paper and face to face communication in dispute resolution traditionally performed by courts. In Bosnia as well as in those parts of the NCAIR project focused on mediation, a crucial question is the degree to which information technology has anything to contribute to predominately oral modes of dispute resolution.
Of course, even oral traditions usually record something. When information technology is used to create the space for dispute resolution, at least the early clerk's function can be automated; technology can record and communicate the decision. But information technology also must bear a heavier burden, and that is to replace the oral channels for case presentation by the opposing sides. Whether this is acceptable to the disputants depends in large part on how easy it is for them to use the readily available computer input devices as compared with simply talking about their case.
Interest disputes and problem solving
Information technology can help resolve interest disputes as well as rights disputes. Just as the modes of dispute resolution are not limited to arbitration, but also include mediation and ombudsmen, so also the types of disputes include rulemaking as well as rule application.Discussions of cyberspace governance frequently include discussion of the need for specialized substantive rules for cyberspace. According to one view, it is not enough to have specialized adjudicatory mechanism unless there also is specialized law for them to apply. One way to achieve this result is to empower adjudicatory decisionmakers, probably arbitrators, with broad discretion to make up the rules as they go along, roughly analogous to the power of arbitrators under collective bargaining agreements to apply "the law of the shop" as well as the explicit language of the collective bargaining agreement. 29 Another possibility of course, is to separate the judging from the law making functions, and also to establish law making institutions. An early gesture in this direction is the restatement of cyberspace project sponsored by Counsel Connect. The author of this paper is facilitating the development of "restatements" on discrete areas of conduct in which new information technologies present special problems, including caching and copyright, trademarks and domain names, unsolicited communication, contract formation, and intentional injury. The purpose is to develop statements of community practice that can be applied by arbitrators or regular courts. Obviously, the restatement project has no law making power in the sense that a legislature does. Nevertheless, there are many areas of law in which trade practice and community custom come into play as standards of legal conduct. 30
Internet-based information technology can transform rulemaking, but present applications also have serious limitations. In the summer of 1995, the author of this paper agreed to facilitate one of three electronic "town meetings," sponsored by the White House. The town meetings were organized through Internet newsgroups and linked email lists. Several hundred people from all walks of life participated, demonstrating the pervasiveness of the Internet as a mechanism for involving members of the public in governmental decisionmaking. In that respect, the project was a success.
In other respects, however, the project indicated the need for further work to refine concepts of electronic discussion and the tools for facilitating such discussions when they are aimed at governmental decisionmaking -- as opposed to a general discussion without any intended concrete results. One problem was significant transaction costs for the facilitator in reading all of the postings. It took longer to read the electronic postings than it would have taken to read a collection of hard copy comments because of the overhead of having to open each message and then to close it. Second, the signal to noise ratio was low. Most of the comments were not pertinent to the subject, and many were emotional diatribes bordering on the pathological. Third, existing email and newsreader tools made it too difficult cross reference other comments and materials, thus missing many of the benefits of electronic modes of interaction. Now, of course, Netscape browsers automatically format recognized URLs so that one can point and click on a URL within an email message or newsgroup posting and go directly to the referenced resource. Finally, there was no easy method for sorting and reorganizing the postings, as one regularly does with paper records to synthesize comments on legislative proposals and notices of proposed rulemaking.
The impression of this was that pure town meeting governance is not feasible for significant issues in modern society, but that the Internet has great potential as a channel for public participation as long as tools can be improved to permit appropriate intermediation and filtering.
In developing better tools for handling interest disputes, one really begins to think about on-line dispute resolution as a broad mechanism for facilitating human collaboration of all kinds.
What lies ahead, on May 22
Participants in the May 22 conference should think about the potential of information technology to improve dispute resolution from four different. The first and narrowest, but most concrete, perspective is that associated with the review of the Virtual Magistrate project itself.The second perspective broadens the framework of inquiry to include traditional types of dispute resolution other than arbitration, specifically mediation and ombudsmen. In this session participants can begin to consider the adaptability of the information technologies deployed in the Virtual Magistrate system.
The third perspective asks participants to escape the bounds of tradition, both traditional categories of dispute resolution, and current information technology applications. Suppose we could mold the dispute resolution process differently because new information technologies relieve old constraints? Suppose we could redesign information technology applications to meet the needs of dispute resolution better? What designs would we envision?
Merely designing a good dispute resolution system does not guarantee that anyone will use it for real disputes. The fourth perspective confronts participants with some hard questions from the real world. How should potential disputants be informed about new dispute resolution possibilities? How can their skepticism be overcome? What risks must be explained and mitigated, from the disputant perspective. How can opposition from existing and more traditional institutions be handled most effectively?
From these shifting perspectives, participants in the May 22 conference should consider at least the following issues:
1. How can electronic dispute resolution achieve the same creditability for neutrality and legal effect as conventional methods?
2. What assumptions are warranted about participant access to necessary technologies? Presumably Web access is available to anyone who has access to a PC and modem.
3. When will the world be ready for full motion video?
4. What role should institutions such as AAA, public libraries, and the bar play? They all can facilitate access technologically and psychologically.
5. How well do the techniques used for the Virtual Magistrate system scale?
6. What risks should drive privacy and authentication techniques?
7. What reliability concerns must be addressed?
8. Is a competitive market for electronic dispute resolution services a good thing or a bad thing?
9. What risks should we be willing to take with ambitious arbitration agreement theories such as those provided in form subscription agreements?
10. What degree of human intervention is tolerable economically, to do things like persuade third parties to participate?
11. What are the special problems in extending information technology adapted for resolution of cyberspace disputes to resolve disputes arising outside cyberspace? One obvious possibility is that disputants are less likely to have their own access to the requisite technology and therefore may be more dependent on intermediaries such as public libraries, the AAA, and suitably equipped members of the bar.
12. How do we adapt adjudicatory tools, such as those deployed for the Virtual Magistrate system, to "softer" forms of dispute resolution, such as mediation?
13. What strategies for interest dispute resolution accommodate open systems rather than representing closed, proprietary approaches?
What holds disputants back from participating? What can be done to encourage participation?
After May 1, you can access this paper and other papers prepared for the May 22 conference at http://www.law.vill.edu/ncair/disres/
Footnotes
1 Act of 1705, ch. 150, 1 Pa. Laws (Sm. I) 49; Act of March 20, 1810, ch. 3219, 5 Pa. Laws (Sm. I) 131 (current version at 42 Pa. Cons. Stat. Ann. § 7362 (Purdon 1982).
2 . Arbitration in England evolved as a part of equity procedure in connection with the mode of taking evidence out of the court's presence before trial. It gradually developed an independent existence. See J. Dawson, A History of Lay Judges 145-72 (1960). Equity, unlike the common law courts, was centralized in London. Accordingly, it was desirable to find means of gathering factual proof without forcing non party witnesses to come to London. Moreover, only two judges sat in Chancery: the Chancellor himself and the Master of the Rolls. Id. at 171. Using written interrogatories framed by the parties, lay citizens were commissioned to conduct secret depositions of witnesses. The evidence thus obtained formed proof upon which the case could be decided. Id. at 153-54. As the caseload increased, chancellors found it natural to build on the extensive system of lay commissioners actually to resolve the cases in which they were to hear evidence. Id. at 153-64. Such decisions by nonjudges amounted to arbitration. By the middle of the sixteenth century, it was fairly common to commission laypersons to hear and end cases in this manner, by arbitration. Id. at 164. Typically, if the referees could not resolve a case, they were to report their proceedings and opinions to the Chancellor. However, it was also common for the Chancellor to compel attendance by the parties at the arbitration proceedings and to induce them to accept the arbitration awards by imposing substantial bonds which would be forfeited in the event of noncompliance. Id. at 165.
3 . Kyd on Awards 4, 21 (1808) (asserting that Enligh arbitration originated in the Code of Justinian).
4 . Id. at 21, 9 & 10 William III c.15 S.1. Vynior's Case, 4 Eng.Rep. 302 (1609) had undermined the force of arbitration awards by expanding the authority of common law courts to reconsider the merits of the underlying dispute and my treating arbitration agreements as revocable.
5 . Id. at 166-68. Equity procedure frequently involved multiple hearings and consideration of evidence separately with respect to each pleading. See C. Langdell, Equity Pleading at 27-50 (1883) (contrasting equity and common law pleading).
6 . Compare Kyd on Awards at 22-23 with Kyd at 21.
7 . The Privy Council was the descendant of the medieval King's Council. By the time of the Restoration, it exercised appellate jurisdiction over courts in the Channel Islands, the American colonies, and in India. In addition, it had powers to enforce treaty privileges. Thus it had special concern with merchants involved in foreign trade. T. Plucknett, A Concise History of the Common Law 205-06 (1956). Authority over appeals from the equity courts had passed to the House of Lords shortly after the Restoration. Id. at 202.
8 . J. Dawson, A History of Lay Judges 167-68 (1960).
9 Mark Garavaglia, In Search of the Proper Law in Trans National Commercial Disputes, 12 N.Y.L.S. Ch. J. Int'l & Comp. L. 29, nn. 31-35 (1991) (describing fair courts).
10 Garavaglia at n. 10 (citing Berman & Kaufman, The Law of International Commercial Transactions (Lex Mercatoria) 19 Harv. Int'l L. J. 221, 274-77 (1978)). But see De Ly at 17 (expressing doubt on whether Law Merchant ever was completely separate from national legal systems).
11 Garavaglia at nn. 39-47. De Ly at 17 (absorption of Law Merchant by common law dates to 1756 when Chief Justice Mansfield began to qualify trade custom as legal rules applicable to all citizens).
12 Garavaglia at nn. 48-125 (international arbitration under unidroit and unicitral rules); id. at nn. 126-247 (commercial arbitration in English law); id. at 249-290 (concepts of Law Merchant in American commercial law, especially under the federal common law authorized by Swift v. Tyson); id. at 291-343 (emphasis on trade usages and regular practices in Uniform Commercial Code); id. at nn. 344-382 (American attitudes toward international commercial arbitration, emphasizing Sherk v. Alberto-Culver Co., 417 U.S. 506 (1974) deferring American securities law claim to international arbitration); Parsons Whittemore Overseas Co. v. Societe Generale, 508 F.2d 969 (2d Cir. 1974) (rejecting public policy challenge to international arbitration decision)).
13 Mr. Garavaglia's work does not make it entirely clear whether the fair courts imposed their own sanctions or relied upon external legal institutions to enforce their judgments. See generally Garavaglia at nn. 24-38 (describing fair courts and state facilitation of fair court proceedings).
14 9 U.S.C. § 1 (1992).
15 http://vmag.law.vill.edu:8080/
16 Steelworkers Trilogy (Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); and Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960) (all emphasizing the deference owed to collectively bargained arbitration by federal courts presented with breach of contract claims under collective bargaining agreements).
17 See Jeffrey S. Kahana, Reevaluating the Nursing Home Ombudsman's Role With a View Toward Expanding the Concept Of Dispute Resolution, 1994 J. Disp. Resol. 217.
18 See Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 359 (10th Cir. 1996) (employing comity doctrine in state that had not enacted Foreign Money Judgments Recognition Act; Australian judgment barred state common-law claims).
19 9 U.S.C. § § 1-16 (1992).
20 See Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 (1974) (applying New York Convention and explaining how it improved predictability).
21 See. Henry H. Perritt, Jr., Electronic Dockets: Use of Information Technology in Rulemaking and Adjudication - Report to the Administrative Conference of the United States (October 19, 1995), http://www.law.vill.edu/chron/articles/electronic_dockets/acuscut.htm .
22 Perritt Report sec. IV(B).
23 Henry H. Perritt, Jr., The Electronic Agency and the Traditional Paradigms of Administrative Law 44 ADMIN.L.REV. 79 (1992); PUBLIC INFORMATION IN THE NATIONAL INFORMATION INFRASTRUCTURE, Report to the Regulatory Information Service Center, General Services Administration, and to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, May 20, 1994, http://www.law.vill.edu/Fed-Agency/OMB/pub.info.NII/ombtoc.htm
24 Richard L. Marcus, Completing Equity's Conquest? Reflections on the Future of Trial Under the Federal Rules of Civil Procedure, 50 U. Pitt. L. Rev. 725 (1989).
25 A WESTLAW search on 15 March turned up 1057 federal and state cases referring to telephonic hearings, in administrative, criminal, and civil contexts. See, e.g. Williams v. Office of Personnel Management, 70 F.3d 129 (Fed. Cir. 1995) (rejecting challenges to administrative agency determination based on telephone hearing); Lee v. Pfeifer, 916 F.Supp. 501, 503 (D.Md. 1996) (telephonic hearing, recorded on audio tape, regarding removal jurisdiction); State v. Clarke, 1996 WL 45199, *2 (Neb. Ct. App. Feb. 6, 1996) (two telephonic hearings on petition for mandamus).
26 But see United States v. Contreras, 63 F.3d 852, 856 (9th Cir. 1995) (scrutinizing telephonic hearing substituted for in-person deportation hearing, but finding no due process violation).
27 See e.g. M. Ethan Katsh, LAW IN A DIGITAL WORLD (1995); M. Ethan Katsh, THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW (1989).
28 See generally M. T. Clanchy, FROM MEMORY TO WRITTEN RECORDL ENGLAND 1066-1307 at 64-65 (2d ed. 1993) (describing role of clerk in inquests).
29 "The labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law--the practices of the industry and the shop---is equally a part of the collective bargaining agreement although not expressed in it. The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment." Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82 (1960).
30 See generally Marx & Co., Inc v. Diners' Club, Inc., 550 F.2d
505, 509 (2d Cir. 1977) (general rule is to admit evidence of trade custom to
assist in construing contracts, but testimony of expert witness did not
qualify); Doyle v. White Metal Rolling and Stamping Corporation, 618 N.E.2d 909,
919 (Ill. Ct. App. 1993) (reviewing standards for admissibility of industry statements of practice in products liability cases).
Biography
Professor Henry H. Perritt, Jr., directs Chicago-Kent's Program in Financial Services Law. He served as Chicago-Kent's dean from 1997-2002 and was the Democratic candidate for the U.S. House of Representatives in the Tenth District of Illinois in 2002. Throughout his academic career, Perritt has made it possible for groups of law and engineering students to work together in using the Internet to build a rule of law, promote the free press, assist in economic development, and provide refugee aid in the former Yugoslavia through "Project Bosnia" and "Operation Kosovo," and in building links with educational and governmental institutions in China and Mexico.
Professor Perritt is the author of more than 70 law review articles and 15 books on international relations and law, technology and law, and employment law, including the 730-page Law and the Information Superhighway. He served on President Clinton's Transition Team, working on telecommunications issues, and drafted principles for electronic dissemination of public information, which formed the core of the Electronic Freedom of Information Act Amendments adopted by Congress in 1996. During the Ford administration, he served on the White House staff and as deputy under secretary of labor.
Professor Perritt served on the Computer Science and Telecommunications Policy Board of the National Research Council, and on a National Research Council committee on "Global Networks and Local Values." He was a member of the interprofessional team that evaluated the FBI's Carnivore system. He is a member of the bars of Virginia, Pennsylvania, the District of Columbia, Maryland, Illinois and the United States Supreme Court. He is a member of the Council of Foreign Relations and of the Economic Club, is on the board of directors of the Chicago Council on Foreign Relations, and has served as secretary of the Section on Labor and Employment Law of the American Bar Association.
Professor Perritt earned his B.S. in engineering from MIT in 1966, a master's degree in management from MIT's Sloan School in 1970, and a J.D. from Georgetown University Law Center in 1975.
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