New Mexico Law Review
Posted with the permission of the author.
Copyright © 2002 New Mexico Law Review; Llewellyn Joseph Gibbons, Robin M.Kennedy, Jon Michael Gibbs
The course of ecommerce is not always smooth. Disputes are inevitable. These disputes will have to be resolved if ecommerce is to develop to its full potential. Alternative Dispute Resolution (ADR) is a range of processes for resolving online disputes. Businesses and consumers who engage in ecommerce are often more willing to mediate than to arbitrate their disputes in an online forum because mediation is a voluntary process in which a third-party facilitator assists the parties to the dispute to arrive at a mutually agreed upon resolution. Generally, mediation requires a neutral third party capable of protecting the integrity of the proceedings and facilitating communication between the parties. “For mediation to be most effective, however, the parties must perceive the mediator to be impartial, perceptive, persuasive, trustworthy, interested, innovative and prepared.” The parties must enter into mediation with good faith and with the intent to resolve the dispute. The parties are typically present. This is problematic in the ecommerce context. Legally, and more importantly for effective online mediation, virtual presence may be enough; but virtual presence may not be as effective in breaking down walls and building trust because many individuals are inexperienced at developing relationships using computer mediated communication. The distinguishing characteristic of online mediation is that the mediator and the parties do not share simultaneously the same physical location. Physical presence, at least to some mediators, is the sine qua non of mediation.
This Article examines the feasibility of online mediation. It evaluates some modalities, presents cross-cultural mediation as a theoretical construct to describe online mediation, and recommends guidelines for the practice of online mediation. Some commentators have observed that ideal online mediation remains an aspiration, suggesting that technologies such as videoconferencing are the “obvious solution to the lack of face-to-face encounters.” Yet others have found that online mediation, even at the email level, is an acceptable, if not preferred, method of resolving some types of disputes. This is a false dilemma. Mediation exists on a continuum from face-to-face to pure online mediation. Most of the legal literature evaluating the potential of online mediation can be best characterized as the battle of the anecdotes. No legal scholars have looked at the rich social science literature on the effects of computer-mediated communications. The authors hope to begin to rectify this neglected interdisciplinary area of scholarship and to apply these lessons to online mediation. Informed by the computer-mediated communications (CMC) literature, online mediators will make a substantial contribution to dispute resolution.
Part I of this Article analyzes the need for online mediation, the capability of online mediation to meet these needs, some common misconceptions accepted in the legal-mediation community, the technological infrastructure on which online mediation takes place, and identifies some of the associated real world legal issues raised by technology. Part II discusses differences between physical presence face-to-face mediation and online virtual mediation, examines a sample of the many scientific studies of computer- mediated communication, and postulates how these studies should inform views on whether and when online mediation is feasible. Part III describes some existing online mediation programs as models of what might be and describes various software programs to facilitate the mediation process. Since no article on mediation would be complete without a simulation, part IV applies this Article’s lessons to a paradigmatic hypothetical.
Finally, the Article concludes by taking the position that although online mediation is still in its infant stages, it has the potential to provide new and creative methods to facilitate the resolution of the entire gamut of disputes from the easily resolved to those that are intractable. If online mediation is to be efficacious at resolving disputes, future efforts at online mediation must be informed by both the experiences of the mediator and the existing research in computer-mediated communications.
(The Full Article is available below as an attached file.)
Mediators, legal scholars, and policy makers must consider the existing and potential technical and legal infrastructure that supports and will support mediation. But, this is infrastructure, a basis on which to build online mediation. The many ongoing scientific studies of computer-mediated communication should inform their view on if, how, or when online mediation is feasible or desirable. As research progresses, the assumptions underlying online mediation should evolve. With these caveats, disputes arising out of any potential subject matter may be resolved using computer-mediated communication. The only limitations on online mediation are the needs of the parties and the mediator. Online mediation will not be an appropriate forum for every dispute. Some disputes will not be suitable because the physical presence of the parties or the mediator is required to bring closure to the conflict, but there should be no blanket requirements for either physical presence or virtual presence mediations. This is a judgment call best left in the first instance to the parties or to the sound discretion of the mediator. Finally, training in the proper selection and use of technology should be incorporated into the training of existing and future mediators.
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