Symposium: Legal Regulation of the Internet <br>Dispute Resolution in Cyberspace

28 Conn. L. Rev. 953 (1996)
Copyright © 1996 by the
Connecticut Law Review

INTRODUCTION

Computers don’t just do things for us, they do things to
us, including our ways of thinking about ourselves and other people. -Sherry Turkle

The technology is there for widely separated parties to
meet in cyberspace, exchange and analyze complex information on
preferences and needs, do deals, and execute binding settlements. -Richard Shell

Cyberspace, according to computer scientist David Gelernter, should be viewed
as a “mirror world,” a place where institutions of the world are
represented in digital form and where we can interact with these digital
representations as if we were in the physical space. As computer software and
networks become more sophisticated and pervasive, Gelernter envisions the
development of increasingly complex online communities and institutions, places
containing “some huge institution’s moving, true-to-life mirror image trapped
inside a computer,” As a result, cyberspace, in the future, will be many
spaces. In these spaces, we will engage and interact with each other, as well as
with schools, banks, stores, and a wide variety of other kinds of institutions.
As we do so, we will have significantly expanded opportunities for encountering
a wide array of experiences, some of which have parallels in the physical world
and some of which, due to diminishing constraints of time and distance, do not.

The vision of online worlds or of virtual reality is often associated with
exotic equipment, such as headgear that allows one to feel like one is leaving
physical space and entering a new space. Such devices may, sometime in the
future, become commonplace, but for increasing numbers of people cyberspace is
already a place which they “visit” frequently for significant periods of time.
Without the exotic headgear, but with machines that even a decade or two ago
would have been considered science fiction-like, we recognize and connect with a
place, populated with individuals and institutions, whose form and content
results from enormously complex arrangements of ones and zeroes.

There is much to be learned from Gelernter’s vision, which may be more
understandable and more plausible today than it was when it was published in
1989. A more recent work, Sherry Turkle’s Life on the Screen, looks more
at the present than the future and finds that we have moved from a world of
calculation to a world of simulation, from an image of the computer as something
that calculates and computes to an image of a machine that interacts with us
continuously and helps us define our identities. Given the development and
increasing familiarity of the Internet and the World Wide Web, the concept of
online places where we can interact with others and model alternative futures,
seems increasingly realistic. We do not have headgear that covers our eyes but
we do, with increasing frequency, focus our eyes on the screen and gain meaning
and significance from what appears there.

The concept of a “mirror world” or a “life on the screen” also provides a useful entry point and perspective for considering the issue
of disputes that originate online. As will be explained below, new online or
on-screen spaces in which to interact, meet, form relationships, express
opinions, pay money, and engage in many other familiar and not so familiar
activities, will leave an impression on both us and on the landscape of
disputes. The mirror or screen world will contain and reflect many facets of the
physical world, and will also contain and reflect much of the conflict of the
physical world. It will be an environment that will confront us with a broad
variety of disputing behaviors and attitudes, some of which are familiar from
the physical world and some of which are not. In addition, it will lead to the
development of online dispute resolution processes and institutions, thus
mirroring much conflict resolving behavior of the physical world.

This article focusses on this emerging conflict environment. It raises some
questions about the nature of conflict and conflict resolution online and
suggests a few answers. A “mirror image,” it is important to recall, is not the
same as the original. It can be useful and educational but it may also be
distorted and disorienting, and, inevitably, it reverses the direction in which
images are facing. Thus, the online or mirror image of conflict and conflict
resolution may appear familiar yet it may also require us to adjust our
thinking, and acknowledge that perceptions and assumptions about conflict and
modes of resolving conflict may require some reorientation. Practices and
perspectives that are familiar and traditional in the physical world may need
replacement, not in the sense that something new and different will necessarily
take their place, but that various models will need to be reworked and
repositioned.

This essay begins with an analysis of some elements of the online environment
that suggest the need for new online dispute resolution institutions. The second
section describes three experiments in online dispute resolution that attempt to
address conflict resolution online. Part three focuses on one of the three
projects, the Online Ombuds Office, and considers several challenges of the
online environment to the design and operation of the “office.” Part four
briefly describes the first case handled by the office, one which illustrates
both the conflict-creating and the conflict-resolving nature of the online
environment. I conclude with a story that is intended to provide a perspective
on what it means to adapt familiar activities to a new culture.

I. CONFLICT IN A DIGITAL WORLD

Cyberspace provides us with a new marketplace of ideas and it also provides
us with a new marketplace of conflict. One who participates online finds oneself
in a highly active arena of exchanges and encounters, an environment that allows
persons and groups to communicate, build relationships, and work together in
novel ways. It is an environment where one’s informational activities are not
limited by many of the temporal or spatial constraints of the physical
environment. This leads to an expansion of economic and creative interactions, a
largely beneficial consequence of an electronic environment, and, inevitably, an
expansion of disputes involving the acquisition, use, possession, processing and
communication of information.

Anyone who communicates or participates in online activities has observed or
experienced conflict. Participants in listservs or Usenet newsgroups, for
example, have inevitably witnessed arguments, insults, challenges to integrity
or intelligence, perhaps even claims of fraud, libel and rights being violated.
As the World Wide Web has developed, disputes involving copyright, privacy, and
a range of First Amendment concerns and values have arisen. Consider, for
example, the following incidents:

i. In October, 1995, at Virginia Technical University, a public institution,
a student posts a message at a World Wide Web site for gay men calling for gays
to be castrated and to “die a slow death.” The student is disciplined for
violating a policy prohibiting “use [of] mail or messaging services to harass,
intimidate or otherwise annoy another person.” The Dean of Students states that
the university’s position is that “if you use our server, then you have some
responsibilities because you associate the name of the institution with what you
say.”

ii. In November, 1995, four Cornell University freshmen send friends an e-
mail message containing “Seventy Five Reasons Why Women (Bitches) Should Not
Have Freedom of Speech” The list was highly offensive and in very
poor taste. Some of the friends, however, forwarded it to
others. Soon, the list was widely available on the Internet, leading to many
cries for Cornell to severely punish the students, and to other cries for
Cornell to respect the students’ rights of free expression.

iii. On a listserv discussing the use of the World Wide Web at a university,
a female graduate student comments on some technical issue. A faculty member
responds as follows: “This is one of the dumbest ‘responses’ I’ve seen to
anything about the Web …. Why don’t you save your idiotic comments for the
mirror at home?” The graduate student claims sexual harassment.

These, and almost all other disputes that have occurred online have been
resolved informally. This is not surprising since it is also relatively rare for
disputes in the physical world to end up in court. As Kolb and Silbey have
pointed out:

[M]ost conflicts in organizations, as well as other settings such as
families, communities, and informal groups, never get publicly expressed as
disputes. When probed, people reveal all sorts of grievances, complaints, and
differences that could be — but rarely are — voiced. Sometimes people fear
retribution or loss of social acceptance, others avoid entrapment in complex
processes; others believe that they lack sufficient resources to pursue their
grievance; while yet others see complaining and confrontation as evidence of
moral laxity or lack of independence …. In a study of professional
accounting firms, Morrill … reports that 73% of conflict episodes among
partners are never expressed directly. Avoidance and toleration are the modal
forms of conflict management rather than confrontation and negotiation.

When confrontations do take place, “people frequently resolve their disputes
in cooperative fashion without paying attention to the laws that apply to those disputes.”

The last two years have seen the beginnings of cyberspace litigation. Whereas
prior to 1994, the Internet and cyberspace were almost completely unknown to
both Lexis and Westlaw, that is no longer the case. During the past two
years, disputes involving copyright, obscenity, libel, and
free expression have resulted in judicial decisions.

The opinions in these cases have received considerable attention but they may
be less significant as precedent and as determinants of future standards and
practices than as a sign that disputes arising out of the Internet environment
are increasing and have grown so numerous that a few of the disputes are not
amenable to resolution using informal means. If, in any environment, the pattern
of dispute resolution can be symbolized by a pyramid, in which the point at the
top represents litigation and the base represents the least formal but most
common, mode of dispute resolution, the cases that are now surfacing at the apex
may signify considerable growth at the base.

The projects described below are less a response to Internet litigation or to
specific cases than they are a response to heightened online activity and to
changing use of the network. Cyberspace is in transition, both in terms of how
populated it is and in what it is used for. As cyberspace becomes larger and
different from what it has been, the question of how it deals with resulting
problems and disputes, and with how it can employ the powerful communicative and
information processing capabilities that are present on the network, will
receive increasing attention.

More particularly, the need for more varied online options for dealing with
disputes is linked to two trends in the use of cyberspace. The first involves
the rapid increase in the number of persons and institutions in cyberspace. The
second concerns a broadening of the kinds of activities and
interactions that are taking place in cyberspace.

A. Increase in the population of Cyberspace

Although the exact number of persons participating in online activities is
unclear, there is no doubt that there has been an extraordinarily rapid and
significant increase in the number of persons using the Internet. The
number of Internet hosts has been almost doubling every year since 1991. The
rate of increase in domain names has been even greater, with a more than
threefold increase between January, 1995 and January, 1996. Most of the recent
increase involves use of the World Wide Web, both by seekers of information and
publishers of information, but increases are also apparent in the use of e-
mail, listservs and newsgroups. The Digital Corporation’s Alta Vista service for
locating information on the World Wide Web and in Usenet newsgroups is accessed
five million times each day and indexes nearly 11 billion words found in over 21
million Web pages. The Cornell Law School Legal Information Institute server
experiences approximately 75,000 “hits” a day.

The World Wide Web has provided broad support to publishing and information
distribution activities. E-mail, listservs and Usenet newsgroups have provided
some support to association activities and to transactional activities. All have
combined to enable individuals to establish relationships with other individuals
as well as with groups of people with whom they are unlikely to have interacted
with before. They permit information to cross many institutional,
economic, political and social boundaries, thus encouraging us to think about
our categories of associational behavior in new ways. Listservs and Usenet
newsgroups, for example, are not only vehicles for distributing news, but can
indeed be groups, in that participants feel a relationship with others, and
norms, expectations and assumptions about behavior emerge that are consistent
with group formation and operation.

Currently, the distinctions among e-mail, listservs, newsgroups, and the Web,
are breaking down as the Web becomes able to support a wide
range of activities, including the establishment of relationships and
associations and much transactional behavior. There will, inevitably, be a
slowing in the growth rate of individuals joining the network as the number of
overall participants grows. Even when this occurs, however, network usage should
continue to increase at a high rate. The reason for this is that the network
becomes more valuable as more persons and institutions participate in it and as
new software expands the range of activities that individuals and groups can
engage in. Cyberspace, even today, is not a small place. Yet it is relatively
small compared to what it will be in five or ten years. It will grow larger in
terms of the number of people who have a presence in it yet measurement of
persons with accounts or the number of host computers may miss the most
significant change. What is growing, perhaps even faster than population, are
the kinds of activities that users can engage in. The number of “mirror worlds”
or spaces is growing rapidly as the activities that used to take place in some
physical place increasingly occur online. As these activities increase, and as
the network becomes a place where increasing numbers of relationships form, it
also, inevitably, becomes a place where a large number break down. Indeed, as
the network matures, there will be increases in both the number of economically
significant relationships established online as well as the number that
experience problems.

B. New places and activities in cyberspace

The level of conflict in cyberspace will continue to increase, not only
because there are more people interacting in traditional ways, but because the
kinds of interactions taking place in cyberspace are broadening and changing in
character. In the past, cyberspace has largely been a place for publishing and
exchanging information. To a lesser extent, relationships have formed and, in a
fairly primitive way, individuals in different locations have been able to work
with one another. It is not surprising, however, that the focus of legal
attention has been oriented largely around the publication of content (First
Amendment and obscenity), the distribution of content (harassment and libel),
and the collection and processing of information (privacy and copyright).

One of the themes of both Mirror Worlds and Life on the Screen is that cyberspace should be looked at as a rich and
varied environment, one that, indeed, can support many of the interactions and
activities we engage in every day. Each of the authors of these works
understands that bodies of information in digital form can grow not only into
larger bodies of digital information, such as libraries, but that as they grow
larger, and as they are unbundled and rebundled, processed and
reprocessed, new kinds of institutions will emerge. As cyberspace begins to
support many specialized arenas of interactions and transactions, it becomes
more than sets of documents and more than sets of tools for working with
information. The combination of software operating upon data transforms the
network into a place or places that are an alternative to or substitute for many
different kinds of physical places, and into a culture with values, norms and
expectations about acquiring, exchanging, using, and processing information.

What kinds of physical places can be displaced by the network? The range of
such places is surprisingly broad. Such places are built through software,
through lines of code that represent the informational components of a place or
institution. If one uses the network only for e-mail, the network appears to be
a place for interpersonal and group communication. If one’s focus is on the
World Wide Web, at least as it is used currently, the network appears to be a
place that competes with print publishers. Networks mature, however, as new
software is designed to take advantage of advancements in hardware. Thus, it is
new software that brings us new ventures, new activities, and new opportunities
to interact with others. New software gives us new visions as well as
support for new behaviors. With the right software, a network can create an
online alternative to almost any place that does not involve or require a
physical object or physical process.

The clearest software worlds, and the easiest to understand, are those that
recreate institutions and places that are almost exclusively informational in character, such as libraries or conference centers, or
are largely informational, such as banks or shopping centers. As the
network grows, it will, to more and more people, be perceived as a place in
addition to being used as a tool. It will be increasingly understandable as a
place because the range of activities that will be supported online will
continue to increase, and the physical places in which these activities have
occurred in the past will be displaced and used less often. Online activities
will not only be thought of in terms of particular activities, such as “online
banking” or “online learning,” but as a kind of place that supports many
familiar activities. These online places will not be identical to the
traditional physical place because much of the physical context will be lacking.
Even so, however, we may begin to think of the network as being not only a means
to make deposits, or send complaints about a purchase, but as the store, bank,
corporate headquarters, or library.

The broadening of the kinds of “places” that exist in cyberspace is
significant because context is important in both conflict generation and
conflict resolution. As Leda Cooks has written, “[p]eople experience conflict
culturally and relationally, as well as individually.” Currently, for
example, First Amendment disputes are common in cyberspace because the context
in which activity is occurring on the Internet often involves publishing and
some link to public institutions. The Web, at present, is largely a publishing
place, perhaps an advertising place. There are few disputes involving commerce
and economic issues, however, because the network is not yet engaged in large
scale commercial exchanges. As online contexts broaden, however, the number and
range of online generated disputes will also broaden.

Context affects not only the kinds of disputes which are likely to surface
but which persons become involved as parties to the conflict. First Amendment
conflicts, for example, are not unusual in the academic environment. Student
newspapers, unpopular visiting speakers, and critics of controversial faculty,
often raise First Amendment concerns on campus. It may appear, therefore, that
there is little difference between many online and non-online
First Amendment disputes. In the online context, however, the “mirror world,”
tends to involve administrators and others who have little experience with such
conflicts. Institutional officials, for example, who supervise access to the
Internet or manage the machines that are linked to the Internet often become
decision makers when such disputes arise. It is not surprising that in a highly
distributed and decentralized technological environment, considerable power and
decision making authority has become decentralized as well. Indeed, this may
turn out to be a most desirable consequence of net-working technology. In terms
of conflict, however, it is not likely to lead, in the short term, to a high
level of expertise in analyzing and resolving disputes.

Context is also important in how we approach conflict resolution. Which of
several dispute resolution techniques will be most appropriate for resolving
some conflict may depend on the context in which the dispute takes place. What
is the nature of the relationship between the parties, for example? Is there an
expectation of a future relationship? Is there a need for public standard-
setting or would a private resolution be desirable? Is the conflict occurring in
a stable environment, in which standards set today may be useful tomorrow, or in
a rapidly changing environment, where standard-setting may be less valuable?

One reason why creative and commercial activities are moving to cyberspace is
that constraints of the physical world are less operative there. At an extreme,
virtual worlds can be created which we can all enter and participate in no
matter where we are or, even, who we are. The further we move away from
the familiar context of the physical world, however, the more we are challenged
to come to terms with novel contexts, where interactions multiply, where
boundaries between behavior and speech seem illusory, and where
challenges to those attempting to resolve conflict by relying on seemingly
analogous contexts in the physical world may find considerable challenges.

II. CONFLICT RESOLUTION ONLINE

Relatively little attention has been given to the conflict generating context
of the Internet. Even less attention has been focussed on the conflict resolving
potential of the Internet. Alternative dispute resolution, to a
considerable extent, employs communication to lessen tensions and reach
agreements. Thus, while the network serves as a place where informational
activities heighten the likelihood of conflict, the network also presents
opportunities for designing online places that can be employed to reduce and
resolve conflict. Arbitration, for example, is largely a process in which
information is obtained and evaluated and online tools should provide
opportunities for online arbitration. Similarly, mediation is a process in which
how communication is structured between the parties, and between the parties and
the mediator, is often the basis for agreements reached by the parties.

During the Spring of 1996, three pilot projects were started that were aimed
at developing workable online dispute resolution places:

A. The Virtual Magistrate Project

The Virtual Magistrate is an online arbitration project primarily oriented
around disputes that confront system operators (“sysops”). Cyberspace
reduces costs associated with the distribution of information, thus encouraging
growth in information distribution activities. Sysops are owners or managers of
systems on which these information distribution activities take place. Large
corporations such as America Online or Compuserve are sysops, as are smaller
Internet service providers and bulletin board operators. Such enterprises
provide the accounts, software, and other means that allow one to engage in
publishing and other communicative activities. However, while the sysop provides
the means for publishing to occur, it may or may not have any control over or
involvement in the activity.

The most common type of problem that the Virtual Magistrate expects to deal
with is the posting of messages and files that may place the sysop in some
jeopardy. As described by David Post, one of the founders of the Virtual
Magistrate project, the standard dispute is one in which:

One party – whom I will call Complainant – asserts that a second party
(“Actor”) has posted a message or a file on a system under the control of
another party (“Sysop”) containing “wrongful content” of some kind, e.g.,
material that infringes Complainant’s copyright or trademark rights,
misappropriates trade secrets belonging to Complainant, is defamatory or
fraudulent or inappropriate (obscene, lewd, or otherwise violative of system
rules), and demands that the offending posting be removed from the system under
Sysop’s control.

The value of the Virtual Magistrate is linked to the speed with which it
offers to resolve disputes and the expertise of the magistrates. The Net is not
simply a new channel of communication but it is a channel that changes the
assumptions users have about both time and space, duration and distance. It is
appropriate for online dispute resolution processes to be concerned with
response times since the Net is a real time activity. Messages, files and
postings become available worldwide at the touch of a key. Responses to problems
must reflect the speed at which the Net operates. Remedies that take months or
years to develop will not offer viable solutions.”

Determining the optimum response time will be a challenge, since some
exchanges of messages with parties will be necessary. It had originally been
anticipated that decisions could be made within forty-eight hours. The current
goal is seventy-two hours. The Internet certainly supports rapid communication
but sometimes there is a value to a lengthened time frame and some
experimentation regarding this will be necessary.

B. The University of Maryland Online Mediation Project

This project, designed by Richard Granat, is different from the two other projects in that it is not oriented around disputes arising out
of online activities. The focus of this project is on family law disputes and
disputes related to health care. These are areas in which there are existing
clinical activities at the University of Maryland Law School. As a result, the
project is concerned with bringing new methods and sets of tools to bear on
disputes that are currently being handled in a traditional manner.

When this project formally begins in the Fall of 1996, it promises to have a
wider array of tools available for mediators than the other projects. Like the
other projects, there will be some use of non-network modes of communication
when appropriate opportunities for doing so arise. Even in such situations,
however, there is recognition by the project founders that the network options
provide not only new tools for exchanging information but should yield new
perspectives on analyzing the dispute and monitoring performance after
settlement is reached.

C. The University of Massachusetts Online Ombuds Office

The Online Ombuds Office is an attempt to bring the resources of an
ombuds office to disputes arising out of online activities. Ombudspersons are
independent officials who receive complaints, conduct investigations, and make
recommendations. The ombudsperson role is a varied one but includes “responsive
listening,” providing and receiving information, reframing issues and developing
options, making referrals, and assisting persons to help themselves. The
ombudsperson is not an authoritative or final decision maker but is “a
confidential and informal information resource, communications channel,
complaint-handler and dispute-resolver.” The ombuds role was originally
intended to be an antidote to abuses of governmental and bureaucratic authority
and administration, and ombudspersons continue to be effective intervenors in
cases of arbitrary decision making.

The Ombuds concept originated in Sweden in the early nineteenth century. In recent decades, a large number of institutions in
this country have established ombuds offices. The Online Ombuds Office is an
attempt to allow the Ombuds model to migrate one more time, from the
educational, commercial, and governmental institutions in which it is now
embodied, to cyberspace.

The Online Ombuds Office, like a non-online ombuds office, indeed like any
office, exists as a place where one can obtain information and consult a person
with expertise. The place is not a physical site but a site on the World Wide
Web where one can access information or receive assistance from one of the
Online Ombudspersons. The Online Ombudspersons are experienced ombudspersons
whose physical location may be anywhere.

The Online Ombuds Office project, as originally conceived, would have allowed
a group of ombudspersons, possessing both expertise and experience, to be called
upon by persons involved in online disputes. We have since broadened the scope
of the project, largely because of three decisions, each of which touches on the
issue of what it means to move a process that is based in a physical context,
into the digital environment.

1. Decision 1: The Office Component

Our first decision was to conceive of the project as the setting up of an
office rather than as the application of skills possessed by a person. The
primary reason for this is that the application and use of skill online is
continuously filtered and shaped by that environment. Indeed, the online
environment cannot really be separated from the person using it. By employing
the office metaphor (although it may not always be a metaphor), we recognized
that we needed to make an effort to adapt the online environment to the needs of
the ombudsperson, and not simply accept those tools, such as e-mail, that are
commonly available.

The office concept was important to us because the Web site, which is not
only where the office is located but actually is the office, is likely to be the
access point to the ombudspersons. Persons wishing to obtain the services of the
ombudsperson will, in general, experience the Web site first. It seemed
desirable to us, therefore, to employ the Web site to inform the user and to
provide the user with some tools for self-help.

A physical office contains people, to whom questions may be addressed, as
well as artifacts and publications that may catch one’s attention. The online
office may not appear to have as many objects of potential interest. Yet, this
may be deceiving since the online office can lead one, almost seemlessly, to
resources that are on machines across the globe and to people who are across the
globe. The online office is, although it may not be apparent, shared space,
since it is not located or isolated in a particular institution but can be
accessed by all those with an appropriate communications link.

One advantage of an online office is the opportunity to enter it anonymously,
if one wishes to do so. Although much networking software is designed to intrude
on privacy, privacy and anonymity can also be guaranteed through software. From
the user’s perspective, one entering a well designed online office should feel
free to explore all the routes to information that are provided. In this sense,
the online office is one in which, at least over time, user needs can be
anticipated and in which the user can peruse and copy anything and everything
that is on display without needing to overcome feelings of shyness or timidity.

The World Wide Web provides opportunities to meet a variety of needs of
persons engaged in some conflict. Ombudspersons not only intervene in cases but
help users understand their disputes, link the dispute to existing institutional
policies, and guide users in seeing what options and choices may be available to
them. The Web site will perform some of the same functions for consumers and
disputants as an office would, welcoming them, providing them with information
about the service, and enabling them to begin the process by filling out
appropriate forms.

Unlike a traditional office, the online office offers several opportunities
not present in a physical setting. The “OOO” (Online Ombuds Office) web site,
for example, has significant educational potential and, possibly, a
dispute-prevention function. The web site will contain a data base of online
disputes and cases and materials that might, in some cases, promote resolution
of the dispute without formal intervention. Indeed, in the same way that many
individuals enter a dispute resolution center, find some materials that provide
a perspective about their problem and assist them in resolving their problem by
themselves, the OOO can satisfied the needs of disputants by outlining options,
suggesting possibilities, and furnishing information.

2. Decision 2: The Ombuds Component

A second decision we made was to pair each ombudsperson with someone who had some technical expertise and considerable familiarity
with the Internet. There were two main reasons for this. First, as noted
earlier, context is always a factor in a dispute. In cyberspace, however,
where environments are created by software, our sense was that some
ombudspersons might lack a sense of context and a sensitivity to the environment
out of which the dispute emerged. In the physical world, ombudspersons are often
part of the institution out of which the dispute arose. In the early phases of
this project, however, it is possible that each dispute will be novel and
discussions with technical advisors may assist the ombudsperson in understanding
various assumptions and expectations of the disputants.

Our second reason for employing a technical advisor is that technical
knowledge may affect the ultimate resolution of the dispute. There may be
elements of the online environment that can be employed to obtain data about the
parties to the dispute or that would be useful to employ in order to monitor a
settlement. When solutions and approaches are information-based, the level of
creative problem solving may increase if there is easily available technical
expertise.

3. Decision 3: The Online Component

A third decision we made was to try to provide as rich a set of
communications tools as possible for the ombudsperson. In a physical office,
meetings can occur face to face, with the parties privately or as a group, the
telephone may be used, and handwritten notes may be sent. E-mail alone cannot be
as useful as the set of tools that we have at our fingertips in the physical
environment. The Web site, therefore, needs to be a resource for the online
ombudsperson just as it is a resource for the disputant. For the ombudsperson
whose assistance is sought, there needs to be options for individual and group
communication, and choices that can be made in order to regulate the flow of
information and the pattern of communication.

Ombudspersons are sensitive not only to what information is communicated to a
disputant but to how information moves to and among disputants. The ombudsperson
needs to have some control over the flow of information, since
the communications pattern can affect who is interacting with whom and under
what conditions. The web site will be an evolving resource. As the site
becomes more sophisticated, more resources will become available for both the
disputants and the online ombudspersons. As the site develops, for example,
decision trees and other decision analysis tools may become available, as
well as tools for simulating and modeling alternatives.

Our assumption has been that access to any tools we make available should be
easy to use by disputants. Thus, while software such as CUSeeMe can make video
conferencing possible and affordable, it is not likely that we shall avail
ourselves of this at the beginning. We have, courtesy of Washburn Law School,
access to a specially designed Web-based chat room that allows for real time
communication among participants. This is listed on our Web site as the Online
Ombuds Conference Room. Similarly, Villanova Law School has made available their
“conference” center with threaded communications, should that form of
communication be desired.

The challenge in cyberspace is only partly to provide the third party neutral
with an array of communications capabilities for communicating and working with
information in as easy a manner as one can work with information while sitting
face to face with someone with a problem. It is, in addition, necessary to
understand the nature of ADR processes so that what may not be possible to
duplicate in cyberspace can be redesigned, hopefully in a
manner that furthers the goals or fair and equitable dispute settlement. The
following suggests two examples of the kind of challenge that may surface as
processes are moved from one environment to another. The first involves
confidentiality, a basic concern of ADR. The second concerns the pressure that
the new medium places on the way in which we conceive of the third party’s role
and performance.

4. Confidentiality

An assurance of confidentiality is generally a feature of alternative dispute
resolution. The purpose of holding sessions in private and of guaranteeing
confidentiality is to encourage openness and frankness in discussions with the
third party neutral. In the process of meeting with each party separately,
neutrals learn a great deal from them. Whatever ADR process is employed can be
expected to work more effectively when each party is assured that what they
reveal will not be shared with other parties, unless permission is given to do
so. This guaranty is often not a legally binding guaranty that is supported by a
case or statute. More commonly, it requires some trust in the word of the
neutral that intrusions into the process will be resisted.

When ADR takes place in physical spaces, the context alone provides some
support to maintaining confidentiality. In some ADR programs, for example, case
files are not preserved and, for face to face conversations or those occurring
via the telephone, there is no physical record that can be obtained later and be
used as documented proof. Similarly, any papers or notes kept by the neutral can
be disposed of after the dispute is resolved. The problem in online
communications is that communication over a network inevitably involves copying
or allows for the copying of data multiple times. In the physical setting, one
might take steps to assure that there is only one copy of something or that all
existing copies of something are retrieved. In the online environment, one can
request that copies be destroyed but the process of communication is such that
it is sometimes difficult to even know when or how many copies are made. The
simplest e-mail message may or may not involve a copy being saved on the
sender’s hard drive, on some service provider’s backup system, on some temporary
storage file, as well as on the recipient’s hard drive.

It is important to remember that cyberspace is an environment in which
communication occurs through copying. When messages are “sent” to someone, it is
actually a copy that is sent. When someone looks at an e-mail message or some
other information on screen, there may be copies sitting on
some server, on some other machines that are part of the network, on one’s hard
disk, as well as on screen. As David Post has written, “file copying is not
merely inexpensive in cyberspace, it is ubiquitous. And it is not merely
ubiquitous, it is indispensable, a necessary precondition to the existence of
the medium, because all basic computer functions, and therefore all computer-
mediated communication, rely on reproducing information in some manner or
another.”

In such an environment, how should the issue of confidentiality be treated?
There are some steps that one might take as a regular part of one’s practice,
such as deleting copies that are made automatically, keeping backups of files
for only a limited period of time, and checking local drives often for copies.
An online mediator or online ombudsperson needs to be highly sensitive to the
confidentiality problem and to understand how copying is inherent in all
electronic communications. Yet, even the precautions just mentioned will
probably not provide sufficient assurance in cases in which confidentiality is
highly desired by the parties. Using the most common means of networked
communication involves too much inherent copying to allay the fears of anyone
who understands how information flows over a network.

In a digital world, where copying and communication are intertwined and where
anything that appears on screen can be copied and preserved by one party, it may
be that it is the concerns and interests served by confidentiality that need to
be addressed, and not simply to try to make sure that information is controlled
as tightly as it might be in the physical world. In other words, new approaches
or perspectives are needed that accept the nature of the electronic environment
but that also try to exploit novel tools and practices that are possible in it.

Looked at from this point of view, the question becomes not how to prevent
the copying of information or how to enforce guidelines concerning copying, but
whether there exists some means to encourage parties in the electronic
environment to reveal information about themselves in a way that will not, at
some later date, place them at some disadvantage. The design of an effective
dispute resolution space requires such an attitude, and the working together of
dispute resolution professionals and software designers because, as noted
earlier, the solutions are largely software solutions.

It is hard to know exactly where such collaboration might lead but two options that exist today are the following:

a. Encryption

As noted above, ordinary e-mail is a poor choice for communicating
information that one wishes to be seen by one and only one person. Encryption,
however, can guaranty such a result. Encryption encodes a message so that no one
can decode it without the appropriate “key.” The key is separately communicated
to the recipient. If the message is somehow intercepted before reaching the
recipient, the message will be unintelligible.

b. Anonymity

Unlike an encrypted message, a message sent anonymously can be read by anyone
who obtains it. What is different is that the reader will not be able to trace
it back to the sender. Even when it seems clear, from other means, who the
sender is, there will be no formal way to attribute the message to the sender.

Using anonymous remailers that allow communication but hide information about
the sender, allows content to be transmitted but places some doubt about the
value and authenticity of the message. In another context, the ombudsperson
using the Online Ombuds Conference Room can require the use of a pseudonym by
anyone who enters the room. Conversations are held by persons who think they
know who the other participant is but who cannot really be sure. One could, for
example, have a representative using the pseudonym rather than the actual
disputant. Such an arrangement does not guaranty confidentiality, but it does
make attribution difficult. As a result, it may encourage open communication
since there is less potential damage that can occur to the disputant from what
he/she is represented as saying.

Cyberspace is an environment in which copying is easier but guaranteeing the
authenticity of messages is harder. In cyberspace, it is possible for one to
assume many identities (pseudonyms) and to change one’s identity by pressing a
few keys, or to have no identity (anonymity). Thus, while it is
ordinarily possible to copy any message that one sees on the screen, one also
tends to be wary of attributing the message to the person who appears to be the
sender.

Just as software, in the form of encryption, can guarantee that only one person is able to read a message, there are software solutions to
the authenticity problem. Digital signatures, for example, are codes that are
embedded in a message that can be employed to verify that a message was sent by
someone. What this suggests is that third parties who work online will need to
be sensitive to the varying levels of message authentication that are available
online and to select the level that is appropriate to the problem and to the
parties.

5. The role of the neutral

As noted earlier, context can influence the approach of the neutral, the
choice of process, and the behavior and attitudes of disputants. In any
environment, context can affect the kinds of disputes that are likely to arise
and also affect who the parties are who are likely to be involved in the
dispute. Context implicitly feeds us information about the extent or nature of
the injury as well as how the injury or dispute is perceived by those involved.
Context situates a dispute in a particular time and place, and we react and
adjust accordingly as the parameters of the environment become clear to us. When
the environment is unclear, as cyberspace often is, and when physical artifacts
that serve as symbols of a particular kind of activity are missing, it becomes
difficult to categorize and to find the boundary lines between categories.

What is noteworthy about context in cyberspace, particularly in the current
early phase of cyberspace, is its fluidity and ambiguity. As noted earlier,
there may be uncertainty about whether people are who they say they are.
In addition, ambiguity results because familiar physical elements of context are
missing. Physical cues, such as “body language” and tone of voice, may be
missing, and race and gender may be absent as well. More generally, we are
challenged with uncertainty because cyberspace does not provide us with familiar
or fixed boundaries and limits. In most disputes, the value of contextual
information derives from knowing where a dispute occurred, when it occurred, and
who is involved. Yet, in cyberspace, where context can be redesigned simply by
rewriting the code that determines what appears on the screen,
questions of where and when may not be implicitly and immediately clear to a
third party.

The malleability of many online environments is something that neutrals must
be aware of and confront since these conditions affect the informational value
of context. Computers, as Michael Wheeler has observed, “can profoundly
transform the negotiation process, often without the participants realizing it.”
The computer screen can be designed to have a “look and feel” that makes
us think that the context is the same as that which exists in physical spaces.
In some instances, the online environment may even be designed to take on
qualities of most physical places and institutions. More commonly, however, it
needs to be remembered that virtual worlds are places where Newtonian laws of
time and space can be overcome. Thus, the neutral who attempts to intervene in
disputes in cyberspace must understand that one cannot assume that actions and
disputes in cyberspace will be shaped by the same forces and expectations that
operate in the physical world.

In the physical world, particularly when the third party, such as an
institutional ombudsperson, belongs to the same institution or culture as the
disputants, neutrals and disputants may come to the ADR process with many common
understandings of context. For example, the need for privacy and the potentially
embarrassing consequences of some disclosure may be implicitly understood when
there is a dispute between two employees. There is a background to the dispute
that does not have to be articulated by either the disputants or the third party
neutral since it is grounded in shared assumptions and perceptions.

Cyberspace offers dispute resolvers a variety of impressive informational
tools and opportunities to communicate and work with information. In situations
where the context is familiar, such as when a neutral is merely using online
tools in a dispute that arose locally, the neutral will probably also feel quite
familiar and assume a role that largely parallels the role of a traditional
dispute resolver. Consider, however, a dispute that originates in cyberspace,
that involves a relationship or issue that could only exist in cyberspace, and
that involves people who are located at a considerable distance from each other.
In such instances, the neutral needs to understand and be sensitive to norms and
expectations for which the neutral may have little experience.

III. FIRST LESSONS

Among the general goals of the pilot Ombuds Office project are learning about
the context of cyberspatial disputes, about the expectations of disputants,
about constraints and opportunities when one intervenes at a distance, and about
the role and function of the World Wide Web site. The first dispute brought to
our attention did not result in an online mediation but it did deepen our
understanding of these issues.

The dispute began as an argument in a Usenet newsgroup. It escalated a bit
when the complainant made a telephone call to the respondent (who had included
his phone number on a posting to the newsgroup). The dispute escalated even
further when the respondent called the complainant’s employer and asked that the
complainant be disciplined for making Usenet posts on company time. When the
complainant sent a message to the respondent complaining about this, asking him
to avoid further contact and not to forward the message to anyone, the responded
did just what he was asked not to do and posted the message to numerous
newsgroups.

We had several exchanges of messages with the complainant. We asked for a
more complete statement of what occurred and some clarification of what the
complainant wanted. One difference in a dispute of this kind from a dispute in
the real world that became quickly apparent is that there may be a record of
much of the dispute and that it can be obtained, if one wishes to do so,
independently of the parties. The Alta Vista and Dejanews search
engines can be employed to discover a great deal of information about who the
parties are.

We did not attempt to contact the respondent in this case because we learned
that anyone who sends him e-mail receives a message back saying that his server
is no longer receiving messages and that the intended recipient cannot be
contacted. In reality, messages do reach the intended recipient, who takes the
message, finds the sender’s employer, and does what occurred in this case. This
behavior earned the respondent a victory in the Usenet Kook of the Month contest
for January, 1996, a Web site that recognizes generally obnoxious,
destructive or very strange online behavior. Indeed, the responded received more
votes than any previous Kook of the Month.

I am not sure that we would have chosen to begin online intervention with a
dispute involving such an individual but the pilot project will, we believe,
involve many cases that will have a fairly novel context. The Usenet
environment, where “flaming” and extreme language are not uncommon, may generate
a fair number of cases. As a result of our experience in this dispute, we
modified the Online Ombuds Office Web site to include links to some Web pages
that identify persons who have frequently been involved in online disputes. We
would hope that an understanding of who one is involved with and the fact that
they are widely known for their actions, may bring some satisfaction to those
who experience contact with them, or lead them to avoid further contact.

IV. CONCLUSION

I have, in a recent book, employed the following story about the
anthropologist Edward Hall to suggest that our migration from physical space to
cyberspace touches us on several different levels. Several decades ago, while
doing research in Japan, Hall returned to his hotel one day, went up to his
room, opened the door, and found that while it was the room he had been living
in, someone else’s belongings were there. Hall took this in for a few moments,
all the time feeling uncomfortable, indeed feeling that somehow he must be in
the wrong place, and that he would be found and accused of being in someone
else’s room. He then went down to the desk where he was told that his room and
his belongings had been moved. He was given a new key, went up to his new room,
and found that all of his possessions had been laid out for him in just about
the same way he had left them in the first room. There was a marked resemblance
to the room and the arrangement and yet, he could feel, much was different as
well.

Professor Hall, as an anthropologist, understood that what was important
about his experience went beyond the nature of the artifacts in his new space.
He realized that he was not only in an unfamiliar physical place but that he was
in a culture and environment that he did not understand completely. He was no
longer confident in what he could expect to occur in this space. Whose space was
this, for example, and might he be moved again? Hall realized that the new
environment had physical resemblances to what was familiar to
him but he also recognized that, due to strong environmental or cultural forces,
his role as tourist/guest/renter had changed. Long held assumptions about hotels
no longer seemed to be valid and he became aware that his relationship with the
hotel was different from what he had assumed it to be. What was his, what was
shared, and what belonged to others were no longer as clear as they had been.

Professor Hall, as he adapted to his new space, continued to wonder about
what his new surroundings signified. He eventually left Tokyo, where the first
hotel had been located, and moved to Kyoto. He writes:

There we were fortunate enough to stay in a wonderful little country inn on
the side of a hill overlooking the town. Kyoto is much more traditional and less
industrialized than Tokyo. After we had been there about a week and had
thoroughly settled into our new Japanese surroundings, we returned one night to
be met at the door by an apologetic manager who was stammering something. I knew
immediately that we had been moved, so I said, “You had to move us. Please don’t
let this bother you, because we understand. Just show us to our new rooms and it
will be all right.” Our interpreter explained as we started to go through the
door that we weren’t in that hotel any longer but had been moved to another
hotel. What a blow! Again, without warning. We wondered what the new hotel would
be like, and with our descent into the town our hearts sank further. Finally,
when we could descend no more, the taxi took off into a part of the city we
hadn’t seen before. No Europeans here. The streets got narrower and narrower
until we turned into a side street that could barely accommodate the tiny
Japanese taxi into which we were squeezed. Clearly this was a hotel of another
class. I found that, by then, I was getting a little paranoid, which is easy
enough to do in a foreign land, and said to myself, “They must think we are very
low-status people indeed to treat us this way.”

As it turned out, the neighborhood, in fact the whole district, showed us an
entirely different side of life from what we had seen before, much more
interesting and authentic. True, we did have some communication problems,
because no one was used to dealing with foreigners, but few of
them were serious.

Hall again understood that what was causing him difficulty was not only the
physical inconvenience of being moved but his concern over what it meant that he
had been moved. Any space, he realized, was not simply a physical location but a
cultural environment with embedded norms and values. Ultimately, he learned that
being moved did not have the same significance as being moved might have in the
United States. Hotel space looked the same but it was being governed by some
different conventions and values. Indeed, far from according him a low status,
he learned that the hotel managers who moved him were treating him quite
respectfully. He writes that “the fact that I was moved was tangible evidence
that I was being treated as a family member – a relationship in which one can
afford to be relaxed and informal and not stand on ceremony.”

Hall’s story is meaningful because cyberspace has many qualities of a
culture. It affects not only what we are able to do, but how we do things and
how we think about what it is we are doing. One needs to be very cautious,
therefore, about assuming that what is imported to cyberspace will have the same
meaning and value as it has in physical space. There are, for example, several
projects around the country that have produced courtrooms of the future.
These projects emphasize the use of technology in trials by placing powerful
technology in a familiar physical place. Yet, the most imaginative courtroom of
the future may not be in any of these physical courtrooms but in cyberspace. Its
functions may be similar to that of a courtroom but it may also differ in a
variety of ways from the familiar physical courtroom. It will be separated not
only by dimensions of time and space but by a set of expectations, assumptions,
and goals that we will have to come to terms with.

There appears to be a growing need for dispute resolution in cyberspace. As
they begin to resolve disputes, the Virtual Magistrate Project, the Maryland
Mediation Project, and the Online Ombuds Office, should indicate how the network
can be a resource for confronting online problems. They may also be laboratories
of ideas and practices for working toward the resolution of non- cyberspatial
disputes, since whatever is learned will have applicability for
these disputes as well. In this sense, these online spaces may even turn out to
be prototypes of the courtrooms of the future.

                       

Ethan Katsh

Professor Ethan Katsh is the director of the Center for Technology and Dispute Resolution and Professor Emeritus of Legal Studies at the University of Massachusetts. Along with Janet Rifkin, he wrote the first book on ODR, Online Dispute Resolution: Resolving Disputes in Cyerspace (2001).  Professor Katsh is a graduate ofthe… MORE >