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 2
David Bolter, one of the most insightful writers about the new media, has
observed that “each technology gives us a different space.” 3 Cyberspace has enabled us to
experience many new spaces. We have, most obviously, a new, large and active
information place. We also have a new, large and active people place, where one
can become acquainted with, exchange information with, and work with,
individuals and groups. The creation of these information places and people
places, along with the development of powerful tools for working with others,
and with information, serves as the catalyst for many novel personal and
commercial activities. It also serves as the foundation for a growing disputing
environment as many of these transactions and new relationships encounter
difficulties.
During the past few months, I have been working with a colleague, Janet
Rifkin, to determine how her background as both an experienced ombudsperson
and a scholar of alternative dispute resolution, and my understanding of networks
and computers, might be combined for the purpose of resolving disputes that
originate from online activities. The end result is a pilot project, the Online
Ombuds Office, located in cyberspace at http://www.ombuds.org/”. 4
The Ombuds concept originated in Sweden in the early eighteenth
century. 5 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.
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. 6 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. 7 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.
Part one of this paper describes a few factors that, we believe, underlies
the need for an online ombuds office. Part two outlines a few qualities of the
online environment that we have considered in designing the “office.” Part three
describes some additional challenges in the area of confidentiality and in the role
of the ombudsperson. Part four describes our first case, one that came to us
before we officially “opened” the office but 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.
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.
Most disputes that arise from online activity are 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,
most 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. 8
When confrontations do take place, “people frequently resolve their disputes in
cooperative fashion without paying attention to the laws that apply to those
disputes.” 9
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. 10 During the past two years, disputes
involving copyright, obscenity, and free expression have resulted in judicial
decisions.
These cases are interesting 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 Online Ombuds Office is less a response to Internet litigation than 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.
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 secod concerns a
broadening of the kinds of activities and interactions that are taking place in
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. 11 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 associational activities and to transactional activities.
All have combined to enable individuals to establish relationships with other
individuals as well as with groups of people whom they are unlikely to have
interacted with before. 12
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. 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.
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).
Cyberspace is becoming an increasingly rich and varied environment, one
that, indeed, can suppport many of the interactions and activities we engage in
every day in the physical world. We are learning that bodies of information in
digital form can grow not only into even larger bodies of digital information,
such as libraries, but that as they grow larger, and as they are unbundled and
rebundled, 13 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 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. 14
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. 15
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. 16 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 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.
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. One advantage of an online office is the
opportunity to enter it anonymously, if one wishes to do so. Although much
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.
A second decision we made was to pair each ombudsperson with someone
very familiar with the Internet. There were two main reasons for this. First,
context is always a factor in a dispute. 17 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.
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 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. 18
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. 19 The web site will be an evolving resource. As the site becomes
more sophisticated, more resources will become available for both the disputants
and online ombudspersons. As the site develops, for example, decision trees and
other decision analysis tools may become available, 20 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.
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 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.”
21
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 sensititve 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:
1. 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. 22
2. 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
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