Harvard Negotiation Law Review
*175 ELECTRONIC ONLINE DISPUTE RESOLUTION: A SYSTEMS APPROACH--POTENTIAL,
PROBLEMS, AND A PROPOSAL
Robert C. Bordone [FNd1]
Copyright © 1998 Harvard Negotiation Law Review; Robert C. Bordone
Reports estimate that more than 37 million people have access to and regularly use the Internet. [FN1] Based on a monthly growth rate of nine to twelve percent, [FN2] and estimates that a new person plugs into the Internet every ten minutes, some have speculated that every person on the planet will be networked by the year 2003. [FN3] Indeed, though practically unknown in 1989, the Internet today links more than 130 countries around the globe. [FN4] Businesses, organizations, institutions, governments, and individuals use computer networks to sell products, share information, converse, and develop communities across borders of space and time on virtually every subject. [FN5]
With this explosion of activity and collaboration in Cyberspace and with the corresponding rise of what many call "virtual communities" on the Internet comes the certainty of online conflict and *176 disputes. [FN6] Indeed conflicts are inevitable in any community. [FN7] The fundamentally unique nature of Cyberspace, however, raises important and difficult questions for lawyers and policy-makers as to how to regulate this "virtual" space and how to resolve the disputes which have and undoubtedly will continue to occur in Cyberspace.
There already exists vast, albeit young, literature on the emerging policy and legal issues of life on the Internet. [FN8] In addition, a Westlaw search found that, at the time of this writing, 122 published cases in the Federal Court system had already addressed issues related to Cyberspace. [FN9] Most of this literature either applies current "real world" law to Cyberspace issues such as copyright, intellectual property, or free speech [FN10] or, alternatively argues that Cyberspace is a separate space that should have its own independent set of law and authority apart from the law of the "real world." [FN11] These latter articles eliminate many of the challenges of applying "real world" law to the "virtual world" yet gloss over the barriers inherent in any effort to detach Cyberspace from its necessary umbilical cord connecting it to the "real world." Most of the work published until now, therefore, has addressed the issue of online electronic dispute resolution from a *177 purely legal, jurisdictional, or rights-based viewpoint rather than from a more integrated, interest-based systems approach. Similarly, the efforts by the alternative dispute resolution (ADR) community to consider the role of ADR in a fully-integrated online dispute resolution system have been limited.
This paper endeavors to add its voice to the small number of those in the ADR community who perceive a rare opportunity to actually design a conflict resolution model where none yet exists and to develop a system for dispute resolution that integrates the interest-based, participatory approaches of mediation and negotiation with the rights- and power-based roles of arbitration and adjudication. Therefore, this paper will present and assess some of the difficult issues involved in electronic dispute resolution as well as argue that there is a crucial role for ADR specialists and designers of dispute resolution systems to play in the development of a comprehensive and optimal system of dispute resolution for the Internet. Most importantly, the paper will introduce a first-draft one-text proposal [FN12] for an integrated conflict resolution system for online disputes.
II. What Makes Cyberspace Different?
Cyberspace differs from real space in at least three ways relating to the formation and resolution of disputes. As a result, we need to rethink our traditional paradigms for resolving conflict and create opportunities for design of an interest-based dispute resolution model for the Internet.
A. Cyberspace as Virtual Community
Cyberspace differs from other technological innovations of the twentieth century in that it has, in and of itself, become a "community" to millions of people. Indeed, it has become a community that is separate from the "real" community in which these people live. Howard Rheingold writes:
*178 People in virtual communities use words on screens to exchange pleasantries and argue, engage in intellectual discourse, conduct commerce, exchange knowledge, share emotional support, make plans, brainstorm, gossip, feud, fall in love, find friends and lose them, play games, flirt, create a little high art and a lot of idle talk. People in virtual communities do just about everything people do in real life, but we leave our bodies behind. [FN13]
Literally, thousands of "virtual" communities, such as the one described above, exist online. They range from The Well [FN14] as described by Rheingold above, to Our Square, [FN15] an intellectual community with a membership restricted to students and alumni of the nation's most elite colleges and universities. Our Square serves as a dating service, person- finder, job search network, and forum for "intelligent" discussion of ideas.
Customs, norms, and rules that differ from those we experience in the 'real' world have developed within these virtual communities. [FN16] These differences must be recognized and taken into account if an effective model of dispute resolution is to be created and implemented for Cyberspace. [FN17] Cyberspace communities, unlike real space communities, are organized around unidimensional areas of interest. That is to say, individuals join specific conversations relating to "communities of interest, education, tastes, belief, and skill." [FN18] In physical communities we may often find that the only significant thing we share in common with our neighbors is physical proximity. Yet that physical proximity prompts us to deal with our neighbor along other dimensions that we may not otherwise choose were it not necessary *179 to live amicably in our neighborhoods. For example, in virtual communities we can choose to communicate only with those who share a single mutual interest, such as an interest in alternative dispute resolution. Because we are not physically proximate, our level of commitment to the moral community is likely to be low. Correspondingly, the possibility of nonparticipation is high. [FN19]
For many, Cyberspace is much more than a computerized Yellow Pages or a place to get a 24-hour weather update. Instead, it has taken on many of the characteristics of community, replete with community-specific customs, needs, and desires. It is crucial that the architects of a dispute design model study and understand these communities before transplanting a model of the "real world" dispute resolution into Cyberspace. [FN20] Most residents of Cyberia "would rather be subjected to the judgments of their own virtual community than the laws of a physical place far away from where they live." [FN21] As a virtual community, Cyberspace differs from real space and those differences matter in the construction of an effective dispute resolution system.
B. Cyberspace and the Deconstruction of Time, Space, and the Physical
In Cyberspace, unlike any real community, communication transcends time, space, and physical reality. This unique characteristic of the Internet influence the nature and type of disputes likely to arise on the Internet and thereby affect the type of dispute resolution process best suited for the forum. [FN22]
*180 In Cyberspace time collapses. Information travels rapidly on the Web and the harm of a complaint can do a great deal of damage in a short amount of time, especially in comparison to the non-virtual world. [FN23] More than telephonic communication, Cyberspace's ability to allow large numbers of people in all corners of the world to have real time conversations on the Internet multiplies by many factors the consequences of a hurtful, damaging, or unintended communication of attribution, of copyrighted material, or of secret information.
The Internet also collapses physical space in many ways. Messages can be sent from Iowa to China and on to Australia in a matter of minutes. But this is not all. One person in Iowa can send a message to hundreds of people all over the world simultaneously and also in a matter of minutes. [FN24] Needless to say, the potential for increasing communication and understanding among peoples through such technology is vast.
At the same time, there is also an increased potential for misundertstanding. From one's computer terminal, it is difficult to understand the implications of Cyberspace's annihilation of distance and space on communication in relationships. Yet experience demonstrates that it is easier to communicate a difficult or unpleasant message via email than in person or on the telephone. [FN25] The physical "distance" makes such communications feel safer for the messenger. The impact on the receiver, however, is not likely to be any better because the messenger felt more comfortable in delivering it. In fact, the ultimate effect of using a computer-mediated communication to deliver "difficult" or "uncomfortable" news or feelings can actually lead to more rather than less conflict between the involved parties in the long run. The challenges of Cyberspace in addressing these issues is unique. In the non-virtual world, persons communicate using much more than mere words. Tone, affect, space, and time all add to *181 the richness of an interpersonal communication and help us to calibrate our responses appropriately to that of our counterpart. [FN26] Even in a phone conversation, tone, affect, and time are present in a way that they simply are not in Cyberspace. Thus, a dispute resolution system for Cyberspace must make allowances for the likelihood of greater misunderstandings in communication due to the narrower and more constrained means of communicating.
C. Cyberspace and the Elimination of Boundaries
The most challenging and perplexing difference between Cyberspace and real space seems to be the absence of boundaries in Cyberspace. [FN27] Our real space legal jurisdictions are essentially defined by geography, by the physical boundaries of space. [FN28] Issues of personal jurisdiction and choice of law in the real world depend on where the action takes place. The global nature of the Cyberspace medium where events seem to happen everywhere at the same time raises serious jurisdictional and substantive questions.
In Cyberspace, there are no geographic boundaries. Communication in Cyberspace knows no borders. It is everywhere and no where in particular. It cuts across national borders and undermines the relationship between geographical location and the power of local government's efforts to regulate online behavior. How to deal with issues of boundary, jurisdiction, and choice of law across state and national boundaries are problems that are unique to the Internet. These problems must be addressed apart from the real world legal system simply because there is no single "real world" legal system that can be applied uniformly in Cyberspace without agreement from all countries to abide by it.
Most legal scholars writing in the area of law and Cyberspace have focused their efforts on the problems that the lack of borders *182 and physical jurisdictions present to the governance of Cyberspace. [FN29] Theyhave suggested various ways to develop universal rules for the Internet despite the lack of borders. "Most attempts to define new rules for a development of a GII [Global Information Infrastructure] rely on disintegrating concepts of territory and sector while ignoring the new network and technological borders that transcend national boundaries." [FN30] Yet it is clear that "boundaries make law possible, by encouraging rapid differentiation between rule sets and by defining the subjects of legal discussion." [FN31]
Prior to the emergence of the Internet, Local Area Networks run by private companies or universities developed their own internal sets of rules for using the Internet. [FN32] Computer-mediated communication was regulated and monitored by these closed, private forums. Once these networks became interconnected through the Internet, however, the former "system-level" conception of boundary definition changed to an "open-system" where parties could cross boundaries at-will and largely without consequences. [FN33] Attempts by territorial jurisdictions to regulate the Internet have met with limited success largely because it is impossible for them to control the information which comes across Cyberspace from other territorial states or nations. It is also easy for persons within a particular state to disguise the origin of their communications. [FN34] Despite the inability of territorial sovereigns to regulate Cyberspace, many have tried. Legislation designed to regulate speech on the Internet has been passed or proposed in the following jurisdictions: Australia, Germany, the United Kingdom, Alabama, California, Connecticut, Florida, Georgia, Illinois, Kansas, Maryland, Massachusetts, Minnesota, Montana, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Virginia, and Washington. [FN35] The Supreme Court, however, has recently held unconstitutional certain provisions of the Communications Decency Act, *183 an act under whose terms it is a federal crime to send or make available to a minor (anyone under 18) any "indecent" material, [FN36] in Reno v. ACLU, 117 S. Ct. 2329, 2342 (1997).
Any dispute design system for Cyberspace must consider the implications that the borderless space of the Internet will have on regulation, governance, and enforceability. If it is to be successful it must also consider the interests of the citizens of Cyberia as well. Trying to overlay a non-virtual world system of law that is fundamentally grounded in physical space and geography onto a virtual world which transcends time, space, and borders will prove difficult if not impossible. [FN37] Cyberspace is more than a data network or set of channels to help facilitate life in the real world. It is also a people connector and community unto itself. [FN38] It is distinct from the real world and yet, because it is populated by people with emotions and feelings and culture, conflict will abound.
*199 VI. A Proposal
A. Goals and Objectives of the System [FN94]
First, the system will resolve online disputes which arise from online communications between persons residing in Cyberspace using primarily an interest-based approach. These include disputes related to issues of copyright, intellectual property, commerce, fraud, defamation, and libel. The disputes might be between any combination of businesses, organizations, individuals, or system operators.
Second, the model's goal is to ensure that the citizens of Cybercommunities have primary input and control to choose what process to use in resolving their dispute online. Unlike the OOO or VM which essentially offer one type of dispute resolution process, a comprehensive design would offer an array of processes, becoming the only comprehensive online public dispute resolution process. This means creating a gateway entry point on the Web with experts who help disputants assess the nature of a dispute and who recommend a menu of possible online options to the disputants. It also means ensuring that outcomes are satisfactory to disputants from both a procedural and substantive vantage point.
Third, the dispute system model will leverage the technological advantages of life in Cyberspace. That is, the model will offer a more efficient, speedy, and flexible process for the resolution of disputes. It also means keeping online dispute resolution simple, easily accessible, and affordable. [FN95]
Fourth, the model will minimize some of the potential downsides of disputing online, especially those relating to power imbalances, lack of tonal, facial, or other cues, and barriers to trust in the viability of online agreements.
Fifth, and related to the goal of an interest-based system, the model will be responsive to the peculiarities of life in Cyberspace and cognizant of the fact that life in Cyberspace is different from life in real space. [FN96] Such a model will increase community and collaboration in Cyberspace, not stifle it for fear of conflict and intimidation.
*200 Sixth, another goal of the model is to develop a system that interfaces seamlessly with territorially-based jurisdictions. This also means proposing a system that is attractive enough to territorially-based jurisdictions so that they will buy in to the model and abandon claims of sovereignty over the Web.
Important to the viability of the model is making it at least minimally acceptable to the major system operators so that they support the system and render it legitimate and credible to citizens of Cyberspace. Without their support, the online dispute resolution system is not likely to thrive. No matter how brilliant the dispute resolution model may be in theory, if it cannot garner legitimacy from those who will be recommending it, it will fail. [FN97] Finally, it is important that the model be amenable to change as the nature of Cyberspace changes over time. This means not only flexibility of design but also building in a strong feedback and evaluation system to assess areas of weakness where further "re-modeling" is necessary. [FN98]
B. The Framework
The theory of the system is grounded in that of the Law of the Merchant, reflecting a move away from local jurisdictional law toward a dispute resolution process that applies universally because it is designed to meet the needs and interests of the persons who use it. [FN99] In that sense, while the system does not require the absolute sovereignty that some urge for Cyberspace, [FN100] it does require that national sovereigns respect the integrity of the system and its jurisdiction in Cyberspace by according it substantial deference. Likewise, the proposed dispute resolution system below demands that those running it exercise discretion and restraint in the cases they agree to accept and resolve. Like the limited aspirations of the OOO or VM, *201 the dispute resolution system below deals only with conflicts arising from online transactions and communications.
The entry point of the online dispute resolution system would be a Web page similar to that of the OOO called the Dispute Resolution Referral Center (DRRC). It would be fashioned after a multi-door courthouse or multi-option justice system like that first introduced by Professor Frank Sander at the Pound Conference in 1976. [FN101] Under such a model, a disputant entering the DRRC would be referred to a Dispute Diagnostic Specialist (DDS). The DDS would first create a "private chat room" for the dispute. This chat room becomes the repository for all information related to the dispute whether it is ultimately channeled to mediation, arbitration, or both during its history. Only the disputants and any third party who becomes involved in the case (e.g., a mediator, ombudsman, or arbitrator) would be given a password to enter the chat room, creating a confidential environment for the exchange of information regarding the dispute. Having created the chat room, the DDS would then receive information from the complainant, evaluate the nature of the dispute, and recommend to the parties several options which might prove successful in resolving it. Depending on the nature and circumstances of the conflict, these options might include opportunities for unassisted online negotiation, an online mediation (similar to those conducted by the OOO), an online arbitration (similar to those conducted by the VM), an assisted negotiation/mediation hybrid using an ombudsman, further fact-finding by an ombudsman, or if the dispute were outside the jurisdiction of the Cyberspace model, references to territorially-based legal agencies. [FN102] At the time it makes these recommendations, the DDS would direct the disputants to Web pages which would describe in detail the pros and cons of each process so that the disputants could take this into consideration when evaluating their options.
*202 The DRRC would be the mandatory entry point for all online disputes. Once the DDS analyzes the dispute and offers recommendations, the disputants would be free to choose whichever process they prefer for resolving their dispute. However, unlike territorially-based systems, online disputants could not escalate to adversarial adjudication before "checking-in" with the DDS. Permitting such escalation would be contrary to the DDS's function as gatekeeper for the system (i.e. inviting parties to consider the underlying interests of their claim and how these could best be achieved).
The DDS should be given the creative freedom to "custom design" processes for particular disputes and individuals. For example, the DDS might recommend sending one or two issues to the arbitration option with a "loop back" to mediation once those issues are resolved. [FN103] The key to the system is flexibility and ultimate user control. Once the disputants agree on a process, the DDS would direct them to the appropriate Web page dedicated to that process. The DDS would also inform the Process's Administrator of the referral and would give the Administrator access to the chat room assigned to that particular dispute. If the disputants choose to partake in ombudsman fact-finding and assisted negotiation, for example, the Administrator of that Web page would assign the case to an ombudsman and give her access to the dispute's chat room. The entire record of the case would be logged into the chat room, and the newly-assigned ombudsman would read the information, introduce herself to the parties, and direct the process.
The DRRC should offer the following online dispute resolution processes: mediation, unassisted negotiation, arbitration, and further fact-finding by an ombudsman. Confidentiality would be guaranteed as part of the mediation, unassisted negotiation, and ombudsman fact-finding options. The arbitration option represents the adjudicative, adversarial model of dispute resolution for the Internet. Since some disputes are appropriately decided by third parties because they are conflicts over rights and power, it is essential that even the most ambitious and evolved interest-based dispute resolution model offer an adjudicative option for resolving disputes. Consequently, decisions made in this arena would not remain confidential but would be logged into a case library which would be made accessible to all residents of Cyberspace. The arbitration process would be very similar to the set-up of the VM. However, it would *203 evaluate cases based on predominant Cyberspace custom more than on current territorial law. [FN104]
C. Training & Qualifications of DDS, Mediators, Ombudsmen, and Arbitrators
An obvious challenge of implementing such a plan is ensuring that there are enough highly trained dispute diagnostic specialists (DDS), mediators, ombudspersons, and arbitrators to handle the flow of disputes. [FN105] For instance, DDS personnel should be certified because of the important gatekeeping and diagnostic role played by these persons. [FN106] It will be necessary to develop a training program for those who would like to serve in this role since there exists no "real space" analog to the DDS. The training would include workshops on mediation, dispute systems design, dispute diagnosis, and counseling. It should focus on how to tailor dispute systems for particular conflicts and disputants so that there are adequate loops forward and loops backward between various processes. In addition, it would need to include training in Netiquette and to test the DDS' knowledge of Cyberspace's norms and customs.
One source of potentially inexpensive, highly qualified, and ambitious DDS personnel may be law schools which offer courses in ADR that encourage students to be creative architects in designing dispute resolution models. [FN107] One could easily imagine the DDS role becoming a clinical experience for students of ADR in law school. Drawing on law schools as the main source of DDSs would ensure that training and certification were complete and comprehensive and would provide facilities and funds for the training. The downside of making *204 law school students DDSs is that it might inhibit theprofessionalization of the position. To the degree that the online dispute resolution system being developed is intended to serve permanently as the dispute resolution process of Cyberspace, professionalization of the DDS gatekeeper role makes sense. Indeed, it is the "crown jewel" role of this system. If the initial source of DDS personnel becomes law school clinical programs, it will be important to encourage the first generation of students who go through these programs to "specialize" in this area of ADR and the law so as to develop a strong, experienced, career-oriented body of DDS professionals going forward.
The formal training requirements for those seeking to serve as online mediators, arbitrators, and ombudsmen should not be as stringent as that of the DDS, at least initially. As in the OOO and VM projects, these persons should be held to extremely high standards of experience and competence in their respective fields. Online mediators and ombudsmen should be trained and experienced as mediators in the nonvirtual world and arbitrators should be similarly trained and committed before they are allowed to serve in this dispute resolution model. Also, like the OOO and VM projects, a prerequisite for these positions must include citizenship in and broad familiarity with Cyberspace. This qualification is especially important for those who will serve as arbitrators in the process given the expectation they their decisions will rely on norms and customs of Cyberspace in the same way that decisions of the Law Merchant depended on the customs and needs of merchants. If the arbitrators are not familiar with Cyberspace, it will be difficult for them to make rulings reflective of the custom and practice that has developed there and this, in turn, will undermine the legitimacy of the dispute resolution system in the same way that traditional territorial law has lost credibility in its attempt to resolve disputes arising in virtual communities. [FN108]
Over time, depending on the number of disputes coming through the DRRC and the availability of mediators, arbitrators, and dispute design specialists, it may be necessary to develop a full-fledged training and accreditation for those who wish to serve in these positions, similar to the one required for the DDS. Until then, broad experience in "real life" ADR, comfort and familiarity with the Internet, and supervision and oversight via program Administrators should suffice as qualifications for those who serve in the roles of online arbitrator, mediator, or ombudsman. Because these ADR practices will function *205 more in the "shadow of Internet custom and norms" than in the "shadow of the law," it should not be a requirement that these persons hold legal degrees. Experience and skill in mediation and in Cybercommunities are far more valued assets than legal knowledge of territorial jurisdictions.
The DRRC should publish a "handbook" describing in detail how mediators, arbitrators, and DDS should function in their roles. The handbook should be modeled on the Virtual Magistrate's Handbook for Magistrates which discusses training requirements and complaint and decision handling procedures. [FN109] In addition it should discuss issues of jurisdiction, enforceability, and the like.
Finally, as the "common law" of Cyberspace develops through the online arbitration service, it will be important to familiarize both old and new DDSs, arbitrators, mediators, and ombudsmen of substantial changes process and precedent-setting decisions. This can take the form of occasional bulletins emailed to all serving in such roles as well as online chat rooms, conferences, or mandatory "continuing education."
D. Enforceability and Sanctions
The primary purpose of an interest-based dispute resolution model is to help disputants reach amicable, value-creating agreements on their own without need of sanctions or enforcement. Indeed, the hope is that in using the DRRC gatekeeper model the vast majority of disputants will choose negotiation, mediation, and ombudsmen options. By providing many online resources about the nature and benefits of these processes and by encouraging the DDS to tailor processes with loops forward and back to these consensus-building, interest- based methods, the expectation is that there will be very little need for involuntary sanctions and forced enforcement of arbitrated decisions. In order to make the system operational, however, these issues must be addressed and doing so involves the buy-in and cooperation of the system operators.
As with the jurisdiction of the Internet, sanctions must be limited to the world of Cyberspace as well. The system operators are the key to ensuring enforceability of any sanctions that may be imposed by the arbitration arm of the dispute resolution model. Indeed, securing buy-in of the process from system operators is also an essential part of securing buy-in from Cybercommunities. The system *206 operators will serve as the functional equivalent of local government enforcement agencies to ensure that sanctions against malfeasors are carried through. [FN110] Also, when system operators buy in to the model, they will make access to the Internet via their system conditional on applicants agreeing to resolve their disputes through the model's dispute resolution process. In a sense, the system operators will become the Immigration and Naturalization Service and will require that "immigrants" to Cyberspace agree to the dispute process existing in that society as a precondition for admission. The conflict management system then will be instituted through a contract model requiring that the customer assent to the terms of the dispute resolution system.
Giving the system operators this role puts them in a very powerful bargaining position with regard to the establishment of the new dispute resolution system. Indeed, the history of dispute resolution in a given new territory often started out as a right given to the owner of the territory. [FN111] Hence, it is important to be vigilant and ensure that the system operators do not impose too powerfully in shaping the dispute design model such that it tilts it in favor of the system operator's own rather than the general Cybercommunity's interests and needs. At the same time, buy-in from the system operators is crucial from an enforceability perspective as well as a functional one since many of the cases will no doubt involve them as a party.
Regarding sanctions, it is important that they be limited to the online community. Sanctions will range from removing a posting, forbidding a party from sending or posting messages for a specific amount of time, and temporarily suspending citizenship rights in Cyberspace, to imposing permanent banishment (i.e. the "death penalty") for the worst of violations. [FN112] Other possible sanctions might involve forcing a disputant to post an apology or a correction of some specified sort. At this time monetary sanctions seem unlikely *207 although perhaps over time the Cyberspace community will decide that such sanctions are in order.
Without the cooperation of the system operators and national sovereigns, the dispute resolution model being proposed here will not become a fully integrative one, able to offer a complete range of dispute resolution options to disputants. It will instead remain limited to the consensual process options of negotiation, mediation, ombudsman fact-finding, or voluntary arbitration. Also, the system of dispute resolution proposed here may remain one set of many options which are sure to appear in the years ahead. Some no doubt will be innovative and well-administered, creating perhaps a more competitive and stronger market for dispute resolution options than this one- text proposal. Others, however, promise to be quick-fix, irresponsible options which most likely will be used by persons who are less savvy or less able to afford the more process-oriented dispute resolution models. Securing the support of national sovereigns and system operators, then, is essential to thesuccess of online dispute resolution.
E. Who pays?
At this point, even the most idealistic of optimists may be wondering who is going to pay for this elaborate dispute design system. Needless to say, ensuring that ample funds exist to support a dispute design system is critical to its viability. [FN113] The ultimate decision for how to fund the DRRC gatekeeper model should rest with the residents of Cyberspace who will be using the system.
In many respects, the online dispute resolution model need not be tremendously costly. The current OOO, Online Mediation, and VM Projects are funded by NCAIR. The costs for such programs are essentially the stipends paid to the ombudsmen, mediators, and arbitrators. In a full fledged dispute design model, however, we might predict some additional costs. First, of course, the DDSs will need to be paid for their services. If the bulk of the DDSs come from law schools, this cost should be low at first and will rise as this first generation of DDS gatekeepers become professionalized. However, there will be added costs of training and of upgrading and maintaining the Web pages for the DRRC and its component branch processes. Because the project will be in pilot form at first, there will be additional costs of studying the effectiveness of the online dispute resolution *208 model by securing feedback and evaluation of its short- and long-term success. In addition, we can expect costs for lobbying and advertising the existence of the model in its early stages.
There are many options for covering these costs in addition to securing grant money from organizations such as NCAIR or The Electronic Frontier Foundation. One of them would involve a "user tax" to be imposed by the system operators as a surcharge on all Cyberspace citizens. Under such an approach, in addition to the fee that users of a system pay to access the Internet, the system operator also would charge some amount, perhaps $5 per year, to cover the cost of running the dispute resolution system. [FN114]
Another option would be to exact "dues" from national sovereigns in the way the United Nations does. The dues, of course, would be extremely low. The online dispute systems design team could persuade the national sovereigns to pay for this service by framing it as a small price to pay for the lessened burden on their nation's judicial systems due to the existence of the dispute design system. The downside of this approach is that it keeps the online dispute resolution system dependent upon territorial sovereigns perhaps more than would be consistent with the idea of Cyberia as "separate space."
Yet another approach would be to pay for the dispute design model by setting up a "pay-as-you-go" model. Under this model, disputants might pay a $100 fee whenever they used the dispute system to cover the costs of operating the system. In pure form, this model is particularly troubling. To the degree that the citizens of Cyberspace value the dispute resolution model as a public good and to the degree that all of Cyberspace pays a price for conflict, [FN115] it should be subsidized by the public at large and not by the individual users. Additionally, if individual users must pay for using the conflict resolution system, they might be deterred from invoking it. Though this might be perceived as a structural advantage, it is not. Less use of the conflict resolution system does not mean that there will be less conflict. *209 The same conflicts will exist but will either go unresolved or resolved in unsatisfactory, less optimal ways. While it is important not to create a system which encourages conflict because of the rewards that it may give, it is equally important not to create a dispute resolution system that discourages the system's use due to excessive cost once a conflict already exists.
One could envision paying for the dispute resolution system by creating some combination of the above structures. For example, requiring that the system operators charge a $3 annual fee for the dispute resolution system might be combined with an additional $5 fee (similar to a nominal court filing fee in real-life courtrooms) from each party when a dispute arises. The point is that there exist many ways to pay for the dispute resolution system that are not administratively difficult. My recommendation would be to spread the costs of administering the program through a broad Cyberspace "user tax." This user tax would then be supplemented with funding from a small filing fee paid by each complainant. Whatever manner of funding the citizens of Cyberspace select, it is important that it be they who work out the process that is most responsive to them and their interests.
F. Feedback and Evaluation
The final challenge of designing and implementing a dispute system of this magnitude is building in opportunities for feedback and evaluation in such a way that they elicit an honest, general sense of how the model is working. In order to elicit quality feedback and evaluate it thoughtfully, the model must ensure that the architects are not so enamored of their own work that they ignore or dismiss valid complaints, gripes, and deficiencies. It also must ensure that feedback is built into the model at some fixed interval so that it does not get overlooked.
The model should use three basic criteria in evaluating the dispute systems process: (1) efficiency, (2) effectiveness, and (3) satisfaction with process, outcome, and relationship. [FN116] A fourth supplementary measure should be to compare the results of the new system with the initial purposes and goals. Are those goals being met by the new system? In what ways are they working well? What are the shortcomings? How can they be improved?
With regard to the online dispute resolution system, all participants in the new system should be surveyed after the first year of the *210 program in an attempt to assess where the system has been successful, where it has been lacking, where changes can and should be made, or whether the entire system should be reconstituted. All participants in the original pilot of the system should be assured that this review will occur at the time the program is implemented in order to persuade them of the ultimate interest of the system in serving the inhabitants of Cyberspace. The use of online technology can aid the collection of feedback from the participants in the system.
Continued formal and informal opportunities for feedback should be scheduled in order to assure that the system remains responsive to the changing nature of Cyberspace and the needs of its inhabitants. The history of dispute resolution in organizations is to move from power-based models and methods to rights-based and then to interest-based. The attempt here is to start in this fourth interests-based mode and work from there. Because of the novelty of such an approach, problems and challenges are foreseeable. An openness to changing, modifying, or even scrapping the first model is essential to ensuring that the ultimate goal will be achieved.
Dispute systems design and ADR specialists have a unique opportunity to be the primary force in setting up a dispute resolution system for the world of Cyberspace. The failure of the ADR community to involve itself in the growing debate among legal scholars as to how to regulate, govern, and legislate the Internet would represent not only a missed opportunity but also a tragic abdication of responsibility in contributing the ideas it has developed during the past twenty years in improving dispute resolution in the real world to the development of a conflict management system in this new virtual space. Indeed, "[L]aw library shelves already groan under the weight of innumerable papers, bills, proposals, and jeremiads organized around the dangers of the digital age." [FN117] The time has arrived for the ADR community to engage Cyberspace and make its presence known.
The Internet has become one of the most creative social experiments of our time. Will ADR and dispute systems design specialists help form a dispute resolution system online that promotes collaboration and cooperation? Will lawyers join them? Or will we sit back and watch or, even worse, simply try to overlay the already-overtaxed *211 and inefficient territorial legal system on top of the extraordinarily different, challenging, and changing world of Cyberspace? The potential for an integrative and comprehensive online dispute resolution model is great. But, there are also many possible pitfalls. At this time, we must choose to become stewards instead of spectators, innovators instead of copycats, normative rather than alternative. In Cyberspace, "alternative" dispute resolution can become the mainstream dispute resolving option.
[FNd1]. Robert C. Bordone is a 1994 summa cum laude graduate of Dartmouth College and a 1997 cum laude graduate of Harvard Law School. He is currently a law clerk to the Honorable George A. O'Toole, Jr. of the United States District Court for the District of Massachusetts. Beginning in September 1998, Mr. Bordone will be serving as Deputy Director of the Harvard Negotiation Research Project and as a Lecturer on Law at Harvard Law School. Mr. Bordone wrote this paper during the 1996-97 academic year as a Hewlett Foundation Research Fellow at Harvard Law School.
[FN1]. See George Friedman & Robert Gellman, An Information Superhighway "On Ramp" for Alternative Dispute Resolution, 68 [N.Y. St. Bus. J.] 38, 39 (May- June 1996).
[FN2]. See Charles Mann, Regulating Cyberspace, Science, May 5, 1995, at 628.
[FN3]. See Dinty W. Moore, The Emperor's Virtual Clothes: The Naked Truth About Internet Culture at xiv (1995).
[FN4]. See M. Ethan Katsh, Law in a Digital World 14 (1995).
[FN5]. See Friedman & Gellman, supra note 1, at 38-39.
[FN6]. See Katsh, supra note 4, at 180 (arguing that the increasing number of contracts, information transactions, and new relationships formed over the Internet will inevitably lead to a rise in the number of online disputes); see also M. Ethan Katsh, The Online Ombuds Office: Adapting Dispute Resolution to Cyberspace (visited Feb. 27, 1998) <http:// www.law.vill.edu/ncair/disres/katsh.htm> (understanding increase in online disputes as due to: 1) the increase in the number of persons and institutions in Cyberspace and 2) the broadening of the kinds of activities and interactions that are occuring in Cyberspace); Ian Macduff, Flames on the Wires: Mediating from an Electronic Cottage, 10 Negotiation Journal 5, 10-11 (1994) (predicting a high level of conflict online because newcomers to electronic mail will be unfamiliar with the customs and usage of communication); David R. Johnson, Dispute Resolution in Cyberspace (visited Feb. 27, 1998) <http:// www.eff.org/pub/Legal/Arbitration/online_dispute_resolution_johnson.article>.
[FN7]. See Robert H. Mnookin, Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict, 8 Ohio St. J. on Disp. Resol. 235, 235 (1993); see also William L. Ury et al., Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict at xii (1993).
[FN8]. The Harvard University Library system currently lists 399 different titles dealing with the Internet ranging from issues of policy and law to how to launch a business using the Internet. Search of HOLLIS (March 23, 1997).
[FN9]. Search of WESTLAW, ALLFEDS Library, (March 23, 1997).
[FN10]. See I. Trotter Hardy, The Proper Legal Regime for 'Cyberspace', 55 U. Pitt. L. Rev. 993, 994 (1994) (stating that academic and practicing lawyers are spending large amounts of time trying to determine how existing rules of libel or copyright apply in Cyberspace).
[FN11]. See, e.g., David R. Johnson & David Post, Law and Borders--The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996); Henry H. Perritt, Jr., Dispute Resolution in Electronic Network Communities, 38 Vill. L. Rev. 349 (1993).
[FN12]. The one-text draft process represents a collaborative approach to negotiation and mediation in which one or more parties modify the same "working draft" of an agreement as they resolve the various issues. The one-text method often proves to be a more effective way of reaching an agreement than a process in which each party makes a separate "final" proposal. In this context, I use the word one-text to indicate that this is a working draft for others to modify, criticize, and build-upon and not a final proposal. See Roger Fisher et al., The One Text Tool, in The Workbook: Negotiation Workshop at Harvard Law School 80-82 (Sheila Heen ed., 1998).
[FN13]. Howard Rheingold, The Virtual Community: Homesteading on the Electronic Frontier 3 (1994); see also Lawrence Lessig, The Zones of Cyberspace, 48 Stan. L. Rev. 1403, 1403 (1996).
[FN14]. See The Well, The Well (visited Feb. 17, 1998) <http:// www.well.com/where_well.html> (describing The Well as a series of interconnected towns and "conferences" where townsfolk gather to talk: cafes, parks, classrooms, town halls, comedy clubs, and meeting rooms.).
[FN15]. See Our Square, Our Square (visited Feb. 17, 1998) <http:// www.oursquare.com> (limiting membership to students and alumni of Amherst, Brown, Columbia, Cornell, Dartmouth, Duke, Harvard, MIT, Northwestern, Princeton, Stanford, Swarthmore, the University of Chicago, the University of Pennsylvania, Wesleyan, Wellesley, Williams, and Yale).
[FN16]. See, e.g., Hardy, supra note 10, at 1010 ("Customs are developing in cyberspace as they might in any community, and rapid growth in computer communications suggests that there may be a great many such customs before long. Many of these customs conflict with "real" space customs....").
[FN17]. See Johnson & Post, supra note 11, at 1401 ("The law of any given place must take into account the special characteristics of the space it regulates and the types of persons, places, and things found there.").
[FN18]. Stephen Doheny-Farina, The Wired Community 16 (1996).
[FN19]. Cf. Henry H. Perritt, Jr., President Clinton's National Information Infrastructure Initiative: Community Regained?, 69 Chi.-Kent L. Rev. 991 (1994) (arguing that Internet communities are essentially "vertical" rather than "horizontal" meaning that the common experiences or interests tying the community together are specialized instead of multi-dimensional such as geographic proximity, community schools, and the like). But see Macduff, supra note 6, at 6, 10, 14 (noting that his experience of online mediation suggests that "while disputants... had little commitment to the kind of ongoing relationship that might make mediation both more suitable and more effective, they did have some degree of commitment to the 'virtual community' that emerges in the public communications that take place over the international electronic mail networks").
[FN20]. See Hardy, supra note 10, at 1013 (noting that "real" space courts unfamiliar with the Cyberspace community may not be able to assess what a "reasonable" person would do in a given circumstance).
[FN21]. E. Casey Lide, ADR and Cyberspace: The Role of Alternative Dispute Resolution in Online Commerce, Intellectual Property and Defamation, 12 Ohio St. J. on Disp. Resol. 193, 218 (1996).
[FN22]. See Johnson, supra note 6, at <http:// www.eff.org/pub/Legal/Arbitration/online_dispute_resolution_johnson.article> (asserting that "[d]isputes that have arisen over the networks are, demonstrably, different in character, as well as subject matter, from more traditional fights").
[FN23]. See David G. Post, Dispute Resolution in Cyberspace: Engineering a Virtual Magistrate System (visited Feb. 25, 1998) <http:// www.law.vill.edu/ncair/disres/DGP2.HTM>.
[FN24]. See Frank A. Cona, Internet Arbitration of International Commercial Disputes (visited Feb. 25, 1998) <http://www.vcilp.org/<<tilde>>fcona/arg_ art.htm> (arguing that the instantaneous transmission of information to others over any distance is one of four major aspects of Internet communication that affect the nature of dispute resolution).
[FN25]. A personal story highlights this fact. As an undergraduate, I was chair of Dartmouth's Programming Board, which allocated funding for student activities to organizations. The Board's policy was to telephone student organizations to whom we allocated funds, but to email organizations to whom we denied funding.
[FN26]. See Stevenson Carlebach, Address at Harvard Law School Negotiation 100 Class (Mar. 13, 1997). See generally Lois Gold, Influencing Unconscious Influences: The Healing Dimension of Mediation, 11 Mediation Q. 55, 55 (1993) (Gold notes that "93 percent of all communication is nonverbal....").
[FN27]. See Johnson & Post, supra note 11, at 1367 (asserting that "[g]lobal computer-based communications cut across territorial borders, creating a new realm of human activity and undermining the feasibility--and legitimacy--of laws based on geographic boundaries."); see generally Katsh, supra note 4, at 27 (suggesting that Cyberspace creates a new space).
[FN28]. See Johnson & Post, supra note 11, at 1368 (arguing that "[t]here has until now been a general correspondence between borders drawn in physical space 'between nation states and political entities' and borders in 'law space.' ").
[FN29]. See, e.g., Henry H. Perritt, Jr., Jurisdiction in Cyberspace, 41 Vill. L. Rev. 1 (1996). See generally Lide, supra note 21.
[FN30]. Joel R. Reidenberg, Governing Networks and Rule-Making in Cyberspace, in Borders in Cyberspace: Information Policy and Global Information Infrastructure 84, 84 (Brian Kahin & Charles Nesson eds., The MIT Press 1997).
[FN31]. Johnson & Post, supra note 11, at 1402; see also Harold Smith Reeves, Property in Cyberspace, 63 U. Chi. L. Rev. 761, 761 (1996).
[FN32]. See Perritt, supra note 11, at 352.
[FN33]. See Reeves, supra note 31, at 766.
[FN34]. Cf. Macduff, supra note 6, at 12 (noting that correspondents in an online conference may hide their identity through an automatic command to a list-server computer).
[FN35]. The Electronic Frontier Foundation, Action Alerts-Local, State, Non- US & Global (visited Feb. 25, 1998) <http://www.eff.org/pub/Alerts/Foreign_and_ local/>.
[FN36]. See Communications Decency Act s 502 (to be codified at 47 U.S.C. s 223(a)(1)(B) (1997)).
[FN37]. See John Goldring, Netting the Cybershark: Consumer Protection, Cyberspace, the Nation-State, and Democracy, in Borders in Cyberspace: Information Policy and Global Information Infrastructure, supra note 30, at 321, 345 (arguing that regulating Cyberspace from the outside "real" world may be impossible and suggesting that individuals residing in the medium of Cyberspace must be left to organize their relationships on their own).
[FN38]. See Katsh, supra note 4, at 50.
[FN39]. See generally Henry H. Perritt, Jr., Note on Personal Jurisdiction (visited Feb. 27, 1998) <http://www.law.vill.edu/ncair/disres/PJ2.HTM> (discussing the challenges that territorially-based jurisdictions have in securing personal jurisdiction of persons in Cyberspace); see generally Perritt, supra note 29, at 2 (1996).
[FN40]. See CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996) (holding that Patterson, a Texas attorney who never entered Ohio, is subject to personal jurisdiction in Ohio because of his contract with CompuServe).
[FN41]. Cf. Johnson & Post, supra note 11, at 1373 (noting the inability of physical authorities to stop the flow of electrons entering their borders).
[FN42]. See The Electronic Frontier Foundation, supra note 35, at <http:// www.eff.org/links2.html>.
[FN45]. See Lawrence H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier (visited Feb. 27, 1998) <http:// www.cpsr.org/conferences/cfp91/tribe.html> (proposing that an amendment be added to the U.S. Constitution to secure individual rights in Cyberspace); see also Cass R. Sunstein, The First Amendment in Cyberspace, 104 Yale L. J. 1757, 1786-88 (1995) (arguing for restraint from courts while the citizens of Cyberspace work to further define the nature of the space they inhabit); Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L. J. 869, 909 (1996) (lamenting that the Supreme Court is likely to read the Constitution into the law of Cyberspace not because that necessarily makes sense but largely because there are no well-developed alternative structures for directing our march in Cyberspace any differently).
[FN46]. See, e.g., The Electronic Frontier Foundation, supra note 35, at < http:// www.eff.org/>.
[FN47]. Cf. Ury, supra note 7, at 5-11 (discussing power-, rights-, and interest-based approaches to the resolution of conflict and suggesting that approaches using power or rights, though used more frequently, tend to be more costly and result in less optimal outcomes than processes which focus on interests to resolve conflict); Cf. Cathy A. Costantino & Christina Sickles Merchant, Designing Conflict Management Systems: A Guide to Creating Productive and Healthy Organizations 45 (1996) (noting that most dispute systems design models posit that interest-based methods of dispute resolution are less costly and more satisfactory than rights-based methods and power-based methods).
[FN48]. See generally Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 44-45 (1991) (arguing that the American dialect of rights talk performs a disservice to the public deliberation by neglecting social dimensions of personhood and by sacrificing essential notions of community, responsibility, and conversation in order to vindicate absolute rights).
[FN49]. Cf. Ury, supra note 7, at 15 (noting how determining rights or power frequently becomes a contest that damages the relationship and leads to greater recurrence of disputes).
[FN50]. See, e.g., Cona, supra note 24 (focusing more on how sovereign nations can enforce their law on the Internet than on what the interests of those who live in Cyberspace might be and whether a territorially-based legal regime would best serve those interests). But see Macduff, supra note 6, at 7- 8 (noting that in order to understand online negotiation and mediation it is essential to grasp the anthropological and practical significance surrounding the emergence of virtual communities, of transitory, multi-cultural, ephemeral collectives of individuals brought together in relatively norm-free settings, without the typical bonds of solidarity or mutual need but with all of the potential for conflict).
[FN51]. See Ury, supra note 7, at 9-10 (describing "lumping it" as dropping a claim because pursuing the dispute is either too difficult or too costly and suggesting that many engaged in a power or rights dispute tend to "lump it" when they perceive themselves as lacking the power or sophistication to win their claim).
[FN52]. See infra notes 54-56, 58-59 for more information regarding these online dispute resolution services.
[FN53]. See generally Linda R. Singer, Settling Disputes: Conflict Resolution in Business, Families, and the Legal System 1-14 (1994) (providing an overview of the advantages of an interest-based dispute resolution model and how it has grown in popularity and usage during the past twenty years in a variety of contexts).
[FN54]. The Online Ombuds Office is designed as an online office into which a disputant may enter to obtain information or employ the assistance of an ombudsman in resolving an online dispute. See The Online Ombuds Office, The Online Ombuds Office (visited Mar. 1, 1998) <http:// 126.96.36.199/center/ombuds/default/htm>; see also Mary P. Rowe, The Ombudsman's Role in a Dispute Resolution System, 7 Negotiation Journal 353 (1991).
[FN55]. The Virtual Magistrate Project can be thought of as the "arbitration adjunct" of the Online Ombuds Office. Magistrates are selected from a pool of "real world" arbitrators approved by the AAA who are also familiar with online systems and Cyberspace. See The Virtual Magistrate Project, Virtual Magistrate Handbook for Magistrates (visited Mar. 1, 1998) <http:// vmag.vcilp.org/magis/vmhdbook.html>.
[FN56]. See Mediate-Net, Maryland's On-Line Mediation Service: mediation anytime, anyplace (visited Mar. 1, 1998) <http://www.mediate-net.org>.
[FN57]. The prospect of resolving "real world" disputes by using the technology of Cyberspace raises a set of issues that have been largely unexplored and that are well beyond the scope of this paper.
[FN58]. The Janzen Group sells online ombudsman services to companies which engage in online business promising to resolve disputes with these company's customers as they may arise. See The Janzen Group, Business and Workplace Mediation and Conflict Resolution (visited Mar. 1, 1998) <http:// www.janzengroup.com>.
[FN59]. Cyberjury, a website, presents readers with the facts of "real life" cases and asks them to express their verdict based on the affidavits and facts of the parties. See Roy J. Konray, Cyberjury (visited Mar. 1, 1998) <http:// www.cyberjury.com>.
[FN60]. See Jonathan Wallace & Mark Mangan, Sex, Laws, and Cyberspace 193 (1996) ("Each new advance in the technology of communication disturbs a status quo." (quoting Ithiel de Sola Pool, Technologies of Freedom 7 (1983))); see also Singer, supra note 53, at 181 (discussing how changes in the way conflicts are resolved threaten the role of lawyers).
[FN61]. See Steven McGeady, The Digital Reformation: Total Freedom, Risk, and Responsibility, 10 Harv. J.L. & Tech. 134, 143, 145 (1996) (arguing that a moral obligation exists to bring community and cooperation to Cyberspace).
[FN62]. Cf. Costantino & Merchant, supra note 47, at 201-09 (reminding designers of dispute systems that resistance to a new system is inescapable and suggesting strategies for addressing such resistance). See generally Lessig, supra note 13 (asserting that arguments for a separate law of Cyberspace are "romantic" and that notions of Cyberspace developing a rich set of enforceable social norms on its own are unrealistic).
[FN63]. See Costantino & Merchant, supra note 47, at 227 (encouraging members of the ADR and dispute systems design community to be stewards rather than spectators because of the implications for members of the groups with which they work).
[FN64]. See The Virtual Law Firm, What is the Virtual Law Firm (visited Feb. 25, 1998) <http://www.dnai.com/<<tilde>>theirmn1/vlf_whatis.html>.
[FN65]. See Costantino & Merchant, supra note 47, at 77-78.
[FN66]. See Lide, supra note 21, at 195-96; see also Hardy, supranote 10, at 1019-20; Johnson & Post, supra note 11, at 1389-90 (describing the development of the Law of the Merchant as the most apt analogy for how law may develop in Cyberspace).
[FN67]. See Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law 10 (1983).
[FN68]. See id. at 9-12.
[FN69]. See id.
[FN70]. See Costantino & Merchant, supra note 47, at 100 (emphasizing the importance of assessing the types of disputes that exist in an organization and the types that the system will be designed to address). See also The Virtual Magistrate Project, Virtual Magistrate: Frequently Asked Questions (visited Feb. 27, 1998) <http://vmag.law.vill.edu:8080/docs/vmagfaq.html>.
[FN71]. See Macduff, supra note 6, at 10.
[FN72]. See Marc Lauritsen, Settling Differences Through Interactive Multimedia Networks (visited Feb. 27, 1998) <http:// www.law.vill.edu/ncair/disres/LAURIT.HTM> (noting that an online dispute resolution process will produce an automatic record and transcript of the conversations and serve to keep both parties honest).
[FN73]. Cf. Virtual Magistrate Project Provides Dispute Resolution in Cyberspace, 7 World Arb. & Mediation Rep. 76, 77 (1996) (statement of George Friedman, the American Arbitration Association's senior vice president) ("Given the increasing inaccessibility of the court system and the explosive growth of onlinetechnology, it is quite appropriate that an effort would be made to develop a means of resolving disputes simply and quickly online.").
[FN74]. See Tom R. Tyler, Disputes Processing Research Program: Working Papers Series 8: The Quality of Dispute Resolution Processes And Outcomes: Measurement Problems and Possibilities 22 (1988) (noting studies which show that disputants who can choose the process by which to resolve their dispute remain more committed to it and more satisfied with the results); see also Miriam K. Mills, Conflict Resolution and Public Policy at ix (1990).
[FN75]. See generally Henry H. Perritt, Jr., Why Should Practicing Lawyers be Interested in the Internet?, 443 PLI/Pat. 47 (1996).
[FN76]. See, e.g., Lessig, supra note 13, at 1407.
[FN77]. See, e.g., Johnson & Post, supra note 11, at 1378.
[FN78]. See id.
[FN79]. See Johnson & Post, supra note 11, at 1367 (noting that global computer-based communications cut across territorial borders and undermine the feasibility and legitimacy of laws based on geographic boundaries); see also M. Ethan Katsh, The Electronic Media and the Transformation of Law 53-54 (1989) (highlighting that the appearance of electronic forms of communication has threatened to undermine the faith that has been placed in the processes of law).
[FN80]. See McGeady, supra note 61, at 143.
[FN81]. See Ousted Bishop in Cyberspace, The Christian Century, April 10, 1996, at 390.
[FN82]. See id.
[FN84]. See id.
[FN85]. Cf. Richard S. Granat, Creating an Environment for Mediating Disputes on the Internet (visited Mar. 1, 1998) <http:// www.law.vill.edu/ncair/disres/granat.htm> (noting that in real life power, interests, and rights always overlap and intersect).
[FN86]. See discussion infra Part VI.
[FN87]. See generally Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes 4 (1991) ("Neighbors in fact are strongly inclined to cooperate, but they achieve cooperative outcomes not by bargaining from legally established entitlements... but rather by developing and enforcing adaptive norms of neighborliness that trump formal legal entitlements.").
[FN88]. Cf. Ury, supra note 7, at 17.
[FN89]. See The Electronic Frontier Foundation, supra note 35, at <http:// www.eff.org/>.
[FN90]. See id.
[FN91]. See Ury, supra note 7, at 69; see also Costantino & Merchant, supra note 47, at 76.
[FN92]. See Lide, supra note 21, at 217 (arguing that a bottom-up, flexible method of dispute resolution is more suitable to the dynamic realm of Cyberspace than sole reliance on top-down judicial or statutory authority that might stifle the development of a unique Internet culture or custom).
[FN93]. See generally Lea Brilmayer, Transforming International Politics: An American Role for the Post Cold War World, 64 U. Cin. L. Rev. 119, 125 (1995) (observing that treaties such as the Non-Proliferation Treaty, GATT, or those limiting environmental pollution have garnered almost unanimous support of countries worldwide by being framed as the politically acceptable and responsible choice for national governments).
[FN94]. In essence, these goals dovetail with the six basic principles laid out by Ury, Brett, and Goldberg in their book on dispute systems design entitled Getting Disputes Resolved: Designing Systems to Cut the Cost of Conflict, supra note 7, at 42.
[FN95]. See Costantino & Merchant, supra note 47, at 129 (asserting "[e] ffective design architects embrace the KISS principle... keep it simple, stupid").
[FN96]. See discussion infra Part II.
[FN97]. Arguably, the greatest asset of the American judicial system is not that it resolves disputes fairly, efficiently, or equitably but rather that it retains legitimacy in the eyes of those who regularly use the system and in the eyes of the public at-large. Likewise, the jury system remains strong in the U.S. not so much because we know it reaches "correct" verdicts but because there is a general consensus that verdicts which are reached by juries are verdicts in which we can believe.
[FN98]. See Costantino & Merchant, supra note 47, at 168 ("suggest[ing] that the evaluation process be created at the beginning of the conflict management design effort, not at the end.").
[FN99]. See Trakman, supra note 67, at 8 (stating that "[t]he needs of sea- borne traffic led to" creation of the Law Merchant, reflecting "the ultimate move away from local law towards a universal system of law, based upon mercantile interests").
[FN100]. See Johnson & Post, supra note 11, at 1379 (asserting that "[t] reating Cyberspace as a separate space to which distinct laws apply should come naturally").
[FN101]. See generally Frank E.A. Sander, Alternative Methods of Dispute Resolution: An Overview, 37 Fla. L. Rev. 1, 12-13 (1985) (describing the multi-door courthouse model as one in which disputants would first present their dispute to a clerk who would then refer it to one of a host of dispute resolution methods ranging from adjudication to mediation to an ombudsman); Charles Ruhlin & Harry N. Scheiber, Umpiring the Multi-Option Justice System, 80 Judicature 58, 58 (1996).
[FN102]. For cases outside the jurisdiction of Cyberspace, the DDS would need to communicate to the disputants that the information in the chat room may be discoverable in the territorial jurisdiction to which the case is referred. Therefore, it is important that the DDS communicate to the disputants that confidentiality cannot be guaranteed until the DDS recommends an online dispute resolution process.
[FN103]. See Ury, supra note 7, at 52 (describing one of the primary dispute systems design principles as building loops back to negotiation and mediation from a "rights contest").
[FN104]. Needless to say, some of the customs that arise in Cyberspace are influenced by territorially-based law. I am suggesting, however, that because Cyberspace cuts across so many jurisdictions, to apply territorial-law per se would undermine the credibility of the online system. Instead, online arbitrators should consider real-space law only to the degree that it has influenced the culture and behavior of persons in Cyberspace.
[FN105]. See Ury, supra note 7, at 64 (noting that a fine procedure will likely fail if proper attention is not given to assuring that there are sufficient skills and resources to make it work).
[FN106]. See Sander, supra note 101, at 13-15 (recognizing that the gatekeeping function of the multi-door courthouse would require a highly skilled intake worker and suggesting the following criteria in determining the suitability of various dispute mechanisms: the nature of the case, the relationship of the disputants, and the size and complexity of the claim).
[FN107]. For example, Harvard Law School is one of a small number of law schools offering basic negotiation, mediation, and arbitration classes as well as advanced dispute systems design and interdisciplinary conflict resolution classes which might serve as a source of potential DDS candidates.
[FN108]. See Katsh, supra note 79, at 53-54.
[FN109]. See The Virtual Magistrate Project, supra note 55, at <http:// vmag.law.vill.edu:8080/magis/vmdbook.html>.
[FN110]. See Reeves, supra note 31, at 778 (arguing that in Cyberspace system-level boundaries provide a convenient analogy to physical boundaries).
[FN111]. See Henry H. Perritt, Jr., Electronic Dispute Resolution (visited Mar. 1, 1998) <http://www.law.vill.edu/ncair/disres/PERRITT.HTM> (noting that property-based and consensual dispute resolution were given to the proprietors of the colonies in their individual charters with the understanding that only serious cases would be transferred to the royal courts in England).
[FN112]. One should not underestimate the severity of these sanctions. In a world where more and more business and communication will be carried on over the Internet, suspension from "membership" or "citizenship" in Cyberspace as well as permanent banishment will be considered serious and costly punishments for individuals, businesses, and institutions alike.
[FN113]. See Costantino & Merchant, supra note 47, at 161 (noting the necessity, impact, and importance of determining how costs will be met in any ADR system).
[FN114]. Determining the exact amount of the surcharge would require some empirical and statistical work to ascertain the expected frequency, duration, and cost of resolving online disputes.
[FN115]. An example of a price that all in Cyberspace pay for unresolved or badly solved conflict occurred when German prosecutors declared more than 200 Internet newsgroups illegal under German criminal law. In response, CompuServe decided to censor these newsgroups even though later the German authorities said that CompuServe decided which groups to censor in order to protect themselves from the risk of censoring acceptable Web sites. The result is that this overbroad regulation has restricted users from potentially legitimate newsgroups. See The Electronic Frontier Foundation, supra note 35, at <http:// www.eff.org/>
[FN116]. See Costantino & Merchant, supra note 47, at 221-22.
[FN117]. David Nimmer, Brains and Other Paraphernalia of the Digital Age, 10 Harv. J.L. & Tech. 1, 3 (1996).
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