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legal.online, June 1996
Copyright 1996 Robert J. Ambrogi
Cyberspace Becomes Forum For Resolving Disputes
By Robert J. Ambrogi
Should Cyberspace serve as a forum for resolving disputes? Can arbitration, mediation and other alternative forms of dispute resolution be conducted entirely online?
These questions are being regularly debated on Internet discussion lists such as Cyberia, a list devoted to the law and policy of computer communications, and Dispute-res, a list for ADR professionals. They were the topic of a Washington, D.C., conference last month sponsored by the National Center for Automated Information Research. (You can read the conference papers online at: http://www.law.vill.edu/ncair/disres.)
Yet even as lawyers and scholars continue to debate the future of online ADR, three organizations are already making it a reality. In doing so, they are creating new grounds for controversy.
The most ambitious of the three is the Virtual Magistrate, http://vmag.law.vill.edu:8080. A pilot project of the NCAIR, the Cyberspace Law Institute, the American Arbitration Association and the Villanova Center for Information Law and Policy, its goal is to provide a forum for resolving Cyberspace disputes quickly and easily.
VM provides for online arbitration and fact-finding involving complaints submitted by electronic mail or via its site on the World Wide Web. Organizers envision that Internet users, system operators and others will submit complaints related to Internet or online messages, postings and files.
Issues appropriate for the VM might include copyright or trademark infringement, misappropriate of trade secrets, defamation, fraud, deceptive trade practices, inappropriate materials, invasion of privacy, and other wrongful content.
An impartial magistrate is assigned to each complaint. Proceedings take place through electronic mail. The goal in each case will be for the magistrate to reach a decision within 72 hours. Information on decided cases will be publicly available on the Web.
There is a $10 fee to submit a dispute.
The VM maintains a pool of neutral arbitrators with experience in the law and use of computer networks to serve as magistrates. They are selected jointly by the AAA and the CLI.
The pilot is funded by a $75,000 grant from NCAIR, a non-profit organization engaged in the study and application of technology to the legal and accounting professions. Villanova maintains the online repository of complaints, decisions and documents.
Ruling Under Fire
The first decision to come out of the VM project was issued just last month, and, as may be expected on the Internet, it quickly came under attack.
An arbitrator appointed under the VM project ruled that America Online should remove from its service a "junk e-mail" advertisement offering the sale of e-mail addresses.
The unsolicited e-mail, distributed in bulk to AOL members by Email America Corp., violated AOL's service agreement with its subscribers, the arbitrator found.
The decision quickly came under fire on the Internet discussion list Cyberia, where some members questioned its fairness, noting that the complainant, James E. Tierney, is affiliated with the VM project as a advisor on consumer fraud issues, and one of the respondents, Email America, did not participate in the proceedings.
"I just can't wait to see some more default judgments from a tribunal with no sovereign authority. Kind of reminds me of the Montana `Freemen' common law courts," wrote Dan Burk, a law professor at Seton Hall University.
But David Johnson, co-director of the CLI, defended the decision. "[I]f you are looking only to tribunals possessing `sovereign authority' to bring `law' to cyberspace, you're looking in the wrong place," he wrote.
"Maybe there is no need to begin thinking about what kinds of dispute resolution mechanisms might best serve here and to begin experimenting with alternative models, but I haven't seen that position articulated here," Johnson continued. "And if there is need for that, then by all means let's talk about how you might redesign the VM ... to get where you want it to go; just pointing out why it's not going to work just doesn't strike me as real productive."
The case was decided by Virtual Magistrate N.M. Norton Jr., a partner with the law firm Wright, Lindsey & Jennings in Little Rock, Ark., and a former member of the U.S. National Information Infrastructure Advisory Council.
The text of the decision is available from the VM Web site.
First In The Field
While the VM may be the most controversial provider of online ADR, it was not the first. That honor belongs to Global Arbitration Mediation Association, http://www.gama.com.
GAMA offers arbitration and mediation of disputes over the Internet or, if parties prefer, in a traditional face-to-face setting. It allows for complaints to be filed and served by e-mail, and its "hearings" consist of affidavits and testimony submitted using either e-mail or Internet relay chat (IRC), a means of communicating over the Internet using real-time text messages.
Its Web page includes a FAQ (frequently asked questions) detailing the arbitration process and also has a library of related forms and sample arbitration clauses.
Fees vary depending on the nature and scope of the dispute. For claims of less than $25,000, the filing fee is 10 percent of the claim amount. This includes the first three hours of neutral time. Additional time costs from $150-$250 an hour.
The Janzen Group, http://www.janzengroup.com, is the latest entrant in the field of online ADR providers. This San Francisco-based company provides a range of traditional ADR services to businesses. It recently began offering online mediation, conducted via e-mail or on a private IRC channel.
For mediation over IRC, The Janzen Group provides a password-required channel where the disputing parties and the mediator can "meet" electronically. The process allows the parties to engage in online dialogue as well as to exchange documents, files and photographs.
Fees for the service vary according to the size and nature of the case.
Robert J. Ambrogi, a lawyer in Rockport, Mass., is editor of legal.online, a monthly newsletter about the Internet published by Legal Communications Ltd., Philadelphia. He can be reached by e-mail at email@example.com or by phone at (978) 546-7898.
Other ADR Sites On The Internet
ADR is the subject of a host of other sites on the Internet. Here are a sampling:
The AAA's Web site is the pre-eminent ADR resource on the Internet. Here you will find information on ADR in labor relations, employment, commerce, the construction industry, and international disputes, as well as the text of AAA rules, samples of several AAA forms, and a number of useful articles.
This non-profit organization, "dedicated to promoting the constructive resolution of conflict," sponsors online discussion forums, lists jobs and events, provides online access to journals and newspapers, and offers information about related resources and educational programs.
SPIDR is a professional association of mediators, arbitrators and dispute resolution professionals.
This is an exhaustive site containing the full text of WIPO's rules, information on its services, recommended contract clauses and submission agreements, and listings of conferences and training programs.
The ICC is described as the " leading body for the resolution of international commercial disputes by arbitration." This site has general information about the ICC, its rules and publications.
The FJC has several publications pertaining to ADR available for downloading.
Among commercial ADR sites, this one stands out for its offerings of useful articles and information relating to ADR in telecommunications and international trade. Of particular interest is the article, "The Use of Technology in Conflict Resolution," a paper presented at the European Conference on Peacemaking and Conflict Resolution by Claudine SchWeber, a professor at the University of Maryland Graduate School of Management and Technology.
These sites have information about ADR in specific settings:
Studies and Training
PON's site has information on research projects, training and educational opportunities, teaching materials and publications available for ordering, and journals and newsletters published by PON or its affiliated projects.
Books And Articles
Think tank RAND has produced a number of studies relating to ADR. Follow the "Publications" link to find a searchable index of these studies, including abstracts and ordering information.