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Dispensa al corso di Teorie e tecniche della trasformazione dei conflitti della Prof.ssa Maria Luisa Maniscalco. Trattasi del saggio di Haitham A. Haloush e Bashar H. Malkawi dal titolo "Internet Characteristics and Online Alternative Dispute Resolution" riguardante il ruolo degli strumenti di comunicazione elettronica all'interno... Vedi di più

Esame di Teorie e tecniche della trasformazione dei conflitti docente Prof. M. Maniscalco

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Spring 2008] Internet Characteristics 339

tool that is available twenty four hours a day, seven days a week, that

encourages both sides to realistically evaluate their dispute in ab-

sence of personality conflicts and posturing. Indeed, because the com-

puter screen separates the parties, they cannot focus on each other’s

presence. Instead, they are forced to focus on the substantive issues

on the screen. This will reduce the tension level between the

29

parties.

Moreover, participants in e-mediation do not need to respond im-

mediately as they are compelled to do in face-to-face discussions. Par-

ticipants can more thoroughly consider proposals and develop

options. One’s immediate response, as a participant or mediator, in

face-to-face mediation is not always one’s best response. In fact, most

mediators purposefully break into caucus because they know the ben-

efits of allowing each side the ability to think without the penetrating

gaze of the other side, and the impact of this on reducing the imbal-

ance of emotional power between the parties. The internet offers this

opportunity more conveniently. This ultimately increases the agree-

30

ment-reaching efforts.

Furthermore, disputants should be able, as much as possible, to

represent themselves equally in any dispute resolution mechanism,

including mediation. Providing equal access to the storytelling pro-

cess is a critical part of the mediator’s job. Online mediation grants

both parties an equal opportunity to achieve this goal. Virtual media-

tion may offer an opportunity to avoid some possible biases occa-

sioned by face-to-face mediation because online mediation has its

implication on equality between disputants. For example, in offline

mediation, usually there is a need to meet with one party more than

the other, which is made very complex by the requirement of equal

time allotted to both parties. Online meeting, however, can progress

concurrently with the joint discussion in e-mediation. Such interac-

tion is impossible in a face-to-face mediation. People who are physi-

cally attractive, articulate, well-educated, members of a dominant

ethnic, racial, or gender group, or people who are more glib or persua-

sive than their co-disputants may find this advantage reduced in

31

electronic mediation.

29. Benjamin G. Davis et al., The First International Competition for Online Dis-

19 J. I ’ A . 379, 389 (2002).

pute Resolution: Is This Big, Different and New, NT L RB

Id.

30. See R , supra note 10, at 259; see also Richard Granat, Creating an Envi-

31. R

ULE

ronment for Mediating Disputes on the Internet (May 22, 1996) (working paper for

available at http://

the NCAIR Conference on Online Dispute Resolution), &

www.umass.edu/dispute/ncair/granat.htm (last visited Apr. 15, 2008); T YLER

, supra note 10.

B R

RETHERTON

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340 Harvard Negotiation Law Review [Vol. 13:327

Online communication may well change ingrained conflict dy-

namics including dominance and intimidation. It can radically im-

prove some individual’s capacity to present themselves and negotiate

in the strongest possible fashion, and enable people to overcome bar-

riers that condemn many to insecurity, ineptitude, and ineffective-

32

ness during face-to-face meetings.

1.5. Internet Characteristics and Arbitration

Arbitration is a private adjudicatory procedure in which the arbi-

trator, or tribunal of arbitrators, has the power to impose a final and

legally binding decision (the award) which can be enforced by the par-

ties. The arbitration award is meant to be enforceable through coer-

cive power if necessary. A valid arbitration award can be registered

with a court and thereafter enforced like a court judgement. Although

less common, there is non-binding arbitration (allowing parties to

seek further redress in a court of law if a party feels a just decision

has not been reached), conditionally binding arbitration (where the

arbitrator’s decision is binding on the business, for example, only if

the consumer agrees to the decision), or partially binding arbitration

(binding when accepted by one or both parties). The fact that the par-

ties agree to be legally bound by the arbitrator’s award distinguishes

33

arbitration from mediation.

In an international context, arbitration takes place within a well-

established international legal framework and is based on estab-

lished commercial practices. International commercial arbitration

system works through the interplay of three layers of legal regula-

tion. The first layer is the private law of parties’ contract as embodied

in the arbitration agreement. This includes, among other things, the

laws and procedures governing the arbitration, the power of arbitra-

tor(s), the location of arbitration, and the effect of arbitration awards.

Virtually every aspect of arbitration is definable in an arbitration

agreement. An arbitration agreement also can provide for one or mul-

tiple arbitrators, provide the rules of evidence before the arbitrator,

allow or preclude discovery, define the nature of pleading, define the

nature of hearing, set time limits for party’s presentation and arbi-

tral decision, and deal with questions concerning the arbiter’s compe-

tence, appointment, resignation or removal. The second layer of legal

regulation is the national arbitration law. A national arbitration law

32. See R , supra note 10, at 260. R

ULE

33. Alan Scott Rau, Contracting Out of the Arbitration Act, 8 A . R . I ’ A .

M EV NT L RB

239 (1997).

225,

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Spring 2008] Internet Characteristics 341

defines the scope of permissible arbitration within the country, and

renders arbitration agreements within this scope valid. Most nations

have generally similar national arbitration laws that ensure harmo-

nization of enforcement across jurisdictions. Finally, the third layer

of legal regulation is the international enforcement treaties. By far

the most important legal instrument regulating international arbi-

tration is the New York Convention on the Recognition and Enforce-

ment of Foreign Arbitral Awards of 1958, which almost every nation

has signed. The Convention obligates the national courts of signatory

states to recognize and enforce arbitration agreements and awards,

34

subject to limited exceptions.

The process of arbitration is an old one. The fact that it is still in

use today proves that it is a viable method of dispute resolution. But

although arbitration is an old dispute resolution mechanism, it has

always demanded innovation. It has always required arbitrators to

be both aware of and responsive to the changing needs of its users

over time. Today, the development and ubiquity of e-commerce repre-

sents a new challenge. It is interesting to recall the Parliamentary

debate over the Arbitration Bill 1996, which becomes the English Ar-

bitration Act 1996. MP John Taylor (the Minister for Competition

and Consumer Affairs) said:

The Bill will also help to strengthen the competitiveness of the

arbitration industry. I feel sure that as well as attracting arbi-

tration business from companies here, the Bill will enhance the

attractiveness of London as a venue for international arbitra-

tion. International arbitrations are a lucrative source of foreign

earnings, but the business is highly mobile. I am confident that

the Bill will do much to give London a more secure position in

that competitive world and, indeed, advance London as the capi-

35

tal of the arbitration world.

While referring to MP John Taylor (the Minister for Competition

and Consumer Affairs), MP Stuart Bell said:

In the global economy; in the age of the internet; in an age when

communication spans the planet with such rapidity and some-

times, with such force; and in an age of domestic and interna-

tional issues-to which the under-secretary referred-it is clear

36

that our arbitration services need to be able to adapt.

34. G B , I C A U S :

ARY ORN NTERNATIONAL OMMERCIAL RBITRATION IN THE NITED TATES

M 18 (1994).

C

OMMENTARY AND ATERIALS

. D ., H.C. (6th ser.) (1996) 86.

35. 279 P

ARL EB

36. Id. at 88.

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342 Harvard Negotiation Law Review [Vol. 13:327

The electronic arbitration process begins typically when a claim-

ant registers with an online arbitration provider, which offers elec-

tronic arbitration. In some cases, an OADR link can be placed on the

electronic business web site, informing users that by clicking on that

link, they can fill out a complaint form. If the parties cannot agree

among themselves, the OADR provider appoints an arbiter. The arbi-

ter uses the information provided by the claimant to contact the de-

fendant and invite him or her to participate in OADR proceedings.

Then, the parties begin the online hearing by clarifying the issue in

the case, and present their evidence. After the hearing is closed, the

electronic arbitrator must reach a decision and render an award

within certain time limits. The final outcome of the e-arbitration pro-

37

cess would be an award imposed by the third party.

Although arbitration is largely a process in which information is

obtained and evaluated-unlike mediation, which generally involves a

complicated series of interactions between neutrals and parties-arbi-

tration is a much less complex communications process. Arbitration

proceedings may be based only on the exchange of pleadings, evi-

dence, and other written stages. The human factor may not be impor-

tant in online arbitration as the face-to-face hearing may not even be

necessary. Besides, whereas mediation seeks to improve communica-

tion between the parties and therefore requires sophisticated tools of

communication, adequate software that allows positions to be stated

and documents to be shared may provide a sufficient frame for online

38

arbitration.

That said, it is important to recognize that, if the appropriate

tools of communication in arbitration are unavailable and the rele-

vant arguments and evidences cannot be adduced by other appropri-

39

ate means, the arbitration runs the risk of violating fair process.

1.6. Internet Characteristics and Third Party Neutrals

In ADR, there is a flexible process of receiving and evaluating

information, such as which party to meet with first, what to say to

each party, and how to frame and reframe information provided to

each party. Generally, the flexibility of ADR allows greater discretion

40

in case management for the third party neutral.

37. M. Scott Donahey, Current Developments in Online Dispute Resolution, 16 J.

’ A . 115, 124 (1999).

I

NT L RB & R , supra note 11, at 119.

38. K R

ATSH IFKIN

39. A R ., L P I C A

LAN EDFERN ET AL AW AND RACTICE OF NTERNATIONAL OMMERCIAL R-

311 (1999).

BITRATION & R , supra note 11, at 8.

40. K R

ATSH IFKIN

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Spring 2008] Internet Characteristics 343

However, case management in online ADR is a delicate area be-

cause the online third party neutral must earn his or her authority

from the parties. This is often procured through natural charisma.

This trait is difficult to communicate online without seeing a person.

Moreover, the third party neutral often relies on ascertaining the ve-

racity of parties by their appearances and demeanors. Such visual

clues may be absent on the internet. Furthermore, it is not unusual

in ADR to reach a time when settlement is near, and the third party

neutral presses on to preserve momentum. Online ADR, however,

may permit the parties to disengage, rethink, and perhaps change

their minds, and this may hinder settlement. Thus, online third party

neutrals must be cognizant of this reality and attempt to keep the

parties engaged and maintain constant communication. And finally,

asynchronous online communications can cause frustration where

41

one party is not available online.

People tend to have an assumption that e-mails, for instance, are

read soon after they are sent. When e-mailing, people tend to behave

as if they are in a synchronous situation when in fact they are not.

This means that any delay in responding can seem provocative. Thus,

online third party neutrals must be cognizant of this reality and

learn to control information flow. If such issues are not managed

carefully, excessive time between communications can have an inten-

42

sifying effect where parties become less likely to achieve resolution.

That said, the elimination of physical meetings will increase the

third party neutral’s case management abilities since he or she can

take advantage of the parties’ separateness to reframe and perhaps

lower the tension level between parties. In OADR, such flexibility of-

fers huge advantages to online third party neutrals, in terms of free-

ing them from time and space constraints. Technology could be seen

as an influence on the process of communication which adds value to

the third party neutral and thus does more than simply deliver the

43

expertise of the human third party across the network.

Moreover, the opportunities for using the virtual capabilities of

electronic media in law-related processes are enormous. For instance,

computer facilitated charts, figures, graphs, scales, tables, and dia-

grams can be utilized in OADR proceedings. This could amount to the

facilitation of the whole process since it allows otherwise static

images to be manipulated in various ways for emphasis or persuasive

41. R , supra note 10, at 82. R

ULE

42. K & R , supra note 11, at 141. See Bargh, supra note 28, at 4; R

ATSH IFKIN

Thompson, & Nadler, supra note 26, at 113. R

43. See R , supra note 10, at 71; see also, Davis, supra note 29. R

ULE

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344 Harvard Negotiation Law Review [Vol. 13:327

effect. A certain portion of a diagram, which is an otherwise static

exhibit, can be highlighted, zoomed in upon, or emphasized through

colors, arrows, etc. The information itself can be presented using

other media as well, including video, images, sound, and animation.

Thus an electronic bundle of legal documents will be more useable

44

and more expressive than their paper counterparts.

Furthermore, the use of computer technology to search for spe-

cific words and phrases can make it easier for the third party neutral

to find where a participant(s) is addressing a particular issue in his

or her comment. The “word search” puts all of the information that

has been gathered in the dispute at the fingertips of the third party

neutral so that it can be used most effectively to see key obstacles to

45

agreement and move the discussion forward.

Also, because submissions transmitted electronically by parties

are recorded automatically by the technology, OADR allows the third

party neutral to carefully document each stage of negotiation. This

results in easy and centralized management of cases, and similarly

allows disputants to check the status of their dispute at any point

from anywhere. And whereas printed document bundles have occa-

sional internal cross-references, which readers themselves have to

pursue while reading, electronic document bundles will be linked to

one another by using hypertext technology, so that users will navi-

gate around electronic bundles as though they were single sets of in-

formation. This linkage of relevant documents to one another will

enable users to browse across pleadings and evidentiary materials.

Also, the use of computer technology enables users to see the lan-

guage of prior drafts of a document, usually crossed out with a line

and displayed in a different color, alongside the new language being

suggested by the other side. This is a good example of how technology

can simplify tasks that can be very complicated and aggravating in

the offline world. And finally, unlike paper contracts and agreement,

the ultimate electronic outcome of OADR can be a dynamic. It can

connect the parties to each other and, if desired, through hyper tex-

tual documents, to other people and to other sources of information in

46

ways that are difficult to imagine otherwise.

44. K , supra note 5, at 125. R

ATSH

45. Fred Galves, Where the Not-So-Wild-Things Are, 13 H . J. L. & T . 161,

ARV ECH

178 (2000).

46. See R E. S , T L , E T ,

ICHARD USSKIND RANSFORMING THE AW SSAYS ON ECHNOLOGY

L M 138 (2000); see also R , supra note 10, at

J R

USTICE AND THE EGAL ARKETPLACE ULE

260; S. Hardy, Online Mediation: Internet Dispute Resolution, 9 A D .

USTRALIAN ISP

. J. 216, 221 (1998).

R

ESOL

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Spring 2008] Internet Characteristics 345

Third Party Neutrals and Online Mediation-Arbitration

1.6.1.

The ADR settlement process can proceed from less to more for-

mal dispute settlement mechanisms. In this gradual approach, for

disputes that cannot be resolved using mediation, the parties would

be required to have their case heard by an arbitrator. Mediation,

which is less hostile than arbitration, is not necessarily an alterna-

tive to arbitration but may be the first part of a two-stage process. By

the same token, given that no resolution can be guaranteed in media-

tion, arbitration is viewed, in this context, as a backup effort to re-

solve disputes that parties fail to resolve in mediation. This hybrid

process, which falls between mediation and arbitration, is called me-

diation-arbitration or “med-arb”. Accordingly, the med-arb system in-

tegrates the interest-based approach of mediation, with the power-

47

based role of arbitration.

However, the neutral’s role in such arrangements should be con-

sidered carefully and in a balanced way because, under hybrid re-

gimes, the decision-making process becomes complex and may stall

the resolution. Therefore, such a role should not be confined to per-

suading the parties to reach an agreement, as a mediator does, nor

should it be confined to imposing a settlement on the parties, as an

arbitrator does, but rather to expressing a firm position concerning

settlement of the dispute. In other words, such a role should facilitate

dialogue between the parties to a dispute (mediation) and, if neces-

sary, act as a legal institution called in to help those parties

(arbitration).

In mediation-arbitration, the neutral’s role can be difficult. He or

she needs to strike the right balance between the two processes: me-

diation, built on a voluntary nature, and arbitration, built on a bind-

ing nature. The need for balance is doubled by a conceived difference

between application of fairness when arbitration is involved and ap-

plication of fairness when mediation is the process. Such a task is not

easy by any means.

Moreover, the idea of the same individual acting as both a media-

tor and then an arbitrator gives serious misgivings. In view of the

confidential and prejudicial information during the mediation pro-

cess, it is generally considered that the mediator would be compro-

mised to then convert himself into an arbitrator to make a decision on

the merits. In these circumstances many parties would not be fully

open and frank with the mediator for fear of being prejudiced at the

47. Paul Newman, Mediation-Arbitration (Med-Arb): Can it Work Legally?, 60

3, 173, 174-76 (1994) See also Bordone, supra note 8, at 177.

A R

RBITRATION

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346 Harvard Negotiation Law Review [Vol. 13:327

arbitration stage. From this perspective, because of the nature of dis-

closures and the interaction that takes place in the mediation, arbi-

tration should not be offered by the same impartial that offers

mediation services. If there is an attempt to mediate a case that is

unsuccessful and is then arbitrated, there should be two different

neutrals unless the parties agree to use the mediator as an

arbitrator.

If the internet is utilized in mediation-arbitration, it is called on-

line mediation-arbitration or online med-arb. Unfortunately, the neu-

tral’s role in online med-arb is not conceptualized clearly by OADR

SquareTrade, an OADR provider, it has

providers. For example, in

been stated that mediators try to resolve the problem through online

mediation. If that does not lead to a satisfactory result, parties can

ask the mediator to recommend a solution based on each parties’ po-

48 In substance, this

sition and on principles of fundamental fairness.

means that the mediator no longer mediates, but steps into the role of

SquareTrade failed to notice that.

arbitrator. However,

1.6.2. Third Party Neutrals and the Use of Software

Adequate software could be a necessary, indeed indispensable,

element for online interactions to be successful. Software is the ingre-

dient that provides the electronic medium with its architecture and

functionality. It is software that allows the existence of effective dis-

pute resolution systems online. From this perspective, OADR struc-

ture and process can be improved and enhanced like other software.

It is necessary to understand that it will be the emergence of appro-

priate software that will allow OADR to flourish. Therefore, there is a

need for further work to refine concepts of electronic discussion, and

the tools for facilitating such discussions, as opposed to a general dis-

cussion without any intended concrete results. In other words, the

contribution made by the software should be analyzed in terms of its

ability to translate the dispute resolution process to a particular me-

49

dium, i.e., the internet.

If third party neutrals have different tools in front of them in the

form of software, then they can control the online environment. They

may decide advantages lie in caucusing, giving the floor to a party to

speak uninterrupted, or looking for consensus evaluation on key is-

sues. It has been said that if an online third party neutral does not

know how to manage the online platform that is used to work with

48. Square Trade Dispute Resolution: Learn More, supra note 20. R

49. See Katsh et al., supra note 22, at 705, 719-20. R

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Spring 2008] Internet Characteristics 347

the parties, and if he cannot effectively use multiple online caucus

spaces as compared to offline joint discussion spaces, it does not mat-

50

ter how well he can engage in face-to-face active listening.

In the meantime, there is some powerful software that has so-

phisticated information processing capabilities that may be utilized

by online third party neutrals. Such software enhances the ability of

parties and neutrals to interact online and allows parties and neu-

trals to identify interests and assess priorities in disputes. Then, such

software calculates resolutions that may provide each side with more

than they themselves might be able to negotiate.

1.7. Conclusion

The potential for the use of information technology in Alternative

Dispute Resolution is considerable. Information technology might im-

prove and even transform ADR. The internet and the World Wide

Web are fundamentally changing the nature of communications and-

since ADR is essentially a complex process of information manage-

ment, information processing, and communication-are likely to exert

a massive influence on the development of ADR. Consequently, ADR

will be subject to technological limitations as well as advances.

The internet can have an obvious impact on ADR in two quite

different ways. First, it can be used to automate existing practices.

Second, it can be used to innovate, bring about changes, and intro-

duce new ways of working and carrying out tasks. Many of the most

substantial and beneficial influences of information technology in Al-

ternative Dispute Resolution will come from innovation rather than

automation. Consequently, any limitation in OADR is not inherent in

the internet itself as a tool, but rather it is inherent in the users’

ability to adapt this tool for the use of ADR in cyberspace.

The question is not so much whether to use the internet or not to

conduct the proceedings of ADR, but how we can best integrate online

communication strategies to support the highest level of participants’

involvement and to enhance their ability to reach agreement.

When presented with a new medium such as the internet, one

should not simply translate the ADR process into cyberspace. This

would be wrong. Instead, OADR should deploy the logic underpin-

ning the prevalent technology to make ADR more efficient and effec-

tive for all users in cyberspace.

50. See R , supra note 10, at 242. R

ULE


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Dispensa al corso di Teorie e tecniche della trasformazione dei conflitti della Prof.ssa Maria Luisa Maniscalco. Trattasi del saggio di Haitham A. Haloush e Bashar H. Malkawi dal titolo "Internet Characteristics and Online Alternative Dispute Resolution" riguardante il ruolo degli strumenti di comunicazione elettronica all'interno dei meccanismi di risoluzione delle controversie.


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Corso di laurea: Corso di laurea magistrale in relazioni internazionali
SSD:
A.A.: 2010-2011

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Teorie e tecniche della trasformazione dei conflitti e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Roma Tre - Uniroma3 o del prof Maniscalco Maria Luisa.

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