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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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328 Harvard Negotiation Law Review [Vol. 13:327

order to resolve commercial disputes that arise from the use of the

internet. Neutral private bodies operate those proceedings under

published rules of procedure.

OADR can be efficient in that it encourages the resolution of dis-

putes in the environment within which the dispute arose. This might

give credit to the whole process. However, inevitable questions will

arise: Is there any relationship between ADR characteristics and in-

ternet characteristics? Do internet characteristics affect ADR and

how? Do internet characteristics impose limited choice on ADR?

In response, this paper will explore the nature of OADR and how

the novel qualities of the internet are shaping it. In order to do so, it

is important to examine internet characteristics and their implica-

tions for ADR, analyze the constraints and opportunities when one

intervenes at a distance, and study the role and function of the World

Wide Web in such process. Therefore, the main methods of OADR-

online mediation and online arbitration-will be presented here in or-

der to analyze how far traditional ADR methods must be adapted in

cyberspace so that what may not be possible to duplicate in cyber-

space can be redesigned to enhance equitable dispute settlement. Af-

ter that, this paper will present the role of online technology in the

improvement of the role of third party neutrals in OADR in order to

analyze how far traditional techniques of third party neutrals must

be adapted in cyberspace, so that what may not be possible to dupli-

cate in cyberspace can be redesigned in order to enhance equitable

dispute settlement.

It must be noted that there will be special references to the impli-

cations of OADR upon English litigation. Such implications have to

be analyzed because they constitute a reference point for the assess-

ment of the quality of justice of a given OADR provider and provide a

framework for reflecting upon the general requirements of fair pro-

cess in OADR. As a result, the priority in this research is towards the

implications of OADR on the United Kingdom and English litigation.

The default is the English law where it is well developed, appropri-

ate, and constructive. In the United Kingdom, the encouragement of

electronic commerce is a matter of public policy. The United Kingdom

government is enthusiastic about developing the potential for elec-

tronic transactions, partly as a method of delivering government ser-

vices, and partly as the basis for promoting competition and economic

growth. It appears that there is now a strong political imperative in

the UK to prompt various actions that will create trust, reliance, and

confidence in doing business over the internet. The strategy of the

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Spring 2008] Internet Characteristics 329

UK government is to make the country the best place in the world for

1

e-commerce.

1.2. Internet Characteristics

There is a strong reason to believe that the differences between

the internet and prior communication technology are much greater

than the differences between pre-and-post telegraph technologies,

which reduced communication time from weeks to minutes, or be-

tween pre-and-post telephone technology, which dramatically re-

duced the cost and enhanced the frequency of trans-jurisdictional

communication. Indeed, the internet is more than just another com-

munication medium like the telephone, telegraph, fax or mail. While

technically forming only the most recent development in a long series

of technological innovations, the internet forms a complex network

that provides it with novel system characteristics, distinguishing it

2

from other modern forms of media.

Although other forms of modern media together display many in-

dividual features of the internet, none of them alone incorporates all

of them. Generally, there are four major differences between the in-

ternet and other communication mediums.

First, the internet is inherently an easily accessible global mar-

ket with an unprecedented variety of goods and services. Consumers

can shop around the clock from merchants around the world. Like-

wise, businesses can reach customers world-wide quickly and at low

cost. Global networks and electronic commerce, at high speed and low

cost, are presenting an unparalleled opportunity to individuals and

companies. They have the ability to transact twenty-four hours a

day, seven days a week, regardless of constraints of distance, time

zones, local cultures, geographic borders, and legal frameworks. For

example, the numerous online auction sites that match buyers and

sellers from disparate geographic locations would have been unthink-

able without a vast network through which multiple parties share

3

information and communicate in various ways to reach agreement.

1. For a full account on UK government’s strategy in relation to the encourage-

ment of e-commerce, see Office of the e-Envoy, http://archive.cabinetoffice.gov.uk/e-

envoy/index-content.htm (last visited October 1, 2007).

Against Cyber-Anarchy, 65 U. C L. R . 1199, 1240

2. Jack Goldsmith, HI EV

(1998). Dispute Resolution in International Electronic Commerce,

3. Veijo Heiskanen,

’ A . 32, 36 (1999).

16 J. I

NT L RB

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330 Harvard Negotiation Law Review [Vol. 13:327

As much as the internet is a network of networks, it is a network

of relationships. And as much as the internet is a collection of tech-

nologies, it is a collection of communities. For many, the internet dif-

fers from other technological innovations in that it has, in and of

itself, become a community to millions of people. The internet now

has the structure that could be associated with a real society, such as,

online banking, online health care, and online education. People in

virtual communities exchange knowledge, conduct commerce and do

4

just about every thing people do in real life. In this regard, Ethan

Katsh, a leading writer on OADR, has noticed that:

Cyberspace is more than a data network. . .it is a community

5

unto itself.

Relatively little attention has been directed to how the internet

fosters the building of business relationships. Many of the businesses

that are participating in the e-commerce phenomenon are the results

of individuals joining together in ways that allow expertise and crea-

tivity to be applied at a distance. Groups can establish online corpo-

rate entities, tightly control participation, and reach agreements on

or modify rules more rapidly via online communication. This new

global formula of business-relationships could not have flourished

without the advent of the internet. As a result, business relationships

are entering a new digital era in which, just as conflicts could reason-

ably be expected to grow as online transactions increase, conflicts can

be expected to grow as online collaborations increase.

The internet gives global connectivity because information tech-

nology techniques make it possible for anyone to transmit significant

quantities of information to anyone else over virtually any distance,

practically instantaneously. That kind of global reach is not true with

older technologies such as telephone and telegraph services. Users of

older technology had to make special arrangements to extend their

reach across national boundaries, but this is not the case with the

6

internet.

Second, unlike the mass media era in which one-too-many forms

of communication predominated, the potential of the many-too-many

4. See Kenneth Sutherlin Dueker, Note, Trademark Law Lost in Cyberspace:

9 H . J. L. & T . 483, 484 (1996);

Trademark Protection for Internet Addresses, ARV ECH

The Zones of Cyberspace, 48 S . L. R . 1403, 1403 (1996).

Lawrence Lessig, TAN EV

K , L D W 14 (1995).

5. M. E THAN ATSH AW IN A IGITAL ORLD

The Internet is Changing the Public International Legal

6. Henry H. Perritt, Jr.,

88 K . L.J. 885, 887 (1999-2000).

System, Y

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Spring 2008] Internet Characteristics 331

forms of communication is created by digital technology. Therefore,

7

network communities allow for greater decentralisation.

In cyberspace, communication transcends time, space, and physi-

cal reality. The internet has effectively changed the users’ assump-

tions about time and space, as well as duration and distance.

Accordingly, the internet is not simply a new channel of

8

communication.

Further, the internet facilitates the storage, retrieval, review,

comparison, annotation, classification, and reuse of information more

9

than other communication mediums.

The internet is the only medium that allows all elements of many

types of commercial transactions to be conducted electronically. It

should be noted however that such transactions could be conducted

through a combination of electronic and non-electronic mediums (e.g.

internet and telephone).

Third, the internet makes it possible for participants to commu-

nicate asynchronously. Asynchronous communication takes place

when parties are not communicating at the same time. Asynchronous

communication has the enormous advantage of 24 hour availability.

A person can send an e-mail, for instance, at any time of the day to be

read at the recipient’s convenience. This is of particularly great value

where time differences make synchronous contact difficult. Unlike

communications media that tie up the entire channel in real time

during transmission, the internet breaks information into discrete

packets of bits that can be transmitted as capacity allows. Packets

are labeled with the address of their final destination, and may follow

any of a number of different routes from computer to computer until

reaching their final destination, where they are reassembled by the

10

recipient machine.

7. Id.

See M. Ethan Katsh, Dispute Resolution in Cyberspace, 28 C . L. R . 953,

8. ONN EV

961 (1996); Robert Bordone, Electronic Online Dispute Resolution: Approach, Poten-

tial, Problems and a Proposal, 3 H . N . L. R . 175, 179-81 (1998).

ARV EGOT EV

Focus on Cyberlaw: Applications of Online Systems in Alter-

9. Frank A. Cona,

native Dispute Resolution, 45 B . L. R . 975, 990-91 (1997).

UFF EV

See C R , O D R B : B2B, E-C

10. OLIN ULE NLINE ISPUTE ESOLUTION FOR USINESS OM-

, C , E , I , C C 47

MERCE ONSUMER MPLOYMENT NSURANCE AND OTHER OMMERCIAL ONFLICTS

(2002); M C T & D B , R O A

ELISSA ONLEY YLER I RETHERTON ESEARCH INTO NLINE LTERNA-

D R : E R P D

TIVE ISPUTE ESOLUTION XPLORATION EPORT REPARED FOR THE EPARTMENT OF

J A (2003), http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+

USTICE IN USTRALIA

Internet/resources/file/eb63494383f8da4/Reseach_ADR_Exploration_Report_03.pdf.

download.

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332 Harvard Negotiation Law Review [Vol. 13:327

Fourth, and most importantly, although the internet may be per-

ceived as an established tool of communication, research, and en-

tertainment, the very characteristic of the internet which offers most

potential, namely, interactive characteristics, is often not fully appre-

ciated. Interactivity implies establishment of dialogue between the

distant users through e-mail, chat conference rooms, and web forums

such as audio and video conferencing. The internet makes it possible

for participants to communicate interactively without being present

in the same place. Indeed, the internet has changed the image of the

computer as something that calculates and computes to an image of a

machine that enables interaction between individuals. Although the

level of interactivity online may not be able to match the level of in-

teractivity in face-to-face encounters, the online environment can en-

able internet users to express themselves efficiently and

appropriately. Interactive technologies may bring people together

and move them from behind their computer screens to a virtual set-

ting. It is not the same quality as being in the same room, but it will

11

bring many of the same benefits.

1.3. Internet Characteristics and ADR

Although there is a difference between ADR and online ADR dis-

pute resolution mechanisms, which is obviously the use of the in-

ternet as a medium to conduct the proceedings of the former, such

difference should neither be overestimated nor underestimated.

It should not be overestimated because OADR is essentially a

change in venue rather than in approach. The online ADR process

does not differ very much from the offline process, except for the fact

that another form of communication, i.e. the internet, is used rather

than face-to-face procedures. ADR has evolved with the development

of commerce, and online ADR will refine ADR rather than making

any radical new departures. Online ADR would thus not represent a

major shift, and the choice for the parties between online ADR and

ADR would be dictated by considerations of economics and conve-

nience, informed by the relative importance that they ascribe to face-

12

to-face interaction.

Equally, the difference between ADR and OADR should not be

underestimated because the internet technology can enhance tradi-

tional ADR mechanisms. Online ADR mechanisms, through the use

11. See R , supra note 10, at 45; E K , & J R , O D R

ULE THAN ATSH ANET IFKIN NLINE IS-

R : R C C 136 (2001).

PUTE ESOLUTION ESOLVING ONFLICTS IN YBERSPACE

See K & R , supra note , at 93.

12. ATSH IFKIN

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Spring 2008] Internet Characteristics 333

of the internet, have contemplated the lack of person-to-person con-

tact in cyberspace and the scope of the electronic marketplace. Online

ADR would make electronic trade more efficient by not only adapting

dispute settlement rules to new technologies and media such as the

internet, but also by taking advantage of these new tools to stream-

line trade transactions. This conversion between ADR and new tech-

nologies like the internet, is sought to be the backbone of online ADR.

Online ADR is not just a virtual reverberation of ADR; it evolves

ADR through the deployment of computer networks, software appli-

13

cations, and the utilization of communication technology.

While the characteristics of the space in which parties meet is

not very integral to the success of ADR, the nature and design of vir-

tual space in which online ADR occurs is extraordinarily important if

not critical. This is due to the fact that the nature of the online space

will shape how expertise is delivered and the manner in which the

parties will be able to interact. Technological applications can en-

hance the expertise of the third party neutral and thus do more than

simply deliver the expertise of the third party neutral across the net-

work. In this regard, it is important to recall that technological appli-

cations are metaphorically called the “fourth party” by Katsh and

Rifkin, two leading authors on OADR, because they can add author-

ity, quality, trust, and enhance the chances of the success of the

14

process.

Broadly speaking, computer networking does not replace other

forms of human communication. Instead, it increases the range of

human connectedness and the number of ways in which people are

able to make contact. This requires online neutrals to adapt their

communication skills from face-to-face interaction to screen-to-screen

15

interaction.

Although many traditional ADR systems draw their strength

from face-to-face interactions, online ADR should not seek to repli-

cate those conditions. Instead, it should use the advantages of online

technology to forge a new path. This new path should focus on using

the networks to maximize the power of technology, a power which

may be missing in face to face encounters, instead of duplicating the

richness of face-to-face environment. From this perspective, it is not

surprising that a growing number of traditional ADR providers have

begun to offer online ADR services to complement existing offline

13. Id.

14. Id. at 32.

15. See R , supra note 10, at 13. R

ULE

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334 Harvard Negotiation Law Review [Vol. 13:327

ADR mechanisms. This is reasonable as the line between ADR and

16

online ADR will become increasingly blurred.

At this stage, it seems appropriate to discuss the interaction of

internet characteristics with mediation, arbitration, and third party

neutrals.

Internet Characteristics and Mediation

1.4. Mediation can be described in various ways. One of the best de-

scriptions of mediation is that it is an extension of direct negotiations

between parties to a dispute in which a neutral third party acts as

intermediary to facilitate those negotiations. The neutral third party

identifies the issues in dispute, gathers facts, develops options, con-

siders alternatives, and assists in finding a voluntary solution that is

satisfactory to both parties. Effective mediation entails a careful bal-

ancing act between emotive management, fact finding, issue spotting,

and communication enhancement.

Currently there is very much interest in the online possibilities

of mediation. Mediation cannot avoid being affected by the new IT

technology because communication is central to mediation’s ability to

lessen tensions and reach agreement. Mediation is a process in which

the mediator will have many decisions and choices to make as to how

to interact online with the parties. Mediators are extremely sensitive

to communication; much of the power of mediators resides in their

control over the process of communication. Also, mediation as a pro-

cess of how communication is structured between the parties, and be-

tween the parties and the mediator, is often the basis for agreements

reached by the parties. Mediation is a back and forth process of com-

17

munication seeking a mutually acceptable resolution.

Now more than ever, there is a need to define exactly what online

mediation is, before the process is so variably presented on the in-

ternet that the meaning of the word itself becomes blurred and con-

fusing. With unclear goals and unspoken assumptions, the

development of meaningful qualifications and standards in mediation

18

is difficult to envision.

Consequently, the very characteristics of mediation that are con-

sidered to be the weaknesses of mediation in the offline world,

16. Id. at 301.

& R , supra note 11, at 119.

17. K R

ATSH IFKIN

18. Robert A. Baruch Bush, Efficiency and Protection or Empowerment and Rec-

41 F . L. R .

ognition: The Mediator’s Role and Ethical Standards in Mediation, LA EV

253, 256 (1989).

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Spring 2008] Internet Characteristics 335

namely, the voluntary nature of the process, as well as the character-

istics of mediation that are considered to be the weaknesses of media-

tion in the online world, namely, the virtual nature of the process,

must be analyzed carefully.

Voluntary Nature of Electronic Mediation

1.4.1.

The electronic mediation process typically begins when a claim-

ant registers with an OADR provider which offers electronic media-

tion. 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. Then, if the parties cannot agree among

themselves, the OADR provider appoints a mediator. The mediator

uses the information provided by the claimant to contact the defen-

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

There is no applicable law to decide the dispute under in media-

tion. Instead, it is a process that is governed wholly by agreement of

the parties and relies upon the good faith engagement of both parties

and the mutual goal of resolution for success.

If the parties are to submit to mediation they must first agree

upon the terms to which they are to submit. The parties agree on the

procedure and they are at all times in control of the timetable,

agenda, and ultimately, the outcome.

Next, the mediator checks the background documents presented

by the participants and identifies the particular issues to be ad-

dressed. An exchange or series of exchanges occur between the par-

ties with the intervention of the mediator, and the parties attempt to

settle the dispute. The participants are asked to propose solutions to

the identified issues and challenges. The proposed solutions are con-

solidated and synthesised by the mediator, and used to develop more

concrete proposals. The participants are asked to respond to the iden-

tified proposals. At the end of the mediation, the mediator fills out a

dispute closure form clarifying the outcome and any agreements

reached.

Mediators may terminate mediation if requested by one or both

of the parties. In principle, both parties can abandon the procedure at

any stage without giving reasons and, apparently, this will bring the

conciliation phase to an end. In other words, neither party is bound to

reach agreement through the mediation process. Also, mediators may

terminate mediation if, in their opinion, the process is likely to

prejudice one or both of the parties, or if a party is using the process

inappropriately, delaying the process to the detriment of the other, or

appears not to be acting in good faith.

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336 Harvard Negotiation Law Review [Vol. 13:327

The mediator has no power to issue a decision or impose an out-

come on disputing parties. In other words, decision-making authority

rests with the parties over both process and substantive issues.

Clearly mediation’s lack of enforceability, because the mediator’s de-

cision is not binding, is a major drawback. It may discourage parties

from attempting mediation in the fear that time will be wasted that

could have been used for other dispute resolution mechanisms. Con-

sequently, the possibility of non-participation in mediation can be

high.

Some argue that the conception of mediation as a voluntary and

an informal process presents the greatest danger of abuse by inept or

unscrupulous practitioners. This is particularly true in the internet

disputes settlement context. Indeed, because internet users are not

physically proximate in their virtual communities, their level of com-

19

mitment is likely to be low.

Although some OADR providers, such as Squaretrade.com, work

to encourage the defendant party to respond to a case, it does not

guarantee that he or she will participate as their process of mediation

20

is entirely voluntary.

In this regard, it was suggested in the “WIPO Final Report on

the Management of Internet Domain Names and Addresses” that it

would not be desirable to incorporate a voluntary process such as me-

21

diation into a dispute resolution policy for domain name disputes.

That said, it is necessary to stress that although mediation is a

voluntary and informal process, it is structured. The mediation pro-

cess does not develop in a legal vacuum. Equity is the deciding factor

in the whole process, and the parties’ understanding of the legal

rights and obligations, which may be conflicting, certainly plays a

role. Furthermore, mediation always takes place in the shadow of the

law. This means that when mediation takes place, the parties are

aware that the law, looming in the background, is a force that should

enter into any calculations for the pursuit and development of resolu-

tion. Also, this means that mediation participants should take the

law into consideration when setting out a strategy for the mediation

procedures. It is clear that mediators take the substantive law into

consideration in helping to mediate the issues. Most importantly, if

19. See Bordone, supra note 8, at 179. R

20. Square Trade Dispute Resolution: Learn More, http://www.squaretrade.com/

cnt/jsp/odr/learn_odr.jsp, (last visited Apr. 15, 2008).

I P O , T M I

21. W ORLD NTELLECTUAL ROPERTY RGANIZATION HE ANAGEMENT OF N-

D N A : I P I 71 (1999),

TERNET OMAIN AMES AND DDRESSES NTELLECTUAL ROPERTY SSUES

available at, http://www.wipo.int/export/sites/www/amc/en/docs/report-final1.pdf.


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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.


DETTAGLI
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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