Internet Characteristics and Online Alternative Dispute Resolution
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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
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
1.2. 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
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
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
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
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
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).
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Spring 2008] Internet Characteristics 331
forms of communication is created by digital technology. Therefore,
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
Further, the internet facilitates the storage, retrieval, review,
comparison, annotation, classification, and reuse of information more
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
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).
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
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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
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-
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-
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
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
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
14. Id. at 32.
15. See R , supra note 10, at 13. R
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334 Harvard Negotiation Law Review [Vol. 13:327
ADR mechanisms. This is reasonable as the line between ADR and
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
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-
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
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
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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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
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
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
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-
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
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-
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.
+1 anno fa
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.
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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