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Lesson 78 - Dispute Resolution in Cyberspace

Dispute Resolution in Cyberspace: What It Is.

[In the next few messages we will focus not on the specific rules applicable to conduct in cyberspace, but on the processes through which disputes about that conduct might get resolved. We have asked the leading expert on this topic, Prof. Ethan Katsh of the University of Massachusetts-Amherst, to be our "guest lecturer" for this portion of the course.]

The last message ended with some examples of disputes that can (and actually did) arise in cyberspace. What approach should be taken to settling these disputes? How many choices do we have? What are the advantages and disadvantages of different dispute resolution approaches? Before making a choice, let's describe some possibilities and identify some differences among them.

The most common techniques of dispute resolution are Litigation -- Arbitration -- Mediation -- Negotiation

Some differences among these methods include the following:

  1. Litigation - involves lawyers, the adversary process, formal and public trials before a judge, and, typically, one party ending up the winner and the other the loser.

  2. Arbitration - Does not use the courts. Rather the parties to the dispute *the ones in disagreement* pick one or more arbitrators and agree to abide by the arbitrator's ruling. Lawyers may or may not be involved, proceedings may be private, and the end result can be win/lose or a compromise. The TV show The People's Court may have looked like a court to you but it was really arbitration. Judge Wapner had once been a state court judge but what you saw on screen was a process set up for television that was agreed to by the parties (one reason the parties agreed to participate was that the producers paid any sums that the loser had to pay to the winner).

  3. Mediation - A neutral third person is selected by the parties but the mediator does not make any rulings or decisions. Rather the mediator helps the parties themselves come to an agreement by meeting with them, both individually and together. The mediator identifies the interests and concerns of the parties, and helps them find areas of agreement. The participation of lawyers is less likely, and any agreement they reach will always involve compromise. No settlement occurs unless both parties agree to it. What this means is that both parties will walk away from a mediation with some measure of satisfaction.

  4. Negotiation - No neutral third person is used to assist the parties in reaching an agreement.

To these four methods, we might add a fifth.

  1. Lumping it - The most common of all dispute resolution techniques. Walking away from the dispute after deciding that it is simply not worth your time or money to pursue it further.

  2. ADR, or alternative dispute resolution, generally focuses on arbitration and mediation, processes using neutral third parties to settle the dispute "out of court." ADR has enjoyed extraordinary growth during the last fifteen years. It has been perceived as a less costly approach than litigation and also as a method that allows more flexibility in designing solutions, that is less formal and less reliant on lawyers, and that is private and confidential.

Recently, it has been suggested that ADR should stand not for "alternative dispute resolution" but for "appropriate dispute resolution." There are cases, such as civil rights cases, where litigation might be the most appropriate method to use even if it is costly and time consuming. Litigation might be preferable to other methods in those cases where it is important for proceedings to be public and for a standard of behavior to be set for the public.

In other cases, however, the parties may have had a relationship before the conflict and might possibly have a relationship in the future. Mediation, more than litigation, might reduce the hostility that exists between the parties and enhance the possibilities for a workable future relationship.

The choice of dispute resolution method involves a decision based on the following factors:

  1. Cost

  2. Desire for a flexible solution

  3. Concern over keeping the decision making process confidential

  4. Interest in a quick resolution

  5. Importance of future relationship with the other party

It should also be noted that the use of ADR requires both parties to agree to participate. When you sue someone, you can force him to appear in court. If one party to a dispute will not cooperate, however, ADR generally cannot be used (unless the parties have agreed before the dispute arose to use a particular technique). We "lump it" or negotiate most of our disputes, therefore, partly because litigation is costly, partly because it may not be clear where in your community ADR services are obtainable, but also partly because sometimes when one side is willing to agree to the assistance of a third party, the other side is not.

authors:
Ethan KatshLarry LessigDavid PostEugene Volokh



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