FNa1. Professor of Legal Studies, University of Massachusetts at Amherst. E- mail: Katsh@legal.umass.edu. I am most grateful to the University of Connecticut Law Review for inviting me to participate in the Legal Regulation of the Internet Symposium in April, 1996. My understanding of alternative dispute resolution owes an enormous debt to my colleague Janet Rifkin, with whom I co-direct the Online Ombuds Office that is described below. This is a project supported by a grant from the National Center for Automated Information Research (NCAIR). I also appreciate the assistance of Lexis/Nexis and the West Publishing Company respectively, in providing me access to the Lexis/Nexis and Westlaw databases.
FN1. Sherry Turkle, LIFE ON THE SCREEN: IDENTITY IN THE AGE OF THE INTERNET 26 (1995).
FN2. G. Richard Shell, Computer-Assisted Negotiation and Mediation: Where We Are and Where We Are Going, 11 Negotiation J. 117, 121 (1995).
FN3. David H. Gelernter, MIRROR WORLDS, OR, THE DAY SOFTWARE PUTS THE UNIVERSE IN A SHOEBOX ... HOW IT WILL HAPPEN AND WHAT IT WILL MEAN (1989).
FN4. Id. at 3.
FN5. MYRON W. KRUEGER, ARTIFICIAL REALITY II (1991).
FN6. TURKLE, supra note 1.
FN7. Michael D. Shear, Free Speech Gets Tangled In the 'Net; Colleges Try to Balance Rights, Cybersensitivity, WASH. POST, Oct. 23,1995, at A1.
FN8. An archive of materials relevant to this dispute is maintained by the Justice on Campus on Campus Project at <http://joc.mit.edu/cornell.html>.
FN9. Deborah M. Kolb & Susan S. Silbey, Enhancing the Capacity of Organizations to Deal with Disputes, 6 NEGOTIATION J. 297, 300 (1990).
FN10. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES vii (1991).
FN11. A search of the Lexis Mega file for "internet or cyberspace" turned up forty-six cases that mentioned one or both of these terms. Of the forty-six cases, thirty-nine were from 1995 and 1996, six were from 1994 and there was one each in 1992 and 1991.
FN12. Religious Tech. Ctr. v. Netcom On-line Com. Serv., 907 F.Supp. 1361 (N.D. Cal. 1995).
FN13. United States v. Thomas, 74 F.3d 701 (6th Cir. 1996).
FN14. Stratton Oakmont, Inc. v. Prodigy Serv. Co., No. 31063/94, 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct. May 24, 1995).
FN15. ACLU v. Reno, 929 F.Supp. 824 (1996).
FN16. See Internet Domain Survey: <http://www.nw.com/zone/WWW/top.html>, "Measuring the Growth of the Web" <http://www.netgen.com/info/>, or "Growth and Usage of the Web and the Internet" <http://www.mit.edu/people/mkgray/net/>.
FN17. Until now, "[t]here has been no means for a group of people to adequately exchange information among themselves and reach decisions, other than to meet frequently face to face and talk it out." STARR R. HILTZ & MURRAY TUROFF, THE NETWORK NATION: HUMAN COMMUNICATION VIA COMPUTER xxi (1993).
FN18. GELERNTER, supra note 3.
FN19. TURKLE, supra note 1.
FN20. Henry H. Perritt, Jr., Market Structure for Electronic Publishing and Electronic Contracting on a National Research and Education Network: Defining Added Value, in BUILDING INFORMATION INFRASTRUCTURE 344 (Brian Kahin ed., 1992). Henry Perritt's analysis of the opportunities presented as it becomes possible to unbundle various tasks traditionally performed by single persons or entities remains one of the most significant pieces of writing about the digital environment.
FN21. The role of software in shaping cyberspace is described in M. Ethan Katsh, Software Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace, 1996 U. CHI. LEGAL F. (forthcoming 1996).
FN22. See GELERNTER, supra note 3.
FN23. Money already exists largely in electronic form. It is only in the consumer phase that money exists as coins and bills. It is conceptually difficult for many individuals to think of how money might be electronically transferred to their home. In the future, however, when the "coin of the realm" might be encoded on a "smart card," money could easily be delivered directly to the home via a card reading device on the personal computer.
FN24. Leda M. Cooks, Putting Mediation in Context, 11 NEGOTIATION J. 91, 94 (1995).
FN25. TURKLE, supra note 1.
FN26. See generally Lindsay Van Gelder, The Strange Case of the Electronic Lover, reprinted in COMPUTERIZATION AND CONTROVERSY: VALUE CONFLICTS AND SOCIAL CHOICES (Charles Dunlop & Rob Kling, eds., 1991).
FN27. See Julian Dibbell, A Rape in Cyberspace or How an Evil Clown, a Haitian Trickster Spirit, Two Wizards, and a Cast of Dozens Turned a Database into a Society, THE VILLAGE VOICE, Dec. 23, 1993. The article is available online at < http://www.panix.com/julian/writing/bungle.html>.
FN28. But see Symposium, Dispute Resolution in Cyberspace, NIDR NEWS (M. Ethan Katsh, ed., September-October, 1995). For issues relevant to online dispute resolution, see Symposium, Doing Deals in Cyberspace: Negotiation, ADR and the Electronic Revolution, 11 NEGOTIATION J. 91 (1995); See also Ian MacDuff, Flames on the Wires: Mediating from an Electronic Cottage, 10 NEGOTIATION J. 5 (1994).
FN29. Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 LAW & POL'Y 7 (1986).
FN30. The Virtual Magistrate Project is located at <http:// vmag.law.vill.edu:8080>.
FN31. David Post, Dispute Resolution in Cyberspace: Engineering a Virtual Magistrate System (May 1996), available at <http:// www.law.vill.edu/ncair/disres/DGP2.HTM>.
FN32. Robert Gellman, A Brief History of the Virtual Magistrate Project: The Early Months, (May, 1996), available at <http:// www.law.vill.edu/ncair/disres/Gellman.HTM>.
FN33. See Richard Granat, Creating An Environment for Mediating Disputes On the Internet (May, 1996), available at <http:// www.law.vill.edu/ncair/disres/granat.htm>.
FN34. Located at <http://www.ombuds.org>. (I serve as co-director of this project along with Professor Janet Rifkin of the University of Massachusetts).
FN35. Mary P. Rowe, Options, Functions, and Skills: What an Organizational Ombudsperson Might Want to Know, 11 NEGOTIATION J. 103, 103-14 (1995).
FN36. Id. at 103.
FN37. WALTER GELLHORN, OMBUDSMEN AND OTHERS 194 (1966).
FN38. "[M]ediation is deeply contextual and, when situated in different environments and institutions, it will perform different social tasks." Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 236, 236 (1995).
FN39. See, e.g., Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 LAW & POL'Y 7, 14 (1986) (describing the critical importance of controlling communications).
FN40. See generally Janet Rifkin, The Nameless People of Dispute Resolution, 6 NEGOTIATION J. 11, 12-13 (1990). Janet Rifkin has written that:
Ombudspersons talk of their lack of power; however, this assertion often reflects a misconception of power. Power is not simply tied to institutional grants of authority, to the outcomes of cases, or to the status of the parties in conflict. Rather, power is tied to the processes by which consensus is brought forth. By consensus I do not mean the settlement that persons reach. Rather, I mean the semantic tactics that ombuds (and other third parties) employ to set agendas, frame issues, and define conflicts as manageable problems. The power of ombudspeople is located in this ability to shape definitions of the issues and problems that the parties find acceptable and legitimate. The ombudsperson's fundamental task is to build consensus between persons ....
People come in with a narrative of trouble out of which the ombudsperson must make sense, by labeling and defining the actionable problem, and by having the parties agree with this interpretation. Therein lies the ombuds power - the power to reshape narrative, to reconstruct stories, to transmit information selectively in an effort to produce consensus.
FN41. Marjorie C. Aaron, The Value of Decision Analysis in Mediation Practice, 11 NEGOTIATION J. 123, 126 (1995).
FN42. David G. Post, Controlling Cybercopies, LEGAL TIMES, Apr. 8, 1996, at 44.
FN43. A. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709 (1995).
FN44. See generally Gelder, supra note 26.
FN45. This is perhaps most obvious in the virtual communities known as MOOs and MUDs. Some of the most interesting writing about conflict in cyberspace has focused on these communities. See generally Anna Smith, Problems of Conflict Management in Virtual Communities, in COMMUNITIES IN CYBERSPACE (Peter Kollock & Marc Smith, eds., forthcoming 1996). See also Jennifer Mnookin, Virtual(ly) Law; The Emergence of Law in LambdaMOO, in Symposium, Law on the Electronic Frontier, 2 J. OF COMPUTER-MEDIATED COMM. 1 (1996), available at < http://www.usc.edu/dept/annenberg/vol2/issue1/>. For perhaps the most controversial of all writings about conflict in cyberspace, see Dibbell, supra note 28.
FN46. See, e.g., MacDuff, supra note 29.
FN47. Michael Wheeler, Computers and Negotiation: Backing into the Future, 11 NEGOTIATION J. 169, 170 (1995), p. 171.
FN48. Available at <http://www.altavista.digital.com>.
FN49. Available at <http://www.dejanews.com>.
FN50. Available at <http://www.wetware.com/mlegare/kotm/winnersk96.html>.
FN51. M. ETHAN KATSH, LAW IN A DIGITAL WORLD (1995).
FN52. EDWARD HALL, BEYOND CULTURE 50 (1976).
FN53. Id. at 51-52.
FN54. Id. at 56.
FN55. See, e.g., Mark Curriden, Courtroom of the Future Is Here, A.B.A. J. 22, 22-23 (1995); See also Fredric I. Lederer, Technology Comes to the Courtroom, and ...," 43 EMORY L.J. 1095 (1994).