Department of Legal Studies
University of Massachusetts
Amherst, MA 01003
The technology is there for widely separated parties to meet in cyberspace, exchange and analyze complex information on preferences and needs, do deals, and execute binding settlements.
-Richard Shell 2
David Bolter, one of the most insightful writers about the new media, has observed that "each technology gives us a different space." 3 Cyberspace has enabled us to experience many new spaces. We have, most obviously, a new, large and active information place. We also have a new, large and active people place, where one can become acquainted with, exchange information with, and work with, individuals and groups. The creation of these information places and people places, along with the development of powerful tools for working with others, and with information, serves as the catalyst for many novel personal and commercial activities. It also serves as the foundation for a growing disputing environment as many of these transactions and new relationships encounter difficulties.
During the past few months, I have been working with a colleague, Janet Rifkin, to determine how her background as both an experienced ombudsperson and a scholar of alternative dispute resolution, and my understanding of networks and computers, might be combined for the purpose of resolving disputes that originate from online activities. The end result is a pilot project, the Online Ombuds Office, located in cyberspace at http://www.ombuds.org/". 4
The Ombuds concept originated in Sweden in the early eighteenth century. 5 In recent decades, a large number of institutions in this country have established ombuds offices. The Online Ombuds Office is an attempt to allow the Ombuds model to migrate one more time, from the educational, commercial, and governmental institutions in which it is now embodied, to cyberspace.
Ombudspersons are independent officials who receive complaints, conduct investigations, and make recommendations. The ombudsperson role is a varied one but includes "responsive listening," providing and receiving information, reframing issues and developing options, making referrals, and assisting persons to help themselves. 6 The ombudsperson is not an authoritative or final decision maker but is "a confidential and informal information resource, communications channel, complaint-handler and dispute-resolver. 7 The ombuds role was originally intended to be an antidote to abuses of governmental and bureaucratic authority and administration, and ombudspersons continue to be effective intervenors in cases of arbitrary decision making.
Part one of this paper describes a few factors that, we believe, underlies the need for an online ombuds office. Part two outlines a few qualities of the online environment that we have considered in designing the "office." Part three describes some additional challenges in the area of confidentiality and in the role of the ombudsperson. Part four describes our first case, one that came to us before we officially "opened" the office but one which illustrates both the conflict-creating and the conflict-resolving nature of the online environment. I conclude with a story that is intended to provide a perspective on what it means to adapt familiar activities to a new culture.
Cyberspace provides us with a new marketplace of ideas and it also provides us with a new marketplace of conflict. One who participates online finds oneself in a highly active arena of exchanges and encounters, an environment that allows persons and groups to communicate, build relationships, and work together in novel ways. It is an environment where one's informational activities are not limited by many of the temporal or spatial constraints of the physical environment. This leads to an expansion of economic and creative interactions, a largely beneficial consequence of an electronic environment, and, inevitably, an expansion of disputes involving the acquisition, use, possession, processing and communication of information.
Anyone who communicates or participates in online activities has observed or experienced conflict. Participants in listservs or Usenet newsgroups, for example, have inevitably witnessed arguments, insults, challenges to integrity or intelligence, perhaps even claims of fraud, libel and rights being violated. As the World Wide Web has developed, disputes involving copyright, privacy, and a range of First Amendment concerns and values have arisen.
Most disputes that arise from online activity are resolved informally. This is not surprising since it is also relatively rare for disputes in the physical world to end up in court. As Kolb and Silbey have pointed out,
most conflicts in organizations, as well as other settings such as families, communities, and informal groups, never get publicly expressed as disputes. When probed, people reveal all sorts of grievances, complaints, and differences that could be - but rarely are - voiced. Sometimes people fear retribution or loss of social acceptance, others avoid entrapment in complex processes; others believe that they lack sufficient resources to pursue their grievance; while yet others see complaining and confrontation as evidence of moral laxity or lack of independence...in a study of professional accounting firms Morrill reports that 73% of conflict episodes among partners are never expressed directly. Avoidance and toleration are the modal forms of conflict management rather than confrontation and negotiation. 8
When confrontations do take place, "people frequently resolve their disputes in cooperative fashion without paying attention to the laws that apply to those disputes." 9
The last two years have seen the beginnings of cyberspace litigation. Whereas prior to 1994, the Internet and cyberspace were almost completely unknown to both Lexis and Westlaw, that is no longer the case. 10 During the past two years, disputes involving copyright, obscenity, and free expression have resulted in judicial decisions.
These cases are interesting but they may be less significant as precedent and as determinants of future standards and practices than as a sign that disputes arising out of the Internet environment are increasing and have grown so numerous that a few of the disputes are not amenable to resolution using informal means. If, in any environment, the pattern of dispute resolution can be symbolized by a pyramid, in which the point at the top represents litigation and the base represents the least formal but most common, mode of dispute resolution, the cases that are now surfacing at the apex may signify considerable growth at the base.
The Online Ombuds Office is less a response to Internet litigation than a response to heightened online activity and to changing use of the network.Cyberspace is in transition, both in terms of how populated it is and in what it is used for. As cyberspace becomes larger and different from what it has been, the question of how it deals with resulting problems and disputes, and with how it can employ the powerful communicative and information processing capabilities that are present on the network, will receive increasing attention.
The need for more varied online options for dealing with disputes is linked to two trends in the use of cyberspace. The first involves the rapid increase in the number of persons and institutions in cyberspace. The secod concerns a broadening of the kinds of activities and interactions that are taking place in cyberspace.
Although the exact number of persons participating in online activities is unclear, there is no doubt that there has been an extraordinarily rapid and significant increase in the number of persons using the Internet. 11 The number of Internet hosts has been almost doubling every year since 1991. The rate of increase in domain names has been even greater, with a more than threefold increase between January, 1995 and January, 1996. Most of the recent increase involves use of the World Wide Web, both by seekers of information and publishers of information, but increases are also apparent in the use of e-mail, listservs and newsgroups. The Digital Corporationís Alta Vista service for locating information on the World Wide Web and in Usenet newsgroups is accessed five million times each day and indexes nearly 11 billion words found in over 21 million Web pages. The Cornell Law School Legal Information Institute server experiences approximately 75,000 "hits" a day.
The World Wide Web has provided broad support to publishing and information distribution activities. E-mail, listservs and Usenet newsgroups have provided some support to associational activities and to transactional activities. All have combined to enable individuals to establish relationships with other individuals as well as with groups of people whom they are unlikely to have interacted with before. 12 They permit information to cross many institutional, economic, political and social boundaries, thus encouraging us to think about our categories of associational behavior in new ways. Listservs and Usenet newsgroups, for example, are not only vehicles for distributing news, but can indeed be groups, in that participants feel a relationship with others, and norms, expectations and assumptions about behavior emerge that are consistent with group formation and operation.
Currently, the distinctions among e-mail, listservs, newsgroups, and the Web, are breaking down as the Web becomes able to support a wide range of activities, including the establishment of relationships and associations and much transactional behavior. There will, inevitably, be a slowing in the growth rate of individuals joining the network as the number of overall participants grows. Even when this occurs, however, network usage should continue to increase at a high rate. The reason for this is that the network becomes more valuable as more persons and institutions participate in it and as new software expands the range of activities that individuals and groups can engage in. Cyberspace, even today, is not a small place. Yet it is relatively small compared to what it will be in five or ten years. It will grow larger in terms of the number of people who have a presence in it yet measurement of persons with accounts or the number of host computers may miss the most significant change. What is growing, perhaps even faster than population, are the kinds of activities that users can engage in. As these activities increase, and as the network becomes a place where increasing numbers of relationships form, it also, inevitably, becomes a place where a large number break down. Indeed, as the network matures, there will be increases in both the number of economically significant relationships established online as well as the number that experience problems.
The level of conflict in cyberspace will continue to increase, not only because there are more people interacting in traditional ways, but because the kinds of interactions taking place in cyberspace are broadening and changing in character. In the past, cyberspace has largely been a place for publishing and exchanging information. To a lesser extent, relationships have formed and, in a fairly primitive way, individuals in different locations have been able to work with one another. It is not surprising, however, that the focus of legal attention has been oriented largely around the publication of content (First Amendment and obscenity), the distribution of content (harassment and libel), and the collection and processing of information (privacy and copyright).
Cyberspace is becoming an increasingly rich and varied environment, one that, indeed, can suppport many of the interactions and activities we engage in every day in the physical world. We are learning that bodies of information in digital form can grow not only into even larger bodies of digital information, such as libraries, but that as they grow larger, and as they are unbundled and rebundled, 13 processed and reprocessed, new kinds of institutions will emerge. As cyberspace begins to support many specialized arenas of interactions and transactions, it becomes more than sets of documents and more than sets of tools for working with information. The combination of software operating upon data transforms the network into a place or places that are an alternative or substitute for many different kinds of physical places, and into a culture with values, norms and expectations about acquiring, exchanging, using, and processing information.
What kinds of physical places can be displaced by the network? The range of such places is surprisingly broad. Such places are built through software, through lines of code that represent the informational components of a place or institution. If one uses the network only for e-mail, the network appears to be a place for interpersonal and group communication. If oneís focus is on the World Wide Web, at least as it is used currently, the network appears to be a place that competes with print publishers. Networks mature, however, as new software is designed to take advantage of advancements in hardware. Thus, it is new software that brings us new ventures, new activities, and new opportunities to interact with others. 14 New software gives us new visions as well as support for new behaviors. With the right software, a network can create an online alternative to almost any place that does not involve or require a physical object or physical process. 15
The clearest software worlds, and the easiest to understand, are those that recreate institutions and places that are almost exclusively informational in character, such as libraries or conference centers, or are largely informational, such as banks or shopping centers. 16 As the network grows, it will, to more and more people, be perceived as a place in addition to being used as a tool. It will be increasingly understandable as a place because the range of activities that will be supported online will continue to increase, and the physical places in which these activities have occurred in the past will be displaced and used less often. Online activities will not only be thought of in terms of particular activities, such as "online banking" or "online learning," but as a kind of place that supports many familiar activities. These online places will not be identical to the traditional physical place because much of the physical context will be lacking. Even so, however, we may begin to think of the network as being not only a means to make deposits, or send complaints about a purchase, but as the store, bank, corporate headquarters, or library.
The Online Ombuds Office project, as originally conceived, would have allowed a group of ombudspersons, possessing both expertise and experience, to be called upon by persons involved in online disputes. We have since broadened the scope of the project, largely because of three decisions, each of which touches on the issue of what it means to move a process that is based in a physical context, into the digital environment.
Our first decision was to conceive of the project as the setting up of an office rather than as the application of skills possessed by a person. The primary reason for this is that the application and use of skill online is continuously filtered and shaped by that environment. Indeed, the online environment cannot really be separated from the person using it. By employing the office metaphor (although it may not always be a metaphor), we recognized that we needed to make an effort to adapt the online environment to the needs of the ombudsperson, and not simply accept those tools, such as e-mail, that are commonly available.
The office concept was important to us because the Web site, which is not only where the office is located but actually is the office, is likely to be the access point to the ombudspersons. Persons wishing to obtain the services of the ombudsperson will, in general, experience the Web site first. It seemed desirable to us, therefore, to employ the Web site to inform the user and to provide the user with some tools for self-help. One advantage of an online office is the opportunity to enter it anonymously, if one wishes to do so. Although much software is designed to intrude on privacy, privacy and anonymity can also be guaranteed through software. From the userís perspective, one entering a well designed online office should feel free to explore all the routes to information that are provided. In this sense, the online office is one in which, at least over time, user needs can be anticipated and in which the user can peruse and copy anything and everything that is on display without needing to overcome feelings of shyness or timidity.
The World Wide Web provides opportunities to meet a variety of needs of persons engaged in some conflict. Ombudspersons not only intervene in cases but help users understand their disputes, link the dispute to existing institutional policies, and guide users in seeing what options and choices may be available to them. The Web site will perform some of the same functions for consumers and disputants as an office would, welcoming them, providing them with information about the service, and enabling them to begin the process by filling out appropriate forms.
Unlike a traditional office, the online office offers several opportunities not present in a physical setting. The OOO (Online Ombuds Office) web site, for example, has significant educational potential and, possibly, a dispute-prevention function. The web site will contain a data base of online disputes and cases and materials that might, in some cases, promote resolution of the dispute without formal intervention. Indeed, in the same way that many individuals enter a dispute resolution center, find some materials that provide a perspective about their problem and assist them in resolving their problem by themselves, the OOO can satisfied the needs of disputants by outlining options, suggesting possibilities, and furnishing information.
A second decision we made was to pair each ombudsperson with someone very familiar with the Internet. There were two main reasons for this. First, context is always a factor in a dispute. 17 In cyberspace, however, where environments are created by software, our sense was that some ombudspersons might lack a sense of context and a sensitivity to the environment out of which the dispute emerged. In the physical world, ombudspersons are often part of the institution out of which the dispute arose. In the early phases of this project, however, it is possible that each dispute will be novel and discussions with technical advisors may assist the ombudsperson in understanding various assumptions and expectations of the disputants.
Our second reason for employing a technical advisor is that technical knowledge may affect the ultimate resolution of the dispute. There may be elements of the online environment that can be employed to obtain data about the parties to the dispute or that would be useful to employ in order to monitor a settlement. When solutions and approaches are information-based, the level of creative problem solving may increase if there is easily available technical expertise.
A third decision we made was to try to provide as rich a set of communications tools as possible for the ombudsperson. In a physical office, meetings can occur face to face, with the parties privately or as a group, the telephone may be used, and notes may be sent. E-mail alone cannot be as useful as the set of tools that we have at our fingertips in the physical environment. The Web site, therefore, needs to be a resource for the online ombudsperson just as it is a resource for the disputant. For the ombudsperson whose assistance is sought, there needs to be options for individual and group communication, and choices that can be made in order to regulate the flow of information and the pattern of communication. 18
Ombudspersons are sensitive not only to what information is communicated to a disputant but to how information moves to and among disputants. The ombudsperson needs to have some control over the flow of information, since the communications pattern can affect who is interacting with whom and under what conditions. 19 The web site will be an evolving resource. As the site becomes more sophisticated, more resources will become available for both the disputants and online ombudspersons. As the site develops, for example, decision trees and other decision analysis tools may become available, 20 as well as tools for simulating and modeling alternatives.
Our assumption has been that access to any tools we make available should be easy to use by disputants. Thus, while software such as CUSeeMe can make video conferencing possible and affordable, it is not likely that we shall avail ourselves of this at the beginning. We have, courtesy of Washburn Law School, access to a specially designed Web-based chat room that allows for real time communication among participants. This is listed on our Web site as the Online Ombuds Conference Room. Similarly, Villanova Law School has made available their "conference" center with threaded communications, should that form of communication be desired.
An assurance of confidentiality is generally a feature of alternative dispute resolution. The purpose of holding sessions in private and of guaranteeing confidentiality is to encourage openness and frankness in discussions with the third party neutral. In the process of meeting with each party separately, neutrals learn a great deal from them. Whatever ADR process is employed can be expected to work more effectively when each party is assured that what they reveal will not be shared with other parties, unless permission is given to do so. This guaranty is often not a legally binding guaranty that is supported by a case or statute. More commonly, it requires some trust in the word of the neutral that intrusions into the process will be resisted.
When ADR takes place in physical spaces, the context alone provides some support to maintaining confidentiality. In some programs, for example, case files are not preserved and, for face to face conversations or those occurring via the telephone, there is no physical record that can be obtained later and be used as documented proof. Similarly, any papers or notes kept by the neutral can be disposed of after the dispute is resolved. The problem in online communications is that communication over a network inevitably involves copying or allows for the copying of data multiple times. In the physical setting, one might take steps to assure that there is only one copy of something or that all existing copies of something are retrieved. In the online environment, one can request that copies be destroyed but the process of communication is such that it is sometimes difficult to even know when or how many copies are made. The simplest e-mail message may or may not involve a copy being saved on the senderís hard drive, on some service providerís backup system, on some temporary storage file, as well as on the recipientís hard drive.
It is important to remember that cyberspace is an environment in which communication occurs through copying. When messages are "sent" to someone, it is actually a copy that is sent. When someone looks at an e-mail message or some other information on screen, there may be copies sitting on some server, on some other machines that are part of the network, on oneís hard disk, as well as on screen. As David Post has written, "file copying is not merely inexpensive in cyberspace, it is ubiquitous. And it is not merely ubiquitous, it is indispensable, a necessary precondition to the existence of the medium, because all basic computer functions, and therefore all computer-mediated communication, rely on reproducing information in some manner or another." 21
In such an environment, how should the issue of confidentiality be treated? There are some steps that one might take as a regular part of oneís practice, such as deleting copies that are made automatically, keeping backups of files for only a limited period of time, and checking local drives often for copies. An online mediator or online ombudsperson needs to be highly sensititve to the confidentiality problem and to understand how copying is inherent in all electronic communications. Yet, even the precautions just mentioned will probably not provide sufficient assurance in cases in which confidentiality is highly desired by the parties. Using the most common means of networked communication involves too much inherent copying to allay the fears of anyone who understands how information flows over a network.
In a digital world, where copying and communication are intertwined and where anything that appears on screen can be copied and preserved by one party, it may be that it is the concerns and interests served by confidentiality that need to be addressed, and not simply to try to make sure that information is controlled as tightly as it might be in the physical world. In other words, new approaches or perspectives are needed that accept the nature of the electronic environment but that also try to exploit novel tools and practices that are possible in it.
Looked at from this point of view, the question becomes not how to prevent the copying of information or how to enforce guidelines concerning copying, but whether there exists some means to encourage parties in the electronic environment to reveal information about themselves in a way that will not, at some later date, place them at some disadvantage. The design of an effective dispute resolution space requires such an attitude and the working together of dispute resolution professionals and software designers because, as noted earlier, the solutions are largely software solutions.
It is hard to know exactly where such collaboration might lead but two options that exist today are the following:
1. Encryption - As noted above, ordinary e-mail is a poor choice for communicating information that one wishes to be seen by one and only one person. Encryption, however, can guaranty such a result. Encryption encodes a message so that no one can decode it without the appropriate "key." The key is separately communicated to the recipient. If the message is somehow intercepted before reaching the recipient, the message will be unintelligible. 22
2. Anonymity - Unlike an encrypted message, a message sent anonymously can be read by anyone who obtains it. What is different is that the reader will not be able to trace it back to the sender. Even when it seems clear, from other means, who the sender is, there will be no formal way to attribute the mesage to the sender.
Using anonymous remailers that allow communication but hide information about the sender, allows content to be transmittted but places some doubt about the value and authenticity of the message. In another context, the ombudsperson using the Online Ombuds Conference Room can require the use of a pseudonym by anyone who enters the room. Conversations are held by persons who think they know who the other participant is but who cannot really be sure. One could, for example, have a representative using the pseudonym rather than the actual disputant. Such an arrangement does not guaranty confidentiality, but it does make attribution difficult. As a result, it may encourage open communication since there is less potential damage that can occur to the disputant from what he/she is represented as saying.
Cyberspace is an environment in which copying is easier but guaranteeing the authenticity of messages is harder. In cyberspace, it is possible for one to assume many identities (psudonyms) and to change oneís identity by pressing a few keys, 23 or to have no identity (anonymity). Thus, while it is ordinarily possible to copy any message that one sees on the screen, one also tends to be wary of attributing the message to the person who appears to be the sender.
Just as software, in the form of encryption, can guaranty that only one person is able to read a message, there are software solutions to the authenticity problem. Digital signatures, for example, are codes that are embedded in a message that can be employed to verify that a message was sent by someone. What this suggests is that third parties who work online will need to be sensitive to the varying levels of identity identification that are available online and to select the level that is appropriate to the problem and to the parties.
As noted earlier, context can influence the approach of the neutral, the choice of process, and the behavior and attitudes of disputants. In any environment, context can affect the kinds of disputes that are likely to arise and also affect who the parties are who are likely to be involved in the dispute. Context implicitly feeds us information about the extent or nature of the injury as well as how the injury or dispute is perceived by those involved. Context situates a dispute in a particular time and place, and we react and adjust accordingly as the parameters of the environment become clear to us. When the environment is unclear, as cyberspace often is, and when physical artifacts that serve as symbols of a particular kind of activity are missing, it becomes difficult to categorize and to find the boundary lines between categories.
What is noteworthy about context in cyberspace, particularly in the current early phase of cyberspace, is its relative ambiguity. As noted earlier, there may be uncertainty about whether people are who they say they are. 24 Much ambiguity results because familiar physical elements of context are missing. Physical cues, such as "body language" and tone of voice, may be missing, and race and gender may be absent as well. More generally, we are challenged with uncertainty because cyberspace does not provide us with familiar or fixed boundaires and limits. In most disputes, the value of contextual information derives from knowing where a dispute occurred, when it occurred, and who is involved. Yet, in cyberspace, where context can be redesigned simply by rewriting the code that determines what appears on the screen, questions of where and when may not be implicitly and immediately clear to a third party.
The fluidity and malleability of many online environments is something that neutrals must be aware of and confront since these conditions affect the informational value of context. 25 Computers, as Michael Wheeler has observed, "can profoundly transform the negotiation process, often without the participants realizing it." 26 The computer screen can be designed to have a "look and feel" that makes us think that the context is the same as that which exists in physical spaces. In some instances, the online environment may even be designed to take on qualities of most physical places and institutions. More commonly, however, it needs to be remembered that virtual worlds are places where Newtonian laws of time and space can be overcome. Thus, the neutral who attempts to intervene in disputes in cyberspace must understand that one cannot assume that actions and disputes in cyberspace will be shaped by the same forces and expectations that operate in the physical world.
In the physical world, particularly when the third party, such as an institutional ombudsperson, belongs to the same institution or culture as the disputants, neutrals and disputants may come to the ADR process with many common understandings of context. For example, the need for privacy and the potentially embarrassing consequences of some disclosure may be implicitly understood when there is a dispute between two employees. There is a background to the dispute that does not have to be articulated by either the disputants or the third party neutral since it is grounded in shared assumptions and perceptions.
Cyberspace offers dispute resolvers a variety of impressive informational tools and opportunities to communicate and work with information. In situations where the context is familiar, such as when a neutral is merely using online tools in a dispute that arose locally, the neutral will probably also feel quite familiar and assume a role that largely parallels the role of a traditional dispute resolver. Consider, however, a dispute that originates in cyberspace, that involves a relationship or issue that could only exist in cyberspace, and that involves people who are located at a considerable distance from each other. In such instances, the neutral needs to understand and be sensitive to norms and expectations for which the neutral may have little experience.
Our first case arrived before we were ready to open for business. We had intended to plan for our opening by simulating a few disputes in order to see how valid and workable the ideas expressed above might be. Before we were able to begin the simulation, however, a case was forwarded to us by the Virtual Magistrate Project.
Among the general goals of the pilot project are to learn about the context of cyberspatial disputes, about the expectations of disputants, about constraints and opportunities when one intervenes at a distance, and about the role and function of the World Wide Web site. The first case did not result in an online mediation but it has deepened our understanding of these issues.
The dispute began as an argument in a Usenet newsgroup. It escalated a bit when the complainant made a telephone call to the respondent (who had included his phone number on a posting ot the newsgroup). The dispute escalated even further when the respondent called the complainantís employer and asked that the complainant be disciplined for making Usenet posts on company time. When the complainant sent a message to the respondent complaining about this, asking him to avoid further contact, and not to forward the message to anyone, the responded did just what he was asked not to do and posted the message to numerous newsgroups.
We have had several exchanges of messages with the complainant. We have asked for a more complete statement of what occurred and some clarification of what the complainant wants. One difference in a dispute of this kind from a dispute in the real world that became quickly apparent is that there is a record of much of the dispute and that it can be obtained, if one wishes to do so, independently of the parties. The Alta Vista < http://www.altavista.digital.com> and Dejanews < http://www.dejanews.com> search engines can be employed to discover a great deal of information about who the parties are.
We are still clarifying some issues with the complainant, who may receive some satisfaction simply from knowing who the respondent is. We have not yet attempted to contact the respondent, and we may never do so, because we learned that anyone who sends him e-mail receives a message back saying that the server is no longer receiving messages and that the intended recipient cannot be contacted. In reality, the intended recipient takes the message, finds the senderís employer, and does what occurred in this case. This behavior earned the repondent a victory in the Usenet Kook of the Month contest for January, 1996, a Web site < http://www.wetware.com/mlegare/kotm/winnersk96.html> that recognizes generally obnoxious, destructive or very strange online behavior. Indeed, the responded received more votes than any previous Kook of the Month.
I am not sure that we would have chosen to begin online intervention with a dispute involving such an individual but the pilot project will, we believe, involve many cases that will have a fairly novel context. The Usenet environment may generate a fair number of cases and we modified the Online Ombuds Office Web site to include links to some Web pages that identify persons who have frequently been involved in online disputes. We would hope that an understanding of who one is involved with and the fact that they are widely known for their actions, may bring some satisfaction to those who experience contact with them.
I have, in a recent book, 27 employed the following story about the anthropologist Edward Hall to suggest that our migration from physical space to cyberspace touches us on several different levels. Several decades ago, while doing research in Japan, Hall returned to his hotel one day, went up to his room, opened the door, and found that while it was the room he had been living in, someone else's belongings were there. Hall took this in for a few moments, all the time feeling uncomfortable, indeed feeling that somehow he must be in the wrong place, and that he would be found and accused of being in someone else's room. He then went down to the desk where he was told that his room and his belongings had been moved. He was given a new key, went up to his new room, and found that all of his possessions had been laid out for him in just about the same way he had left them in the first room. There was a marked resemblance to the room and the arrangement and yet, he could feel, much was different as well. 28
Professor Hall, as an anthropologist, understood that what was important about his experience went beyond the nature of the artifacts in his new space. He realized that he was not only in an unfamiliar physical place but that he was in a culture and environment that he did not understand completely. He was no longer confident in what he could expect to occur in this space. Whose space was this, for example, and might he be moved again? Hall realized that the new environment had physical resemblances to what was familiar to him but he also recognized that, due to strong environmental or cultural forces, his role as tourist/guest/renter had changed. Long held assumptions about hotels no longer seemed to be valid and he became aware that his relationship with the hotel was different from what he had assumed it to be. What was his, what was shared, and what belonged to others were no longer as clear as they had been.
Professor Hall, as he adapted to his new space, continued to wonder about what his new surroundings signified. He eventually left Tokyo, where the first hotel had been located, and moved to Kyoto. He writes:
There we were fortunate enough to stay in a wonderful little country inn on the side of a hill overlooking the town. Kyoto is much more traditional and less industrialized than Tokyo. After we had been there about a week and had thoroughly settled into our new Japanese surroundings, we returned one night to be met at the door by an apologetic manager who was stammering something. I knew immediately that we had been moved, so I said, "You had to move us. Please don't let this bother you, because we understand. Just show us to our new rooms and it will be all right." Our interpreter explained as we started to go through the door that we weren't in that hotel any longer but had been moved to another hotel. What a blow! Again, without warning. We wondered what the new hotel would be like, and with our descent into the town our hearts sank further. Finally, when we could descend no more, the taxi took off into a part of the city we hadn't seen before. No Europeans here. The streets got narrower and narrower until we turned into a side street that could barely accommodate the tiny Japanese taxi into which we were squeezed. Clearly this was a hotel of another class. I found that, by then, I was getting a little paranoid, which is easy enough to do in a foreign land, and said to myself, "They must think we are very low-status people indeed to treat us this way."
As it turned out, the neighborhood, in fact the whole district, showed us an entirely different side of life from what we had seen before, much more interesting and authentic. True, we did have some communication problems, because no one was used to dealing with foreigners, but few of them were serious. 29
Hall again understood that what was causing him difficulty was not only the physical inconvenience of being moved but his concern over what it meant that he had been moved. Any space, he realized, was not simply a physical location but a cultural environment with embedded norms and values. Ultimately, he learned that being moved did not have the same significance as being moved might have in the United States. Hotel space looked the same but it was being governed by some different conventions and values. Indeed, far from according him a low status, he learned that the hotel managers who moved him were treating him quite respectfully. He writes that "the fact that I was moved was tangible evidence that I was being treated as a family member - a relationship in which one can afford to be relaxed and informal and not stand on ceremony.'" 30
Hallís story is meaningful, I believe, because cyberspace has many qualities of a culture. It affects not only what we are able to do, but how we do things and how we think about what it is we are doing. One needs to be very cautious, therefore, about assuming that what is imported to cyberspace will have the same meaning and value as it has in physical space. There are, for example, several projects around the country that have produced courtrooms of the future. These projects emphasize the use of technology in trials by placing powerful technology in a familiar physical place. Yet, the most imaginative courtroom of the future may not be in any of these physical courtrooms but in cyberspace. Its functions may be similar to that of a courtroom but it may also differ in a variety of ways from the familiar physical courtroom. It will be separated not only by dimensions of time and space but by a set of expectations, assumptions, and goals that we will have to come to terms with.
There appears to be a growing need for dispute resolution in cyberspace. As they begin to resolve disputes, the Virtual Magistrate Project, the Online Ombuds Office, and the Maryland Mediation Project should indicate how the network can be a resource for confronting online problems. They may also be laboratories of ideas and practices for working toward the resolution of non- cyberspatial disputes, since whatever is learned will have applicability for these disputes as well. In this sense, these online spaces may even turn out to be prototypes of the courtrooms of the future.
1 My understanding of alternative dispute resolution owes an enormous debt to my colleague Janet Rifkin. Some of the ideas in this paper are explored at greater length in an article, "Dispute Resolution in Cyberspace: Approaches and Perspectives" that will appear in the University of Connecticut Law Review (forthcoming, 1996). A draft of the article will be available at http://www.ombuds.org/uconn.html
2 Richard Shell, "Computer-Assisted Negotiation and Mediation: Where We Are and Where We Are Going," Negotiation Journal 117, 121 (April, 1995).
3 David Bolter, Writing Space: The Computer, Hypertext, and the History of Writing (Hillsdale: NJ: Erlbaum Associates, 1991), p. 11. Taking the spatial nature of cyberspace seriously is also a feature of the following important works about online communication: Brenda Laurel, Computers as Theatre (Reading, Massachusetts: Addison-Wesley: 1991); Sherry Turkle, Life on the Screen (New York: Siman and Schuster, 1995). It is also a perspective put forward in my own work, The Electronic Media and the Transformation of Law (New York: Oxford University Press, 1989) and Law in a Digital World (New York: Oxford University Press, 1995).
4 The pilot project is supported by a grant from the National Center for Automated Information Research (NCAIR). As of late April, 1996, the prototype Online Ombuds Office web site is located at http://www.ombuds.org/~ombuds/ombuds.html
5 Walter Gellhorn, Ombudsmen and Others (Cambridge: Harvard University Press, 1966), p. 194.
6 Mary Rowe, "Options, Functions, and Skills: What an Organizational Ombudsperson Might Want to Know," Negotiation Journal (April, 1995), pp. 103-114.
7 Id. at 103.
8 Deborah M. Kolb and Susan S. Silbey, "Enhancing the Capacity of Organizations to Deal with Disputes," Negotiation Journal 297, 300 (October, 1990).
9 Robert C. Ellickson, Order Without Law vi (Cambridge: Harvard University Press, 1991).
10 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.
11 See Internet Domain Survey: < http://www.nw.com/zone/WWW/top.html> and "Measuring the Growth of the Web" < http://www.netgen.com/info/>
12 Until now, "[t]here have 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." S. Hiltz and M. Turoff, The Network Nation (Reading: Addison-Wesley, 1978), p. xxv.
13 Henry Perrittís analysis of 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. Henry H. Perritt, Jr., "Market Structure for Electronic Publishing and Electronic Contracting on a National Research and Education Network: Defining Added Value," in Brian Kahin, ed., Building Information Infrastructure (New York: McGraw-Hill, 1992), pp. 344-401.
14 The role of software in shaping cyberspace is described in Ethan Katsh, "Software Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace," University of Chicago Legal Forum (forthcoming, 1996).
15 See David Gelernter, Mirror Worlds (New York: Oxford University Press, 1989).
16 Money already exists largely in electronic form. It is only in the comsumer 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.
17 "Mediation is deeply contextual and, when situated in different environments and institutions, it will perform different tasks." Carrie Menkel-Meadow, "The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices," Negotiation Journal (July, 1995), p. 236.
18 The critical importance of controlling communication is described in Susan S. Silbey and Sally E. Merry, "Mediator Settlement Strategies," 8 Law and Policy 7 (1986)
19 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 and problems that the parties find acceptable and legitimate. The ombudspersonís 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 - thepower to reshape narrative, to reconstruct stories, to transmit information selectively in an effort to produce consensus.
Janet Rifkin, "The Nameless People of Dispute Resolution," Negotiation Journal (January, 1990), pp. 12-13.
20 Marjorie Corman Aaron, "The Value of Decision Analysis in Mediation Practice," Negotiation Journal (April, 1995), p. 123.
21 David G. Post, "Controlling Cybercopies," Legal Times, April 8, 1996, p. 44.
22 A. Michael Froomkin, "The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution," 143 University of Pennsylvania L. Rev. 709 (1995).
23 Lindsay Van Gelder, "The Strange Case of the Electronic Lover," in Charles Dunlop and Rob Kling, ed., Computerization and Controversy (Boston: Academic Press, 1991).
24 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, for example, Anna Smith, "Problems of Conflict Management in Virtual Communities," in Peter Kollock and Marc Smith, eds., Communities in Cyberspace (Berkeley: University of California Press, forthcoming, 1996). A table of contents of the book is accessible at < http://www.sscnet.ucla.edu/soc/csoc/cinc/> ; Jennifer Mnookin, "Virtual(ly) Law; The Emergence of Law in LambdaMOO," in Anne Branscomb, ed., "Symposium: Law on the Electronic Frontier," Journal of Computer-Mediated Communication (1996), available online at < http://www.usc.edu/dept/annenberg/vol2/issue1/> . Perhaps the most controversial of all writings about conflict in cyberspace is Julian Dibbellís "A Rape in Cyberspace," which appeared in The Village Voice on December 23, 1993 and is available online at http://www.panix.com/~julian/writing/bungle.html.
25 See Ian MacDuff, "Flames on the Wire: Mediating from an Electronic Cottage," Negotiation Journal (January, 1994), pp. 5-13.
26 Michael Wheeler, "Computers and Negotiation: Backing into the Future," Negotiation Journal (April, 1995), p. 171.
27 Ethan Katsh, Law in a Digital World (New York: Oxford University Press, 1995).
28 Edward Hall, Beyond Culture (Garden City, NY: Doubleday, 1976), pp. 58-59.
29 Id. at 60-61.
30 Id. at 65.