Online Dispute Resolution Bridges Digital Divide

By Larry Greenemeier

April 2003

 

Deafgirl is suing Annarea to find out if they're really friends. Deafgirl says that Annarea was talking to her one minute, and then acting "pissed off" the next. Annarea's defense: she's not mad, but Deafgirl does have a tendency toward condescension. The whole case could turn on the testimony of Ciara, who claims to be best friend to both parties.

What kind of court would accept such a case? The "Friends Court" portion of I'm Right, You're Wrong (Imright.com), a Web site that specializes in solving the most informal of disputes between friends, family members and co-workers.

The Web site's litigants, who have included "My brother pretends like he doesn't know me" vs. "I wish I didn't," participate in the spirit of fun. But the site's underlying notion, that the Internet can be an effective channel for settling disputes, is one that a number of businesses and professional organizations have taken to heart.

"There's been an inevitable move to online dispute resolution due to the expansion of information technology," says Colin Rule, director of the online public disputes project at Rabb Associates, a public dispute resolution firm. "Only now is the ability for technology to act as a two-way communications medium being explored."

Two forms of Internet-based problem solving have emerged as the Internet's popularity has grown over the past several years. The first, and most common, is online dispute resolution tied to electronic commerce. The other, characterized by Imright.com and other sites, uses the Internet as a tool to mediate disputes that originate outside the realm of technology.

"With dispute resolution, you make a good-faith contract for each of the parties," says Kerry Kennedy, an entertainment lawyer and president and chief operating officer of I'm Right, You're Wrong LLC. "The courts are in favor of this and in some cases are strictly enforcing such contracts."

Put another way, online dispute resolution is used "when people are pissed off at each other and try to settle their dispute online," and when they have a problem that comes from an online transaction, says Peter Phillips, senior VP of the Center for Public Resources' (CPR) Institute for Dispute Resolution. The non-profit institute was formed about 25 years ago by a number of companies and their law firms to study dispute management between businesses.

Before CPR was created, companies settled most of their disputes through litigation, Phillips says. "The founding companies wanted alternatives, so we became their think tank," he says. What emerged was the idea of mediation as a business management tool. "For the past 15 years, CPR has been a leading proponent of mediation in business settings."

More recently, some of CPR's members asked Phillips and his team to research better ways to resolve disputes between businesses involved in online transactions. The companies weren't sure how to apply jurisdiction in an e-commerce case and how to enforce contracts governing online relationships. One solution they turned to was a budding technology known as online dispute resolution, which has its roots in alternative dispute resolution, a practice popularized since 1990 as a way to mediate disagreements outside the courtroom.

Mediation has three key advantages over taking case to court. "It's done consensually rather than ordered," Phillips says. "It's done privately so you don't have to worry about embarrassing people. And it's also done quickly and cheaply, without the hostility that usually accompanies litigation."

While tools for online dispute resolution have emerged, the practice hasn't grown as rapidly or widely as has Phillips once thought it would.

Online dispute resolution services offered through online auction site eBay have successfully offered recourse for consumers who receive broken or misrepresented merchandise. But when large sums of money and important business relationships are involved, for example, online dispute resolution hasn't been widely embraced, Phillips says. "It's like making love, frankly; it's best done directly."

The secret behind eBay's online dispute resolution service is technology from SquareTrade. Steve Abernethy, Ahmed Khaishgi and Lalitha Vaidyanathan formed the company in 1999 in response to the emergence of electronic marketplaces that held out the promise of paperless transactions between businesses. While many of these marketplaces have since folded, eBay in February 2000 picked up on SquareTrade's automated dispute resolution software as a way to keep its members honest.

"People don't even know it's our technology," Abernethy says. Prior to directing its customers to SquareTrade.com, eBay had no dispute resolution service. If a consumer was unhappy with a transaction, the only recourse was to give the seller a negative rating on eBay's site.

At the heart of SquareTrade is software that takes information about a case and uses logic to suggest possible outcomes. If the suggested outcome is mediation, SquareTrade calls upon one of its mediators, usually a legal consultant or law professor. The mediator makes suggestions to the disputants, and they have the choice of following or discarding the advice. All of this takes place on the SquareTrade.com Web site.

For eBay and other e-commerce sites to succeed, it's essential for them to have the public's trust, or at least some way for the buyer to file a complaint, Rule says. "If you engage in a bad transaction and you get screwed, you're not going to go back."

"Online dispute resolution was a reaction to the expansion of e-commerce," says Rule, who is also president of Online Resolution Inc., a Web-based company that uses a combination of trained mediators and software to resolve disputes. Online Resolution will either run the process for the participants or sell its Resolution Room software to a company that wants to set up its own online dispute resolution service.

Here's how it works: When Online Resolution hosts the service, a person fills out an online form outlining his or her complaint, which is routed to an Online Resolution consultant. The consultant then contacts the company or other party that is the target of the complaint to see if they want to use the online dispute resolution process.

If both sides agree to participate, they then use Rule's Resolution Room Web site to post information that will be used during the mediation process. The site is called "Resolution Room" because an Online Resolution mediator can divide the site into password-protected areas and control who has access to those areas. If and when both sides reach an agreement, they can decide whether the agreement should be legally enforceable. Otherwise, they rely on the honor system.

The use of technology to resolve disputes has several benefits, but it will never replace all forms of in-person mediation, Rule says. Online dispute resolution is particularly effective in resolving insurance disputes, where the problem is typically resolved between insurance companies regarding a patient's claim.

"Online, there's a cooling distance that helps when the problem simply calls for results," Rule says. "This doesn't work as well when someone is looking for an apology or if the dispute is emotional."

Divorce cases, for example, aren't settled very well online, Rule says. Although Millenniumdivorce.com is a site that claims to offer Internet-based mediation for divorcing couples, Rule questions this use of online dispute resolution. "Often you're dealing with two angry people who need to develop a new relationship."

Experts agree that online dispute resolution is most likely to succeed in places that lend themselves to mediation. The Better Business Bureau Inc., an organization founded on the principles of mediation between buyers and sellers, is just such a place.

The Better Business Bureau has for the past year opened up the Web as a channel for consumers to file complaints. Consumers seem to like it. Complaints filed to the bureau rose to 826,000 in 2002, 65 percent more than the previous year. In fact, consumers filed 525,000 online in 2002. This exceeded all of the 500,000 complaints collected in 2001.

The bureau's foray into online dispute resolution proves two things: the easier a service is, the more it will be used, and not all disputes can be settled using a computer. The bureau's Auto Line program receives 32,000 cases per year, 18 percent of which require arbitration. Most of these disputes are over warranty terms, while others come from buyers looking for protection under a lemon law.

Some cases don't make it to mediation because the owner violated the warranty or waited too long to file a claim. Mediators work with both parties in Auto Line cases and are required to know their state's lemon laws and a little something about cars. The mediator might, for example, want to drive the car in question, says Rod Davis, VP of dispute resolution for the Better Business Bureau Inc.

As far as Davis is concerned, technology is welcome in places where it makes the dispute settlement process more effective. The bureau is in the process of creating a database of images, including photos and documents relevant to different disputes. By the end of April, the bureau will start offering some disputants access to their case files via a Web site that includes related documents and images as well as important dates and reminders regarding the resolution process. If the disputants wind up at an arbitration hearing, the bureau can post the hearing's date and time as well as directions to the location. It can also post the arbitrator's ruling.

Davis says he doesn't know how far the bureau will advance its technology, nor is he certain that it should make the process too high-tech. "Some people like to talk to a person," he says. "There is a frustration level out there where some people feel like technology is getting in the way. I'm not sure technology will be the panacea for us."

Technology can certainly help communication between the Better Business Bureau's 127 offices nationwide. Davis wants to see the bureaus linked to a shared database within the next three years so that a consumer can walk into any regional office and access his or her case information.

"I always want to have an opt-out to a human (via either telephone) whenever possible," Davis says. "The technology is only as good as the human standing behind it."

The future of online dispute resolution technology is less clear. With advertising and investor money for Internet projects hard to find these days, Imright.com founders Louis Pizante, Elliot Karathanasis, and Kennedy went back to working full-time jobs. The Web site operates today with little intervention from the company, although Kennedy says she wants to eventually go back to working fulltime for I'm Right, You're Wrong.

While Rule says video conferencing will definitely benefit online disputants, Abernethy is more skeptical. "People saying that video conferencing is the future have never implemented a working technology," Abernethy says. "For something to be effective, it has to be simple and easy to use. Most people don't have broadband or video conferencing capabilities."

Rule argues that as the cost and complexity of video conferencing comes down, it will be a useful mediation tool. "People often say that we're still at the point of scratching pictures on cave walls when it comes to the Internet's evolution," he says. "The most exciting part for me is that new technology is coming. One day we may walk into a courtroom that's completely computerized. We have to continue to try new things out."

Until that time, Deafgirl might just have to settle for an "e-pology" from Annarea.