The Online Ombuds Office: Adapting Dispute Resolution to Cyberspace
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September 2000 |
-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.
I. Conflict in cyberspace
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.
a. Increase in population of 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 Corporation’s 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.
b. New places and activities in cyberspace
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 one’s 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.
II. Design of the Online Ombuds Office
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.
A. Decision 1: The Office Component
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 user’s 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.
B. Decision 2: The Ombuds Component
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.
C. Decision 3: The Online Component
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.
III. Changes in Meaning and Function
The challenge in cyberspace is only partly to provide the third party neutral with an array of communications capabilities for communicating and working with information in as easy a manner as one can work with information while sitting face to face with someone with a problem. It is, in addition, necessary to understand the nature of ADR processes so that what may not be possible to duplicate in cyberspace can be redesigned, hopefully in a manner that furthers the goals or fair and equitable dispute settlement. The following suggests two examples of the kind of challenge that may surface as processes are moved from one environment to another. The first involves confidentiality, a basic concern of ADR. The second concerns the pressure that the new medium places on the way in which we conceive of the third party’s role and performance.
A. Confidentiality
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 sender’s hard drive, on some service provider’s backup system, on some temporary storage file, as well as on the recipient’s 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 one’s 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 one’s 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
Biography
Since 1996, Professor Katsh has been involved in a series of activities related to online dispute resolution. He participated in the Virtual Magistrate project and was founder and co-director of the Online Ombuds Office. In 1997, with support from the Hewlett Foundation, he and Professor Rifkin founded the Center for Information Technology and Dispute Resolution at the University of Massachusetts. In 2001, he received a grant from the Markle Foundation to improve accessibility to domain name dispute rulings. The domain name dispute database, built in collaboration with the Cornell Law School Legal Information Institute, became publicly available in May, 2003.
From 1997-1999, Professor Katsh mediated a variety of disputes online, involving domain name/trademark issues, other intellectual property conflicts, disputes with Internet Service Providers, and others. In the Spring of 1999, he supervised a project with the online auction site eBay, in which over 150 disputes were mediated during a two week period. During the Summer of 1999, he co-founded Disputes.org, which later worked with eResolution to become one of four providers accredited by ICANN to resolve domain name disputes. He is also an adviser to SquareTrade.com, an Internet start-up focusing on online ADR.
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