September 11-12, 2000
San Francisco, CA

D R A F T

Online Alternative Dispute Resolution: An Issues Primer

Anita Ramasastry
Professor and Associate Director
Center for Law, Commerce & Technology
University of Washington School of Law, USA

[Working Draft circulated for comment only - please do not distribute externally]

Prepared by the Center for Law, Commerce & Technology
University of Washington School of Law
for the National Association of Attorneys General

(c) 2000 Center for Law, Commerce & Technology
email: lct@u.washington.edu
http://law.washington.edu/lct

Overview

Over the past three years, the explosion of electronic commerce has left many in the legal profession at a loss as to how to react to the new economy Every form of industry, from the auto industry, to the clothing industry, to the legal profession is being affected by this new medium for conducting business.

To date, lawyers, legislators, policymakers and industry representatives have struggled with the issue of how existing laws should (or should not) function in the amorphous world of cyberspace. Consumers and business alike have struggled to figure out what law governs Internet transactions and whether existing rules concerning intellectual property, contracts and consumer protection are valid in an e-commerce context. Another problem that arises in cyberspace is in which jurisdiction a consumer or business would seek a remedy with respect to an Internet-based transaction. Online contracting and e-commerce creates a global marketplace for consumers. However, consumers can ill afford to pursue their legal remedies in an overseas jurisdiction

The use of nonjudicial means for dispute resolution may provide a solution to this problem. This report focuses on the possibility of using the Alternative Dispute Resolution ("ADR") as a means for dealing with consumer complaints and disputes connected to Internet transactions. Additionally, this report analyzes the use of the Internet itself as a medium for such dispute resolution. For the sake of consistency, the term Online ADR will be used when referring to this concept. While Online ADR may be a solution for consumers faced with the daunting task of seeking remedies for cross border Internet disputes, one must also consider the validity of existing complaint resolution procedures. Existing mechanisms such as credit card charge backs or informal complaint resolution conducted directly with merchants may be adequate for a large number of consumer Internet complaints.

An ancillary question is who should provide Online ADR? Some of the possible actors include:

• private for-profit companies,
• industry trade associations,
• existing arbitration or mediation service providers (who deal with disputes in the non-virtual world);
• international organizations or
• government agencies (state or federal).

This report provides policymakers with background information they will summarize the current status of Online ADR and the various models that exist. It is hoped that this information will aid decision makers in determining:

1. Whether Online AFR is desirable for resolution of commerce disputes (business to consumer and business to business)?

2. Which entities are best placed to provide Online ADR services?

3. What type of model/structure is optimal for various types on online disputes?; and

4. Who should allocate resources for these efforts (consumers, government, industry)?

This report explores the costs, benefits and possible efficiencies of Online ADR, in particular with respect to the types of consumer complaints currently being lodged with state attorneys general's Offices throughout the country. The report begins with a discussion of the current treatment of Internet related complaints by States Attorneys Generals, and is followed by explanation of Online ADR as a concept. The report then moves on to a discussion of some of the key reasons for adopting and promoting Online ADR processes. Finally, we canvass some of the major Online ADR providers in order to provide an overview of the various approaches currently in use or under development.

I. Attorneys General's treatment of Internet Related Complaints

Note: This section is still in progress as we await responses from additional states and hope to create summaries and a table of current approaches to resolution of Internet-related consumer complaints.

The state attorneys general and corresponding state consumer protection bureaus are focal points where consumers currently direct complaints and queries with respect to Internet transactions. Keeping this fact in mind, state attorneys general need to consider whether it is desirable to:

• refer consumers to existing Online ADR providers;
• work with industry to propagate new models for consumer complaint resolution and/or Online ADR; or
• take on a role at the state level as a provider of Online ADR in addition to or as an alternative to the proprietary services that are available.

The Center for Law, Commerce and Technology is currently in the process of corresponding with the 50 States Attorneys General regarding their treatment use approaches to online consumer complaints, and specifically their use of Online ADR. To date, far the Center has received responses from ten of the fifty states.¹ It is expected that most offices will respond during the summer months of 2000.

It is clear that Attorneys General throughout the United States recognizes the growing consumer protection issues associated with the Internet. The State of Virginia provides us with some interesting data. Their Attorney Generals Office received 213 Internet-related complaints in 1997, 64 in 1998, 87 in 1999 and 45 as of May 23, 2000.² Not surprisingly the majority of Internet related complaints in Virginia have been against Internet Service Providers. (Virginia is home to many of the Nation's biggest ISPs such as AOL.)³ Their Office of Consumer Affairs (OCA) received 16 Internet related complaints in 1997 (15 against ISPs, 1 concerning the sale of a product), 53 in 1998 (20 against ISPs, 26 concerning online auctions, 7 concerning the sale of products), 115 in 1999 (71 against ISPs, 43 concerning online auctions, 1 concerning sale of a product), and 59 in 2000 (36 against ISPs, 23 against Internet Auctions).⁴

At present, the various states are taking different approaches to consumer complaints and inquiries related to Internet transactions. The majority of states fall into one of three categories. In category A, are states, which while aware of the unique problems of Internet complaints, are not currently participating in specific efforts to address these problems. Category B, is made up of states that are taking awareness of Internet related complaints and allow consumers to use their web sites to provide information and file complaints online. Category C states are those states taking the most proactive stance. These states have web sites dedicated to Internet related problems and complaints. In addition several of these states either have or are in the process of establishing Online ADR processes. Of those states responding to our survey, two are in category A, eight fall into category B, and 0 are in category C.

Two leaders in online consumer protection are the States of Washington, and New York. The State of Washington Attorney General's Office has created a new High Tech Unit of its Consumer Protection Office to address Internet crimes and disputes. The Washington State Attorney General's web site currently allows consumers to file disputes online and will ultimately allow consumers to have their complaints resolved online.⁵ The New York Attorney General's Office already has a mediation process that allows a complaint to be filed online, and allows the complainant to communicate with the Office via email.⁶ In 1999 the New York Attorney General, Eliot Spitzer, committed his office to protecting citizens from Internet fraud and established a special unit dedicated to online enforcement; Attorney General Spitzer estimated his office would receive nearly 2500 Internet related complaints in 1999 alone.⁷ Initiatives such as the two established by Washington and New York may serve as models for other states.

II.What is Online ADR?

Online ADR, like its parent traditional ADR, consists of a variety of methods such as arbitration, mediation, and mini-trials, that seek to resolve disputes by means other than litigation. Unlike traditional ADR, Online ADR utilizes the Internet as a means to more efficiently engage parties in non-litigious dispute resolution. Online ADR resolves disputes by harnessing computer-networking technology to bring parties together in a dialogue that is hosted by a third party service provider.

Typically the Online ADR process begins when a claimant registers with an Online ADR Provider, such as clickNsettle.com or Squaretrade.com.(see Figure 1) The ADR Provider then uses the information provided by the claimant to contact the defendant party and invite them to participate in Online ADR. If the defendant accepts the invitation, they will then file a response to the claimant's complaint. From this point on the various ADR Providers take on different approaches. Some have developed proprietary software that allows parties to engage in negotiation of monetary sums without the participation of a negotiator or mediator.

Other service providers have taken a more hands on approach that provides for more traditional mediation services across email and interactive web sites. Still others employ variations of these two methods. Another area of difference is the level of enforceability of a settlement. While most online settlements are not legally binding and enforceable (i.e., a party may still seek resolution in a court of law after engaging in the Online ADR process), some ADR providers require or encourage parties to enter into a binding settlement contract. Of course, such a settlement is only enforceable to the extent allowed by state contract law.

Figure 1.: Typical Online Alternative Dispute Resolution Process

In the future, the development of other forms of dispute resolution are likely, as dot.coms, governmental agencies and individuals realize the power and relative ease of resolving disputes online. As we begin the shift to broadband technology, the possibility for incorporating real-time audio and video into the existing framework may lead to more powerful dispute resolution tools that could potentially increase the power of Online ADR.

Why Online ADR?

Online ADR can play an important role in bridging the gap between the Internet and our existing laws. In particular, Online ADR minimizes the jurisdictional problems inherent in Internet transactions. The relatively low costs of Online ADR may provide a forum for claims of low monetary value that would otherwise not have a forum. As transactions involving micro payments on the Internet increase (e.g., buying a news article or a horoscope on line for a nominal fee), the number of claims of small value will similarly grow. ADR, in general, may create a more real level of accountability for private individuals transacting on intermediary web sites, such as auction sites. Online ADR addresses the need for an appropriate forum for international disputes that would otherwise not be adjudicated or would be extremely expensive or time consuming. While several of these issues have increased in importance due to the growth of business to consumer (B2C) and business to business (B2B) Internet transactions, Online ADR is may be equally attractive for settling traditional (non-Internet) disputes.

Attorneys General and consumer protection agencies throughout the country have seen a tremendous influx in the number of consumer complaints connected to the advent of e-commerce in 1997. Unfortunately, many of these complaints may never be resolved. One reason some of those disputes have not been addressed has to do with the fact that one of the parties to the dispute is often outside of a state's jurisdiction. Traditionally a company or individual being sued outside of its state's jurisdiction might take significant steps to avoid such a lawsuit. The costs associated with establishing representation in a foreign state are often significant enough to warrant such a response. The Internet is increasing the number of products being sold and bartered across state lines, with the result that cross-border disputes are becoming increasingly more commonplace.

• Elimination of Jurisdictional barriers

The Online ADR process provides a dispute resolution medium that does not depend on the exercise of jurisdiction in a forum state. Companies and individuals are given incentives to resolve their disputes. Certainly such an interest is most commonly present where an ongoing relationship is at a premium.⁸ The process is dependent on extending an invitation to a defendant party to engage in communication. While this process requires the acceptance of such an invitation, it is most often in both parties' best interest resolve the dispute in the >least expensive and time-consuming manner. The Internet serves this process very well because it does not require the physical presence of both parties and the arbitrator or mediator. The discussion can be carried on at speeds close to real time and the costs associated with legal representation, travel and lodging can be minimized. Furthermore, the physical separation may actually benefit the parties. Physically separated parties are more likely to keep their cool and negotiate effectively because a large part of the emotional element involved with face to face negotiation is removed. Thus it is possible to bring parties to a conflict to a resolution without the exercise of jurisdiction on a foreign corporation or resident.

• More attractive for disputes with small monetary value

A second problem associated with many Internet transactions is that disputes are often over items of relatively little monetary value. Disputes over goods of such little value do not lend themselves to being litigated in court because of the high costs of litigation. As a result, consumers have relatively little recourse when challenging disputes of low monetary value. This type of dispute most commonly arises, but is not limited to, smaller, less developed e-businesses, as well as Internet transactions between private parties. At large e-businesses, such disputes are often handled internally by a company's customer service center.

Online ADR mechanisms may provide an effective medium for resolving disputes of low monetary value. Generally, Online ADR providers are inviting resolution of claims regardless of the size of the claim. In fact, some Online ADR providers do not even charge for their service, thus the value of the claim is effectively of no importance⁹. While most ADR Providers do charge a fee, the prices are most often very reasonable and start for as little as $36.50 for an item up to $2000 (Onlinemediators.com). The presence of Online ADR mechanisms accredited by States Attorneys General might provide an avenue to contest smaller disputes and remove those disputes from Attorneys General's consumer protection caseload. Alternatively, the states might consider creating and investing in their own Online ADR mechanisms, at least for informal complaint resolution, as a way of speeding up the complaint resolution process, and allowing for the ease and convenience for consumers and merchants alike, of participating in the dispute resolution process from their home or business office.

• Auction sites - Dispute resolution when Internet business as the intermediary

Consumer fraud at intermediary sites, such as auction sites, is one of the areas prone to a greater number of disputes and consumer fraud. Intermediary web sites are companies that provide a forum for interaction and transaction between members of a community such as eBay.com. The majority of these disputes are not between companies and individuals, but rather between private individuals.

Consumers that participate in this type of commerce expose themselves to a heightened level of risk due to the relative anonymity of the individual making a sale. The occurrence of disputes arising out of misrepresentation, or non-delivery of a product is extremely high in this type of transaction. Many of the Internet related complaints received by Attorneys General take this form. Unfortunately the majority of buyers and sellers at auction/intermediary sites do not have the wherewithal to contest such a claim in court, but an online mediation might serve as a much better alternative. With their low costs, simple processes and human interaction even when hundreds of miles apart, Online ADR providers present a possible alternative to the court system which would generally be inaccessible for this type of dispute.¹⁰

• Lack of clear contract and consumer protection rules

The lack of clear legal rules in the international e-commerce arena is another reason why Internet companies are embracing Online ADR. As electronic commerce grows, borders between nations are blurred. Thus the application of one country's law as compared. that of another, or the application of private international law can lead to very complex jurisdictional and conflict of law issues. E-businesses will continue to expand their markets into the international arena, and will face consumer disputes from a multiplicity of jurisdictions.

In sum, issues of jurisdiction, disputes with low monetary value and the frequency of complaints involving Internet intermediaries are likely to be exacerbated in the international arena. Online ADR Providers allow individuals from across the world to settle disputes in one meeting place even while being in opposite ends of the globe and have the ability to address these issues in a manner not possible by traditional litigation. The flexibility of the process means that participants do not have to rely strictly on the rule of law. Rather they may rely on understanding each other as people, and work more effectively toward an amicable solution that bridges legal, cultural and contractual divides.

• Recent example of intervention guidelines that include Online ADR

Although still in its early stages, Online ADR is proving to be a viable dispute resolution proposal not only for the public, but also for the industry. As noted above, a group of major multinational companies with significant Internet presence, recently unveiled its own proposed consumer protection guidelines that include the adoption of an international system of Online ADR.¹¹ The guidelines were presented at a recent FTC workshop, and were proposed by industry leaders such as America Online, AT&T, Dell, IBM and Microsoft. These companies recognize the value that online consumer safety brings to their companies, and recognize that establishing an international system of Online ADR addresses some consumer fears about accountability. The proposal calls for any company signing on to it to abide by a set of guidelines, including: full disclosure of the terms of sale, opportunity to review a transaction, and disclosure of all costs involved in the transaction including shipping.¹²

The proposal has not received widespread approval. For instance, the plan does not fail to address what if any laws will apply internationally, nor does it provide for a review of non-B2C transactions.¹³ Thus transactions arising out of auction sites, which currently make up the majority of consumer complaints, are not addressed by this proposal. While some consumer advocates have criticized the plan, it is important nonetheless, that industry has recognized the need for effective consumer complaint resolution in the global marketplace.

Alternatives to Online ADR

Certainly there are alternative methods to dispute resolution other than Online ADR. These include credit card charge back mechanisms, complaint resolution mechanisms established by merchants, consumer complaints to state attorneys general offices, consumer protection agencies, small claims court, and litigation. Consumers are free to utilize any one of these methods of dispute resolution, but as with all options certain drawbacks do exist.

For example credit card mechanisms generally take a long period of time and do not typically utilized cooperation between the consumer and the merchant to reach a resolution. Rather the process requires an expensive investigation on the part of the credit card company. Complaint resolution mechanisms offered by merchants may be an intelligent alternative. SquareTrade.com began as such a service. A problem with this approach may be the vastly different approaches taken by one merchant as compared with another, as well as the lack of accountability of an in-house service.

Complaints to Attorneys Generals offices and consumer protection agencies have traditionally been a preferred method of resolving disputes. This method may not be the most effective online. In the current ongoing survey of the 50 states Attorneys General's Offices by the authors of this report at the University of Washington's Center for Law, Commerce and Technology, the majority of AGs have yet to seriously address Internet related complaints. While most have some experience with consumer complaints of this nature, states have been slow to allocate funds specifically to Internet complaints. Yet the experience Attorneys General do have with existing channels of Online ADR may prove to be a means to create fairness and effective consumer protection in the Online ADR context.

Small claims procedures and litigation has been traditional method of resolving most transactional disputes. Unfortunately, as previously discussed traditional litigation does not lend itself to Internet transaction due to its high costs and the existing congestion of the court system. Furthermore, while small claims courts often provide a venue for disputes of smaller amounts, the ubiquitous nature of the Internet does not lend itself well to this venue. A merchant in London is not likely to show up in a Seattle municipal small claims court. Online ADR may be a proxy for small claims courts - creating, in essence, virtual small claims courts for citizens from multiple jurisdictions.

Thus while existing complaint resolution mechanisms, present viable options for many types of transactions, they may be less well equipped to handle Internet complaints for which Online ADR may be a viable alternative. Even if traditional mechanisms continue to provide an avenue for some consumer complaints, the main issue is whether online ADR can provide a needed supplement to the existing menu of options.

Survey of Online Alternative Dispute Resolution Providers

The following is a representative sample of the various ADR Providers of Online ADR. The sample is meant to present the range of services and methods utilized by Online ADR providers. While some ADR Providers have developed well thought out and organized Online ADR processes, others have only rather loosely organized processes that are still in the development stages.

The various ADR Providers have different origins, which may affect their methods of dispute resolution. For instance, those initiatives from the public sector, and academia tend to lack proprietary technology that contributes to the dispute resolution process. On the other hand, privately funded initiatives have taken to utilizing and developing technology that contributes to the process. Furthermore, some ADR Providers are focussed on one or two specific types of transactions, whereas others tend to address a broader range of disputes. Some ADR Providers have developed processes that are geared especially toward one type of claim, for instance insurance, or domain name dispute resolution. Others have less focussed approaches that address a variety of disputes.

Generally, all Online ADR providers fall into one of four categories or a combination thereof. The categories are Arbitration, Mediation, Negotiation, and so-called "Peer Pressure" services. (see Data Chart 1) Arbitration services actually decide cases brought before them. Generally, the parties have agreed by contract to be bound by the decision. Mediation services are generally designed to facilitate communication and cooperation between parties. The services utilize email or some other form of proprietary communication software to allow communication between the parties and the mediator. Online Negotiation services are currently the most automated Online ADR services and are most often applied in the insurance claims settlement arena. These services rely on proprietary software that accepts offers and demands; once the parties offer and demand are within a certain range the case settles. Parties to a negotiation have generally agreed to be bound by the negotiated sum and thus are generally precluded from seeking relief in the courts.

Peer Pressure services are a child of the Internet. Traditionally when individuals have been upset with the quality of product or services, they have turned to mass media to tell their story and create negative press about a particular company. The Internet is the ultimate way for private individuals to make their complaints public thus encouraging companies to reach a resolution with them before such a disclosure. Companies using this approach generally use it as an incentive in conjunction with an online mediation service.¹⁴

Cost

Currently Online ADR providers use a wide range of fee structures, although generally the fees are less expensive than traditional litigation. There is no one fee structure that appears to be dominant, although it is common for companies to employ a filing fee, a service fee, as well as a settlement fee. Some companies skip one of these, but most do not employ a single sum fee. Several companies, such as Webdispute.com and Onlinemediators, have developed scaled fees that are dependent on the amount in controversy.

Response Time and Caseloads

While the courts face heavy caseload, which often means that a particular case may not be heard for months, many Online ADR providers are able to settle disputes within a matter of days. For example Squaretrade.com settles most disputes within 10 to 14 days.¹⁵ Certainly, Online ADR is heavily dependent upon the response time of the parties involved, and thus the time required to resolve a dispute is often more dependent on the parties' response times than a back log of the system. Although there is currently no independent literature on the caseload of Online ADR providers, no provider appears to be at their maximum capacity. Currently almost every ADR Provider points to the efficiency of their system as a reason for using Online ADR rather than the court system.

Personnel

The credentials of arbitrators and mediators are essential to establishing a trustworthy online arbitration or mediation service. Although standards for traditional mediators and arbitrators do exist¹⁶, no industry standard for online mediators is currently being used. As previously mentioned a coalition of industry partners recently unveiled a proposal for an international dispute resolution process.¹⁷ Although details of this plan have yet to be ironed out, it is likely to include standards for mediators.

Presently arbitrator and mediator standards are established the individual ADR Providers. While some ADR Providers do not explicitly disclose how their mediators are chosen, nor what standards they must meet, Disputes.org and Onlinemediators have been with respect to their selection methodology. Disputes.org publishes a list of law professors, and lawyers that they use as arbitrators and allows the parties weigh in on which arbitrators work on a particular case.¹⁸ Onlinemediators not only set up standards for its mediators, but also requires that they operate according to the Model Standards of Practice for Mediators of the American Bar Association. Certainly this is one area where disclosure and regulation will be key to the success of the Online ADR industry. Without the adoption of a uniform set of standards for online mediators or arbitrators, Online ADR is less likely to become a legitimate alternative to the courts. As the ADR Providers become more established, this will certainly become an issue they will all have to address.

The survey below addresses the characteristics of each ADR Provider and catalogues the variety of approaches currently available.

Better Business Bureau Online (BBB Online)¹⁹

The Better Business Bureau Online recently opened up its online dispute resolution service. The BBB Online is backed by 86 years of experience of the Better Business Bureau's involvement in self-regulation and alternative dispute resolution. Their services are now available online for consumers with online privacy complaints against both BBB Online program participants or non-program participants.²⁰

Process

BBB Online is one of the most well developed Online ADR web sites and has extensive procedural requirements for processing a dispute. The resolution process begins with a consumer contracting the Dispute Resolution Intake Center at which point a claim must meet a series of eligibility requirements to move forward²¹.

Before a claim can progress, a consumer must demonstrate that they have made a good faith effort to settle the complaint. Once this prerequisite is met, a consumer submits a description of the complaint as well as any correspondence with the merchant in question. The respondent is then contacted and asked to respond within 15 days. The response is the forwarded to the complainant, excluding any confidential information. If the complainant does not respond within ten days the PPRS, the body that decides the case, may then take up the case and come to a decision.

If the claimant files a response, a respondent is given ten days to file a supplemental response. One a response is filed or the ten days have expired the PPRS then takes up the case. A PPRS decision results in either no corrective action, corrective action, or an appeal by the respondent. If an appeal is filed its decision is final, and non-compliance with the decision will result in a forwarding of the case to the relevant governmental agency.

clickNsettle.com²²

clickNsettle.com is a wholly owned subsidiary of NAM (National Arbitration and Mediation), a national provider of arbitration and mediation services and electronic case management software. It is the self-proclaimed world leader in electronic dispute resolution, and seeks to resolve disputes with a monetary settlement quickly and inexpensively. clickNsettle.com addresses all kinds of disputes.

Process

The process begins with one party registering and providing information regarding whether they are the plaintiff or defendant, a general description of the dispute, contact information for the adverse party, and an initial monetary demand (if they are the plaintiff) or offer (if they are the defendant). The other party is then invited to negotiate.

Who may file a complaint?

Anyone with an online dispute that sets up an account with clickNsettle.com may have a dispute resolved.

Methodology

As opposed to other Online ADR sites, clickNsettle.com utilizes a fully interactive web site to settle disputes.²³ One party submits their dispute and the amount of their initial offer or demand. The other party responds with their offer or demand. (clickNsettle.com calls a submitted dispute a "case"). Either party may submit new demands and/or offers at any time for a period of 60 days. All offers and demands are "blind". Neither party knows the amount of the other party's offer or demand. If the last demand is ever within 30% of the last offer, the case will settle for the midpoint of the offer and demand.

Offers and demands must follow an established framework. Each new offer must increase by a minimum of 5%. Each new demand must decrease by a minimum of 5%. This is intended to promote good faith negotiating. All figures submitted are blind to the opposing party, and therefore the only number shown is the other party's actual bid amount. Either party may terminate a case at any time. Cases not settled will expire after sixty days.

The case will settle if one of the following occurs:

Pricing

In order to negotiate on clickNsettle.com you must have an approved account or provide credit card information. Corporations that are legally registered in the United States may apply for a credit account with clickNsettle.com. All other users of the system will be required to provide credit card information at the time they submit or respond to a case.

Details:

The submitting party pays a $15.00 submission fee to enter a case into the system. Payment of the submission fee allows the submitting party to enter their initial offer or demand at no-charge.

For each offer or demand entered during the first 20 days of the Negotiation Period each party pays $10.00 per offer or demand. For each offer or demand entered during the next 20 days of the Negotiation Period, each party pays $15.00 per offer or demand. For each offer or demand entered during the last 20 days of the Negotiation Period, each party pays $20.00 per offer or demand.

If the case settles for less than $10,000, each party pays a $100.00 settlement fee. If the case settles for $10,000 or more, each party pays a $200.00 settlement fee.

clickNsettle.com fees are billed to the parties' accounts or credit cards upon settlement, expiration or termination of a case. All fees are payable in US Dollars. Finally a detailed invoice is sent via US Mail.

Miscellaneous

Parties to a clickNsettle.com dispute must agree to be bound by any settlement reached. Any settlement, therefore, serves as a bar to any further claim or cause of action relating to or arising out of the facts and circumstances of the subject case. The claimant agrees to furnish the defendant with a legal release and thus agrees not to sue the defendant in a court of law unless the defendant fails to pay settled amount. In the event that a settlement is not reached, the parties are free to pursue traditional litigation.

Cyberarbitration.com²⁴

Cyberarbitration.com provides online arbitration and dispute resolution. The site focuses on domain name dispute resolution as well as general cyber dispute resolution. The Cyberarbitration.com process begins with the signing of a Cyberarbitration Agreement. The parties must then place a deposit to initiate the dispute. When the funds are received a cyberarbitrator is appointed to the case, and the parties file claims and counterclaims along with the necessary documents with the arbitrator. Generally evidence is presented electronically online. If agreed upon by both parties, a personal hearing is held. After such a hearing a cyberaward is granted and an agreement over the cyberarbitration is signed.

Cybercourt²⁵

Cybercourt.org is a German site providing online dispute resolution. It targets disputes arising from online activity including online banking, teleservices, and insurance claims. The service provided is mediation.

Process

Cybercourt is a voluntary process that begins with one party submitting a case concerning an online activity. For the claim to proceed, the opposing party must agree to resolve the dispute via Cybercourt. An interesting aspect of Cybercourt is that it provides the possibility for the parties to remain anonymous.

Who may participate?

The process may be initiated by anyone who has a case concerning an online activity.

Methodology

The process begins with a complaint that is filed via email. Subsequent communications take place either through Internet or teleconferencing. Cybercourt then contacts the opposing party and asks them to participate in dispute resolution. A Cybercourt judge is then assigned the case. The judge is responsible for explaining the rules and procedure to the participants. The parties are then allowed to present their cases, which are subsequently summarized by the mediator. Within this process, the parties present their evidence and may call experts to voice particular opinions on the issues in dispute. The mediator then works with the parties to develop an amicable solution, which when finalized is recorded in a written document.

Pricing

The cost is borne by the party initiating the complaint and is determined on a case by case basis.

Miscellaneous

The Cybercourt process is presumptively non-binding unless each party to the dispute agrees to make it dispute. Thus the system does create any ramifications arising from party noncompliance.

Cybersettle.com²⁶

Cybersettle.com provides an interactive service that provides confidential, automated, online dispute resolution. The system was designed to provide a more productive settlement method using Internet technology to create an unbiased resolution tool. Cybersettle.com specializes in United States. Property and Casualty insurance industry. As of May 2000, cyber settle has processed 16000 claims for over 25 million dollars.

Process

Cybersettle accepts two types of claims; represented and unrepresented. Represented claims are those in which the claimant has engaged an attorney. Unrepresented claims are negotiated and settled directly between an insurance company and a claimant without attorney representation.

Insurance claims representatives register claims on Cybersettle by submitting three confidential settlement offers on a secure web site. The Cybersettle call center then contacts the opposing party via email, fax and telephone to inform them of the possibility of settling online.

The parties then submit their settlement offers and demands into the cybersettle system. Settlement occurs if the settlement offer and demand amounts are within the lesser of 30% or $5,000 of each other, at which point the parties are notified that the claim has settled for the median amount. Neither party has access to the offers and demands other then the final settlement amount.

Settlements obtained through Cybersettle are binding on both parties, thus parties are encouraged to sign good faith clauses as a part of their complaints. Before any resolution can take place both parties must agree to be bound by Cybersettle's participation agreement.

Pricing

The costs of using Cybersettle are apportioned between the parties involved and are divided as follows: the party initiating the claim will pay a $25.00 case submission fee once three rounds of offers are uploaded on Cybersettle's system. Once the respondent has engaged the system and entered demands, the initiator is charged an additional $75.00. If the case does not settle using Cyber settle these will be the only costs. If the case settles, both sides pay a maximum of $200.00 per side. If no settlement is reached the respondent will bear no costs.

Disputes.org/eResolution.ca²⁷

Disputes.org/eResolution.ca is a dispute resolution provider for domain name disputes. Currently Disputes.org/eResolution.ca only accepts complaints regarding ".com," ".org," or ".net" domain names. In January of 2000, Disputes.org was chosen as one of the Internet Corporation for Assigned Names and Numbers' accredited providers of online domain name dispute resolution.²⁸ As such they apply ICANN's Uniform Domain Name Dispute Resolution Policy.²⁹

Process

A dispute becomes available for resolution when a complainant initiates an administrative proceeding by submitting a complaint on the system. Pursuant to the agreement that was signed when the domain name holder registered the domain name, she/he must participate in the online arbitration.

The process begins when a person submits a complaint and provides the names and contact details of three candidates to serve as one of the panelists in the case she/he chooses for a three member panel. Disputes.org then forwards the complaint to the respondent, who submits a response. If the respondent does not submit a response the panel decides the dispute based on the complaint. In the case of a single-member panel, Disputes.org appoints the panelist from its list of panelists. In the case of a three-member panel each party may provide the names of three candidates to serve as one of the panelists and Disputes.org appoints the third. The panel is required to forward a decision within fourteen days of its appointment. A final decision is rendered within 60 days of the submission of the complaint.

Methodology

The process utilizes an Internet web site and email to communicate with its clients. Complaints and their responses are posted to the web site using ordinary Internet access. Once a decision is reached a full opinion is published on the site. The process is open rather than confidential. A losing party does not lose its right to appeal and may pursue its claim in a court of competent jurisdiction.

Pricing

Complainant pays fees ranging from $750 to $3,500 depending on the panel composition and the number of domain names in dispute. Only when the complainant has chosen a single-member panel and respondent a three-member panel, will the fees be shared equally between the parties.

I-Courthouse.com³⁰

I-Courthouse provides users with access to online adjudication, dispute evaluation and resolution. I-Courthouse handles all kinds of disputes and does not limit itself to disputes arising from online transactions. It is I-Courthouse's goal to become the courthouse of the Internet and become accepted as an ADR option by the courts and government.

Process

The I-Courthouse process is open to anyone, with a dispute. I-Courthouse is a voluntary process that becomes available when a user registers and fills out a plaintiff claim form. As a precondition to using the settlement process, a user must have an approved account with I-Courthouse and accept the user agreement and rules. Without an express written agreement, the parties are not excluded from seeking further redress in a court of law.

The first step in the process is to register and submit a case on the I-Courthouse web site. The user can then chose to obtain settlement through the Peer Jury (which is open to the public) or the Panel Jury (which is private). Each registered plaintiff and defendant is issued a Trial Book upon registration and must complete it within 72 hours of registering.

An email summons is sent to the defendant, and she/he must then register as a defendant within ten days. A defendant failing to register within ten days may have verdicts rendered against them solely based on the plaintiff's trial book. The parties may agree as to what portion of the verdicts will constitute a decision. Jurors then read and review the entire contents of each party's trial book. They then render their verdict, which shall not award damages in excess of the damages requested by a plaintiff. A case remains open until dismissed by the plaintiff, either because the parties agree that there has been a final verdict, or because the parties have settled the case.

Methodology

The I-Courthouse process is initiated on the Internet. Communication takes place both by email as well as the I-Courthouse web site where verdicts are posted. Although I-Courthouse utilizes a password protected web site it does not make any warranties as to the security of information passing through their site.

Pricing

Peer Jury is free. Panel Jury costs $200 per panel, per party.

iLevel³¹

iLevel is a third party community which uses "peer pressure" to entice vendors to effectuate resolutions with their customers. It provides this service to B2C and B2B companies. The company focuses their efforts on the premise that disgruntled customers are a liability, and that it is in a vendor's best interest to settle with their customers. iLevel sites data generated by Arthur Anderson stating that:

• The cost of acquiring a new customer is 5 to 15 times as expensive as keeping one.
• 85% of satisfied customers continue to purchase from the company.
• A 5% increase in customer satisfaction will yield an 18% drop in operations costs.
• Repeat customers account for 80% percent of revenue. One unhappy customer tells 10.

Thus iLevel attempts to leverage the power of the market to create an incentive for vendors to engage in communication with the customer. The service provided is not a mediation or arbitration, but rather more along the lines of a community bulletin board or newspaper that allows subscribers to post their disputes online.

Process

Although the iLevel site targets online disputes, it provides a venue all kinds of disputes. In order to file a complaint a complainant must first become a member of iLevel. The process begins with the registration of complaint by a disgruntled customer. Next the vendor in question (VIQ) is contacted and asked to participate in a discussion in order to resolve the dispute. The information regarding both parties and their complaint is held in confidence until the parties have had at least two opportunities to reconcile. If no resolution is reached, all of the information, including the negotiation between the parties, is made public on iLevel's web site. Membership or non-membership does not shield a party from the public posting of a dispute. Unlike traditional litigation, which can take years to run its course, the iLevel service can take no longer than 30 days. Either the parties settle within 30 days or the dispute is made public.

Price

iLevel does not charge per dispute like most other Online ADR providers. Instead it charges a membership fee that is good for one year. There are no hourly fees, no expert's fee, nor any other indirect costs to either party. Additionally a VIQ is not required to become a member to participate. Through this scheme iLevel attempts to create a system that is not limited by the high costs of the resolution process.

InternetNeutral³²

InternetNeutral offers mediation services to resolve disputes between Internet businesses and their customers or suppliers. It is one of the oldest sites providing ADR online, having been formed in 1997. Internet businesses, their customers and their suppliers may file InternetNeutral complaints.

Process

A party initiates the process by filing a mediation demand or request. Subsequently, InternetNeutral invites the opposing party to participate in mediation. If the other party agrees, InternetNeutral proposes a mediator and supplies information to allow the parties to ascertain whether the proposed mediator has any financial or personal interest in the result and is otherwise qualified. If the parties agree, the mediator is appointed to the case. A mediation date is then scheduled. The mediator then assists the parties in settling the dispute.

Pricing

A $250.00 fee is required with both the claim and the response. For mediations via email only, the fees range from $1-$6 per minute depending on the amount in dispute. For online mediation other than by email, the fee is $125.00 per hour. These fees assume provision of services between the hours of 7am and 7pm, local time of the mediator, and charges outside of these windows are 50% greater. Generally the parties share the fees equally.

Miscellaneous

Mediation is non-binding. Parties may always seek redress in a court of law. Once a settlement is reached, it is binding only to the extent it would be binding under state contract law. The InternetNeutral process does not prescribe any consequences for non-compliance. Generally settlement is reached in 85% of mediations.

NewCourtCity.com

NewCourtCity.com provides a variety of legal services, and specializes in alternative dispute resolution processes. It is currently in the process of establishing an online mediation venue called the Virtual Mediator.

The on-line Virtual Mediator is expected to be an easy and effective method of resolving financial disputes for considerably less expense than traditional litigation. The Virtual Mediator is a private, confidential process that claims to allow business and individuals to resolve disputes without public exposure or concern themselves about setting adverse legal precedents. As of June 6, 2000, although the main web site was operational, the Virtual Mediator had yet to go live.

Onlinemediators³³

Onlinemediators offers online mediation for settling disputes. It has been online since January 2000, and services all kinds of disputes. The Mediation Information & Resource Center sponsor Onlinemediators.

Process

The process begins with a registration of the complaint by completing a confidential information form. This form is only made available to the complainant and the assigned mediator. Onlinemediators then contacts opposing party and seeks to obtain their consent to participate in online mediation. If the parties agree to mediation, a mediator is assigned to the case. The mediator then initiates a dialogue with the parties and assists them to reach agreement. No deadlines are imposed for settlement, and the mediator will check and respond to online mediation email daily Monday through Friday. When an agreement is reached, the parties complete an agreement form. The process concludes with an evaluation of the responsiveness, courtesy and effectiveness of the mediator and the mediation experience.

Methodology

Internet web page and email are used for communication.

Pricing

Onlinemediators uses a pricing system based upon the amount in dispute. For disputes under $2,000, a rate of $36.50 per hour is charged to each party for up to two hours. Beyond this time period, any fees are negotiated between the clients and the mediator. For disputes of $2,000 to $10,000, a rate of $50 per hour is charged to each party for up to six hours of services. Beyond this, any fees are negotiated. Disputes of $10,000 to $50,000, carry a rate of $100 per hour for each party for up to two hours of mediation. Beyond two hours the rate is $62.50 per hour, per party. Over $50,000, a fee of $100 per hour, per party is charged for up to two hours of service. Beyond this the fee is $75 per hour, per party

Miscellaneous

Mediators at Onlinemediators are required to have a minimum of 30 hours of mediation skills training, a minimum of two years mediation experience, and at least 10 traditional face to face mediations. When the amount in dispute is over $2000, the mediators are required to have at least 100 hours of mediation skill training and have completed at least 50 face to face mediations. Even with such extensive training parties may be dissatisfied with the impartiality or neutrality of the mediator. If a party is dissatisfied, it may request that the mediator withdraw him or herself, and seek agreement with the other party to accept another mediator.

Onlinemediators require their mediators to operate according to the Model Standards of Practice for Mediators of the American Bar Association. Under these standards confidentiality is given a great deal of importance. Thus, unless waived, a mediator will maintain confidentiality and will not share confidential information with either party. Furthermore, no mediation communications may be utilized in any subsequent contested action between the parties.

A resulting settlement will not be binding on either party unless the parties have created an express contract stating their intentions to be bound by the settlement.

Online Ombuds³⁴

Though currently under construction, this site has been offering online mediation services since 1996. Online Ombuds has focused primarily on disputes arising from online transactions, but accepts any type of dispute. The Online Ombuds is a part of the dispute resolution arm of the Mediation Information and Resource Center. The service is available to all types of clients, corporate or private individual.

Settlementnow.com35

Settlementnow.com offers an online computer assisted mechanism for settling insurance claims. The service provided is similar to Cybersettle.com, in that it is based on a monetary offer-demand negotiation process that specializes in insurance claims. As opposed to Cybersettle though, Settlmentnow.com utilizes a flat fee of $219.00.

Process

A claimant will begin the process by setting up an account. He will be asked to input all of the pertinent information regarding the dispute, including the amount of the demand. At this point, Settlementnow.com will contact the claims adjuster and express that the claim has been brought on Settlementnow.com's online forum and is available for settlement. The adjuster will then be asked to make a demand. As contrasted with Cybersettle, the claimant and the adjuster will have an unlimited number of demands. Settlementnow's computer software analyzes the demands to see if a settlement has been reached. The claim will settle when both claims are within a range equivalent to 1/3 the value of the other and will be settled for the median amount.

In order to facilitate the process, once a demand is entered, the claimants will be notified of the lowest possible settlement amount before finalizing their demand. Once and offer is entered, claims adjusters will be notified of the highest possible settlement amount before finalizing their offer. If the offer and demand differ by more than 1/3, the claim will not settle. Once settlement has been achieved, the parties receive both an online notification and an email notification.

Miscellaneous

Users of Settlementnow must agree to be legally bound in writing by all settlements arising from the negotiation. Settlements will be binding on both parties and shall preclude them from seeking redress in a court for the same claim. In addition, parties are barred from bringing any other suit arising from the same facts from which the claim arose.

Negotiation of disputes using this model has also been adopted by Settleonline.com. Settleonline has extended the model to cover all kinds of dispute where a monetary amount is in dispute.

SquareTrade.com³⁶

SquareTrade.com provides customers of e-commerce sites with a new medium for buyers and sellers to settle disputes. In addition they recently began to function as a certification authority. SquareTrade.com utilizes impartial mediators to reach fast and fair solutions. They seek to avoid the high costs of litigation and provide an affordable forum to hear disputes arising online, in an online forum. In this manner they seek to "increase trust" as customers transact online.

WEBdispute.com^TM 37

WEBdispute.com is an online arbitration service for online commercial disputes arising in both B2B and B2C contexts. Webdispute.com provides parties with three separate forums for resolving disputes; document/email hearing, telephone hearing, and in person hearing. These forums have been developed to accommodate the unique circumstances of web-based disputes. Parties to a dispute must decide on the appropriate forum for having their dispute heard. The parties must understand that Web based disputes present particular problems including proximity of parties, which may result in relinquishing the right to a face-to-face hearing. However, using web-based forums, each party is given adequate opportunity to present their case and refute their opponent's case. Although they are not required to, the parties may agree to have the arbitration be binding.

Virtual Magistrate38

Virtual Magistrate (VMAG) is dedicated to providing a low cost alternative to method to litigation and traditional methods of alternative dispute resolution. The service accepts complaints arising from the use of online systems such as spamming, defamation, removal of a message posted on a web page, contract, and property or tort dispute regarding online issues. The system was first developed in 1995, and recently received a facelift in 2000.

Process

The VMAG process is similar to most other online arbitration systems. A party must file a complaint arising from an online activity. VMAG contacts the opposing party, and they are invited to answer the complaint and take part in an arbitration. An arbitrator is then assigned to the case, and in most instances will request more information. The magistrate will attempt to reach a decision with in 72 hours after the acceptance of a complaint. This method is very appropriate to the online forum due to the rapid nature of change in content on the Internet.

Under typical circumstances the decisions of VMAG will be published and will not remain confidential after a decision has been made. The decisions of VMAG may be reconsidered but will not be subject to appeal. The VMAG Project will seek to persuade parties to agree, in consideration to the dispute resolution process, to be bound by the decisions. Unfortunately the system does not provide any consequences for non-compliance with the decisions. The process is provided free of monetary charge and is provided via the Chicago-Kent College of Law, Illinois Institute of Technology.

Endnotes

1. Letter from Denis M. Wright, Assistant Attorney General - Chief, Consumer Affairs, State of Alabama Office of the Attorney General, to Anita Ramasastry, Assistant Professor of Law, Center for Law, Commerce and Technology (hereinafter "CLCT"); (May 16, 2000); Letter from Don Stenberg, Attorney General, and Marti Crawford, Consumer Specialist, Consumer Protection Division, State of Nebraska, Office of the Attorney General, to CLCT, (May 2, 2000); Electronic letter from Jay I. Ashman, Assistant Attorney General, Consumer Assistance Program, Vermont Attorney General's Office, to CLCT, (May 22, 2000); Letter from Jill L. Miles, Deputy Attorney General, State of West Virginia Office of the Attorney General, to CLCT, (May 31, 2000) ; Electronic letter from Judy Austad, Attorney General, Consumer Protection and Antitrust division, North Dakota Attorney General's Office, to CLCT , (May 22, 2000); Letter from Jill L. Miles, Deputy Attorney General, State of West Virginia Office of the Attorney General, to CLCT, (May 31, 2000); Letter from David B. Irvin, Senior Assistant Attorney General, Commonwealth of Virginia, Office of the Attorney General, to, (May 23, 2000); Letter from Todd Letterman, Director of Consumer Protection, Commonwealth of Kentucky, Office of the Attorney General, to CLCT , (May 12, 2000); Letter from Bruce Meeks, Executive Deputy, State of Florida, Office of the Attorney General, to CLCT , (July 11, 2000); Letter from Scott J. Davis, Assistant Attorney General, St. Thomas, US Virgin Islands, Department of Justice, Office of the Attorney General, to CLCT , (May 12, 2000) (Letters on file with the CLCT).

2. See Letter from David B. Irvin, Senior Assistant Attorney General, Commonwealth of Virginia, Office of the Attorney General.

3. See Id.

4. See Id.

5. Attorney General of Washington, Consumer and Criminal Justice Cyber Clearinghouse, http://www.wa.gov/ago/clearinghouse/, last visited June 16, 2000.

6. New York State Internet complaint forms http://www.oag.state.ny.us/internet_complaint/, last visited June 16, 2000.

7. Attorney General Eliot Spitzer, Ensuring the Integrity of Electronic Commerce, Address at Annual Meeting of the New York State Business Council, September 23, 1999, http://www.oag.state.ny.us/press/statements/e_commerce.html.

8. Ethan Katsh, Summary of presentation to Ohio State University Law School Journal of Dispute Resolution, Symposium on ADR in Cyberspace (November 11, 1999), http://www.osu.edu/units/law/JDR/katshpaper.htm.

9. For example the Chicago-Kent College of Law, Illinois Institute of Technology's Virtual Magistrate http://www.vmag.org/, last visited June 8, 2000.

10. SquareTrade.com, http://www.squaretrade.com, has been a leader in this area. Though it currently handles complaints related to all aspects of e-business, it began as a pilot program within the eBay auction site. Last visited June 8, 2000.

11. John Swartz, Online Firms Plan Retail Guidelines (visited June 10, 2000) http://www.washingtonpost.com/wp-dyn/articles/A2939-2000Jun5.html.

12. See id.

13. See id.

14. For example see http://www.ilevel.com.

15. http://www.squaretrade.com, last visited June 8, 2000.

16. For example Model Standards of Practice for Mediators of the American Bar Association.

17. Swarts, http://www.washingtonpost.com/wp-dyn/articles/A2939-2000Jun5.html.

18. eResolution (Disputes.org) Supplemental Rules, http://www.eresolution.ca/services/dnd/p_r/supprules.htm.

19. http://www.bbbonline.org, last visited June 16, 2000.

20. http://www.bbbonline.org/businesses/privacy/dr/index.html, last visited June 16, 2000.

21. BBB Online Guide for filing a complaint, http://www.bbbonline.org/consumers/drguide.htm, last visited June 16, 2000.

22. http://www.clicknsettl.com, last visited June 8, 2000.

23. Though clickNsettle.com advertises a fully interactive site on which disputes are settled, all demands and offers are communicated via email.

24. http://www.cyberarbitration.com, last visited June 8, 2000.

25. http://www.cybercourt.org, last visited June 8, 2000.

26. http://www.cybersettle.com, last visited June 6, 2000.

27. http://www.disputes.org, last visited June 9, 2000.

28. Another ADR provider chosen by ICANN is Arbitration-Forum.com. It is a part of The National Arbitration Forum which has been in existence since 1986. http://www.arbitration-forum.com, visited June 11, 2000.

29. http://www.icann.org/udrp/udrp-policy-24oct99.htm, last visited June 9, 2000.

30. http://www.i-courthouse.com/, last visited June 9, 2000.

31. http://www.ilevel.com, last visited June 15, 2000.

32. http://www.internetneutral.com/, last visited June 9, 2000.

33. http://www.onlinemediators.com, last visited June 9, 2000.

34. http://www.onlineombuds.com, last visited June 9, 2000.

35. http://settlementnow.com, last visited June 8, 2000.

36. http://squaretrade.com, last visited June 8, 2000.

37. http://webdispute.com, last visited June 16, 2000.

38. http://www.vmag.org/, last visited June 8, 2000.