Are We Ready for Mediation in Cyberspace

The idea of mediatingl disputes online has captured the imagination of the dispute resolution profession. Mediators propose creating "spaces" in cyberspace2 where disputes would be resolved electronically.3 Online mediation is not the mere stuff of conjecture. Experiments are already underway on a small scale,4 and it is likely that more online mediation will take place. Cyberspace seems especially well suited to a process that allows parties to resolve disputes without resorting to formal law.5 Because the Internet makes direct links of communication available to anyone, it empowers its users to bypass existing legal institutions.6 Decision making in cyberspace is already private and decentralized.7 "There is," says Dean Henry Perritt, "no such thing as a president or board of directors of the Internet."' In this decentralized environment, we could develop private dispute resolution fora where participants, not judges, would be decision makers. In multiparty disputes, public interest groups already well represented on the Internet9 could use the Internet's grass-roots, pluralistic architecture to develop information for use in the proceeding.lo Among dispute resolution professionals, there is an almost limitless optimism about online mediation's potential. One article confidently asserts that, "In a relatively short amount of time, we will have 'virtual' ongoing mediation and other confidential decision making forums on the Internet . . "11 Another proponent claims mediators could create "a virtual [dispute resolution] architecture that reflects our profession's highest aspirations.""2 Mediators assert online dispute resolution can be done with today's technology.13 They believe it will save the parties money (particularly travel costs),14 foster enhanced communication among participants,l5 and reduce the emotional temperature of disputes.ls Many mediators believe the online setting presents straightforward challenges that can be readily surmounted.17 I disagree. At this stage of the Internet's development, it is still too soon to mediate disputes online because mediators cannot adequately address many difficult issues. Electronic communication is no substitute for the ability of face-to-face conversations to foster important process values of mediation. Given the profession's current orientation to listening and processing oral information, mediators would find it largely impossible to translate their skills to the online setting. The predominantly written character of the online mediation proceeding would create communication breakdowns; this is ironic, as mediators claim disputants' inability to communicate is precisely why mediation is necessary in the first instance.ls Finally, using computers for decision making raises fundamental concerns about societal ordering in the technology age. Online mediation could cede substantial authority for decision making to those who have familiarity with computers and their use. This article addresses these and related issues. I use environmental mediation as a paradigm for online resolution of multiparty disputes, as mediation is the dominant form of ADR"9 in environmental enforcement actions.20 In Part I, I provide a brief model of a hypothetical multiparty environmental mediation proceeding. I describe limits on environmental mediation common to both the online and offline settings, and provide a model for analysis of the hypothetical proceeding. In Parts II and III, I consider limits on online mediation's potential that derive from the electronic character of the proceeding. In Part II, I discuss challenges for online mediation and conclude that such mediation, particularly complex proceedings such as environmental disputes, should be deferred for the time being. In Part III, I discuss additional concerns about the flow of communication in online mediation suggested by an analogy to the dynamics of online communities. My example is the avocational or scholarly groups in which participants post electronic mail (E-mail) messages to a common forum (mailing list forums, or "listservs"2"), which have elements in common with the hypothetical mediation proceeding. …