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1998 BYU L. Rev. 1305 (1998)
Are We Ready for Mediation in Cyberspace

handle is hein.journals/byulr1998 and id is 1315 raw text is: Are We Ready for Mediation in Cyberspace?
Joel B. Eisen*
The idea of mediating' disputes online has captured the
imagination of the dispute resolution profession. Mediators pro-
pose creating spaces in cyberspace2 where disputes would be
* Associate Professor of Law and Director, Robert R. Merhige, Jr. Center of
Environmental Law, University of Richmond School of Law. B.S., Massachusetts
Institute of Technology; J.D., Stanford Law School. I thank Zygmunt Plater, Karen
Donegan Salter, Lee Scharf, Michael Lang, and my colleagues, Michael Allan Wolf, W.
Wade Berryhill, Ann Hodges, Paul Zwier, John Paul Jones, and Tim Coggins for their
invaluable assistance and comments on earlier drafts of this article. I am indebted to
Paul Birch for his efforts to assist me in understanding the dynamics of online
communities. I would also like to gratefully acknowledge the Law School for its
generous financial support of my research, and thank student research assistants
Terrell Mills and Bethany Lukitsch Hicks for their help and insights about online
communities. Last, but certainly not least, I would like to thank my editor for life,
Tamar Schwartz Eisen. The ideas and opinions expressed herein are my own, and I am
responsible for any errors or omissions.
1. At its most basic level, mediation involves a third party who assists the
disputing parties in reaching a voluntary resolution of their dispute. See, e.g., Henry H.
Perritt, Jr., Electronic Dispute Resolution: An NCAIR Conference (visited Sept. 30, 1997)
<httpAvwwv.Iaw.vill.edulncair/disres/perritt.htm> [hereinafter Perritt, Electronic Dispute
Resolution]; see also Nancy Kubasek & Gary Silverman, Environmental Mediation, 26
&i. Bus. L.J. 533, 536 (1988); V. Lee Scharf, Environmental Dispute Resolution:
Annotated Bibliography, Essays and Guide 1 (Sept. 18, 1997) (unpublished manuscript,
on file with author) (reporting that the EPA's ADR Project Coordinator defines
environmental mediation as a voluntary and informal process in which the participants
select a neutral third party to assist them in reaching consensual agreement concerning
environmental decisions either at issue or in dispute).
The familiar observation about neutrality is worth repeating here. The mediator's
function is to assist the parties not by imposing rules on them, but by helping them
to achieve a new and shared perception of the relationship, a perception that will
redirect their attitudes and dispositions toward one another. Kubasek & Silverman,
supra, at 536 (quoting Lon Fuller, Mediation-Its Forms and Functions, 44 S. CAL. L.
REV. 305, 325 (1971)). The mediator is not a decision maker; she cannot impose a
solution on either side. Richard S. Granat, Creating an Environment for Mediating
Disputes on the Internet (visited Sept. 25, 1997) <http'J/www.law.vill.edu/ncair/
2. The term cyberspace is credited to science fiction writer William Gibson. See,
Todd H. Flaming, The Rules of Cyberspace: Informal Law in a New Jurisdiction, 85 ILL.
B.J. 174, 174 (1997); Ethan Katsh, Law in a Digital World. Computer Networks and
Cyberspace, 38 ViL. L. REV. 403, 414 n.27 (1993) [hereinafter Katsh, Law in a Digital
World]. The term represents the sense of place created by interaction and
communication over online computer environments such as the Internet. Flaming,
supra, at 174.


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