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67 S. C. L. Rev. 329 (2015-2016)
What We Know and Need to Know about Online Dispute Resolution

handle is hein.journals/sclr67 and id is 345 raw text is: WHAT WE KNOW AND NEED TO KNOW ABOUT ONLINE DISPUTE RESOLUTION Ethan Katsh & Colin Rule Online Dispute Resolution (ODR) is the application of information and communications technology to the prevention, management, and resolution of disputes.' ODR originally emerged in the mid-1990s as a response to disputes arising from the expansion of eCommerce.2 During that time the web was extending into commercial uses, becoming an active, creative, growing, and, at times, lucrative space. Such an environment, with significant numbers of transactions and interactions (where relationships are easily formed and easily broken) seemed likely to generate disputes. At the same time, it was also clear that disagreements emerging from online activities could not be resolved through traditional offline channels. With parties likely to be at a distance from each other and incapable of meeting face-to-face, these new disputes could only be resolved online. This meant that new tools and resources that exploited the capabilities of digital communication and information processing by computers had to be developed. Now, some twenty years later, ODR is the fastest growing area of dispute resolution, and it is increasingly being applied to other areas, including offline and higher value disputes. This rapid expansion merits a discussion of what we have learned about ODR so far, and what questions we still need to answer. I. WHAT WE KNOW ABOUT ONLINE DISPUTE RESOLUTION One thing we know about Online Dispute Resolution (ODR) is that it has evolved greatly in its fairly short life. Initial ODR processes generally mimicked offline alternative dispute resolution (ADR) processes.3 Early experiments in resolving disputes online were often labeled Online ADR or E-ADR. In the first significant ODR pilot project, with eBay in the late 1990s, an experienced human mediator used email to interact with the disputants using the same strategies with which he engaged disputants offline (e.g., assisted storytelling Director of the National Center for Technology and Dispute Resolution, Professor Emeritus of Legal Studies, University of Massachusetts-Amherst. Email: Katshglegal.umass.edu The authors greatly appreciate the suggestions of Leah Wing and Orna Rabinovich-Einy. Co-Founder and Chief Operating Officer of Modria.com, Inc. (an online dispute resolution software company in Silicon Valley, California) and the former Director of Online Dispute Resolution at eBay and PayPal. Email: crule@modria.com. 1. See Arthur M. Monty Ahalt, What You Should Know About Online Dispute Resolution, PRAc. LITIGATOR 22 (Mar. 2009), https://www.virtualcourthouse.com/index.cfm/feature/1_7/what- you-should-know-about-online-dispute-resolution.cfm (stating that ODR allows multiple disparate policies to settle disputes using the Internet). 2. See id. 3. See Ethan Katsh, Online Dispute Resolution: Some Implications for the Emergence of Law in Cyberspace, 21 INT'L REV. L. COMPUTERS & TECH. 97, 99 (2007). 329

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