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38 U. Tol. L. Rev. 193 (2006-2007)
Online Mediation: Where We Have Been, Where We Are Now, and Where We Should Be

handle is hein.journals/utol38 and id is 207 raw text is: ONLINE MEDIATION: WHERE WE HAVE BEEN, WHERE WE ARE NOW, AND WHERE WE SHOULD BE Sarah Rudolph Cole * and Kristen M Blankley** I. INTRODUCTION T HE increased use of online mediation to resolve disputes arising in commercial transactions is challenging our traditional notions about both litigation and alternative dispute resolution (ADR). Historically, most commercial transactions occurred face-to-face between people who generally shared a relatively well-defined set of background norms. Typically, the methods for handling these disputes were marked by two characteristics: (1) face-to-face meetings (whether arbitration, mediation, or in the courtroom), and (2) explicit or implicit reliance on the shared norms as a tool to inform the dispute resolution process. The Internet challenges these assumptions in two ways. First, the market has become much less local. This characteristic is already present in today's commercial transactions because of the increased use of mail, faxing, and telephone. For example, the Internet has opened up the ability of buyers in Singapore to talk to and transact with sellers in Des Moines or. vice versa. When disputes arise in such contexts, however, sitting down together and working out a mutually beneficial solution is difficult. Because of the distances involved, the costs associated with filing a legal action in a foreign country, and the difficulty in establishing a jurisdiction to hear the case or enforce a judgment, an online, informal dispute resolution mechanism may be the only way to resolve this new set of commercial disputes. At its most basic level, online dispute resolution (ODR) is any method by which parties attempt to resolve disputes online. These parties may decide to send each other e-mail messages and negotiate from a distance, or they may enlist the help of an intermediary or mediator to facilitate the negotiations. For some parties, however, the use of the ODR process alone is not enough. These parties enhance ODR with a virtual presence, such as teleconferencing or videoconferencing to achieve a setting similar to a face-to-face chat. Additional investigation is necessary to determine whether these substitutes work, to what * Squire, Sanders & Dempsey Designated Professor of Law, Moritz College of Law, The Ohio State University. B.A., University of Puget Sound; J.D., University of Chicago Law School. I would like to thank Sabrina Riggs for her excellent research assistance. ** Associate, Squire, Sanders & Dempsey. B.A., Hiram College; J.D., Moritz College of Law, The Ohio State University.

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