Tuesday, 30 July 2013

Cyber Law of India:

Introduction

In Simple way we can say that cyber crime is unlawful acts wherein the computer is either a tool or a target or both

Cyber crimes can involve criminal activities that are traditional in nature, such as theft, fraud, forgery, defamation and mischief, all of which are subject to the Indian Penal Code. The abuse of computers has also given birth to a gamut of new age crimes that are addressed by the Information Technology Act, 2000.

We can categorize Cyber crimes in two ways

The Computer as a Target :-using a computer to attack other computers.

e.g. Hacking, Virus/Worm attacks, DOS attack etc.

The computer as a weapon :-using a computer to commit real world crimes.

e.g. Cyber Terrorism, IPR violations, Credit card frauds, EFT frauds, Pornography etc.

Cyber Crime regulated by Cyber Laws or Internet Laws.

Technical Aspects

Technological advancements have created new possibilities for criminal activity, in particular the criminal misuse of information technologies such as

a. Unauthorized access & Hacking:-

Access means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network.

Unauthorized access would therefore mean any kind of access without the permission of either the rightful owner or the person in charge of a computer, computer system or computer network.

Every act committed towards breaking into a computer and/or network is hacking. Hackers write or use ready-made computer programs to attack the target computer. They possess the desire to destruct and they get the kick out of such destruction. Some hackers hack for personal monetary gains, such as to stealing the credit card information, transferring money from various bank accounts to their own account followed by withdrawal of money.

By hacking web server taking control on another persons website called as web hijacking

b. Trojan Attack:-

The program that act like something useful but do the things that are quiet damping. The programs of this kind are called as Trojans.

The name Trojan Horse is popular.

Trojans come in two parts, a Client part and a Server part. When the victim (unknowingly) runs the server on its machine, the attacker will then use the Client to connect to the Server and start using the Trojan.

TCP/IP protocol is the usual protocol type used for communications, but some functions of the Trojans use the UDP protocol as well.

c. Virus and Worm attack:-

A program that has capability to infect other programs and make copies of itself and spread into other programs is called virus.

Programs that multiply like viruses but spread from computer to computer are called as worms.

d. E-mail & IRC related crimes:-

1. Email spoofing

Email spoofing refers to email that appears to have been originated from one source when it was actually sent from another source. Please Read

2. Email Spamming

Email "spamming" refers to sending email to thousands and thousands of users - similar to a chain letter.

3 Sending malicious codes through email

E-mails are used to send viruses, Trojans etc through emails as an attachment or by sending a link of website which on visiting downloads malicious code.

4. Email bombing

E-mail "bombing" is characterized by abusers repeatedly sending an identical email message to a particular address.

5. Sending threatening emails

6. Defamatory emails

7. Email frauds

8. IRC related

Three main ways to attack IRC are: "verbalâ⦣8218;?Ŧ#8220; attacks, clone attacks, and flood attacks.

e. Denial of Service attacks:-

Flooding a computer resource with more requests than it can handle. This causes the resource to crash thereby denying access of service to authorized users.

Examples include

attempts to "flood" a network, thereby preventing legitimate network traffic

attempts to disrupt connections between two machines, thereby preventing access to a service

attempts to prevent a particular individual from accessing a service

attempts to disrupt service to a specific system or person

Cyber Law Introduction
Distributed DOS

A distributed denial of service (DoS) attack is accomplished by using the Internet to break into computers and using them to attack a network.

Hundreds or thousands of computer systems across the Internet can be turned into “zombies” and used to attack another system or website.

Types of DOS

There are three basic types of attack:

a. Consumption of scarce, limited, or non-renewable resources like NW bandwith, RAM, CPU time. Even power, cool air, or water can affect.

b. Destruction or Alteration of Configuration Information

c. Physical Destruction or Alteration of Network Components

e. Pornography:-
The literal mining of the term 'Pornography' is “describing or showing sexual acts in order to cause sexual excitement through books, films, etc.”

This would include pornographic websites; pornographic material produced using computers and use of internet to download and transmit pornographic videos, pictures, photos, writings etc.

Adult entertainment is largest industry on internet.There are more than 420 million individual pornographic webpages today.

Research shows that 50% of the web-sites containing potentially illegal contents relating to child abuse were ‘Pay-Per-View’. This indicates that abusive images of children over Internet have been highly commercialized.

Pornography delivered over mobile phones is now a burgeoning business, “driven by the increase in sophisticated services that deliver video clips and streaming video, in addition to text and images.”

Effects of Pornography

Research has shown that pornography and its messages are involved in shaping attitudes and encouraging behavior that can harm individual users and their families.

Pornography is often viewed in secret, which creates deception within marriages that can lead to divorce in some cases.

In addition, pornography promotes the allure of adultery, prostitution and unreal expectations that can result in dangerous promiscuous behavior.

Some of the common, but false messages sent by sexualized culture.

Sex with anyone, under any circumstances, any way it is desired, is beneficial and does not have negative consequences.

Women have one value - to meet the sexual demands of men.

Marriage and children are obstacles to sexual fulfillment.

Everyone is involved in promiscuous sexual activity, infidelity and premarital sex.

Pornography Addiction

Dr. Victor Cline, an expert on Sexual Addiction, found that there is a four-step progression among many who consume pornography.

1.Addiction: Pornography provides a powerful sexual stimulant or aphrodisiac effect, followed by sexual release, most often through masturbation.

2.Escalation: Over time addicts require more explicit and deviant material to meet their sexual "needs."

3.Desensitization: What was first perceived as gross, shocking and disturbing, in time becomes common and acceptable.

4.Acting out sexually: There is an increasing tendency to act out behaviors viewed in pornography.

g. Forgery:-

Counterfeit currency notes, postage and revenue stamps, mark sheets etc can be forged using sophisticated computers, printers and scanners.

Also impersonate another person is considered forgery.

h. IPR Violations:-

These include software piracy, copyright infringement, trademarks violations, theft of computer source code, patent violations. etc.

Cyber Squatting- Domain names are also trademarks and protected by ICANN’s domain dispute resolution policy and also under trademark laws.

Cyber Squatters registers domain name identical to popular service provider’s domain so as to attract their users and get benefit from it.

i. Cyber Terrorism:-

Targeted attacks on military installations, power plants, air traffic control, banks, trail traffic control, telecommunication networks are the most likely targets. Others like police, medical, fire and rescue systems etc.

Cyberterrorism is an attractive option for modern terrorists for several reasons.

1.It is cheaper than traditional terrorist methods.

2.Cyberterrorism is more anonymous than traditional terrorist methods.

3.The variety and number of targets are enormous.

4.Cyberterrorism can be conducted remotely, a feature that isespecially appealing to terrorists.

5.Cyberterrorism has the potential to affect directly a larger number of people.

j. Banking/Credit card Related crimes:-

In the corporate world, Internet hackers are continually looking for opportunities to compromise a company’s security in order to gain access to confidential banking and financial information.

Use of stolen card information or fake credit/debit cards are common.

Bank employee can grab money using programs to deduce small amount of money from all customer accounts and adding it to own account also called as salami.

k. E-commerce/ Investment Frauds:-

Sales and Investment frauds. An offering that uses false or fraudulent claims to solicit investments or loans, or that provides for the purchase, use, or trade of forged or counterfeit securities.

Merchandise or services that were purchased or contracted by individuals online are never delivered.

The fraud attributable to the misrepresentation of a product advertised for sale through an Internet auction site or the non-delivery of products purchased through an Internet auction site.

Investors are enticed to invest in this fraudulent scheme by the promises of abnormally high profits.

l. Sale of illegal articles:-

This would include trade of narcotics, weapons and wildlife etc., by posting information on websites, auction websites, and bulletin boards or simply by using email communication.

Research shows that number of people employed in this criminal area. Daily peoples receiving so many emails with offer of banned or illegal products for sale.

m. Online gambling:-

There are millions of websites hosted on servers abroad, that offer online gambling. In fact, it is believed that many of these websites are actually fronts for money laundering.

n. Defamation: -

Defamation can be understood as the intentional infringement of another person's right to his good name.

Cyber Defamation occurs when defamation takes place with the help of computers and / or the Internet. E.g. someone publishes defamatory matter about someone on a website or sends e-mails containing defamatory information to all of that person's friends. Information posted to a bulletin board can be accessed by anyone. This means that anyone can place

Cyber defamation is also called as Cyber smearing.

Cyber Stacking:-

Cyber stalking involves following a persons movements across the Internet by posting messages (sometimes threatening) on the bulletin boards frequented by the victim, entering the chat-rooms frequented by the victim, constantly bombarding the victim with emails etc.

In general, the harasser intends to cause emotional distress and has no legitimate purpose to his communications.

p. Pedophiles:-

Also there are persons who intentionally prey upon children. Specially with a teen they will let the teen know that fully understand the feelings towards adult and in particular teen parents.

They earns teens trust and gradually seduce them into sexual or indecent acts.

Pedophiles lure the children by distributing pornographic material, then they try to meet them for sex or to take their nude photographs including their engagement in sexual positions.

q. Identity Theft :-

Identity theft is the fastest growing crime in countries like America.

Identity theft occurs when someone appropriates another's personal information without their knowledge to commit theft or fraud.

Identity theft is a vehicle for perpetrating other types of fraud schemes.

r. Data diddling:-

Data diddling involves changing data prior or during input into a computer.

In other words, information is changed from the way it should be entered by a person typing in the data, a virus that changes data, the programmer of the database or application, or anyone else involved in the process of having information stored in a computer file.

It also include automatic changing the financial information for some time before processing and then restoring original information.

s. Theft of Internet Hours:-

Unauthorized use of Internet hours paid for by another person.

By gaining access to an organization’s telephone switchboard (PBX) individuals or criminal organizations can obtain access to dial-in/dial-out circuits and then make their own calls or sell call time to third parties.

Additional forms of service theft include capturing 'calling card' details and on-selling calls charged to the calling card account, and counterfeiting or illicit reprogramming of stored value telephone cards.

t. Theft of computer system (Hardware):-

This type of offence involves the theft of a computer, some part(s) of a computer or a peripheral attached to the computer.

u. Physically damaging a computer system:-

Physically damaging a computer or its peripherals either by shock, fire or excess electric supply etc.

v. Breach of Privacy and Confidentiality

Privacy

Privacy refers to the right of an individual/s to determine when, how and to what extent his or her personal data will be shared with others.

Breach of privacy means unauthorized use or distribution or disclosure of personal information like medical records, sexual preferences, financial status etc.

Confidentiality

It means non disclosure of information to unauthorized or unwanted persons.

In addition to Personal information some other type of information which useful for business and leakage of such information to other persons may cause damage to business or person, such information should be protected.

Generally for protecting secrecy of such information, parties while sharing information forms an agreement about he procedure of handling of information and to not to disclose such information to third parties or use it in such a way that it will be disclosed to third parties.

Many times party or their employees leak such valuable information for monitory gains and causes breach of contract of confidentiality.


Special techniques such as Social Engineering are commonly used to obtain confidential information.

Monday, 29 July 2013

THE PROS AND CONS OF ONLINE DISPUTE RESOLUTION

THE PROS AND CONS OF ONLINE DISPUTE RESOLUTION: AN ASSESSMENT OF CYBER-MEDIATION WEBSITES



Due to increasing use of the Internet worldwide, the number of disputes arising from Internet commerce is on the rise.  Numerous websites have been  established to help resolve these Internet disputes, as well as to facilitate  the  resolution  of  disputes  that  occur  offline.                                                                                This  iBrief examines and evaluates these websites.  It argues that cyber-mediation is in  its  early stages of development and that it  will  likely  become an increasingly  effective mechanism for resolving disputes as technology advances.


Introduction

Online dispute resolution (“ODR”) can take place either entirely or partly online and concerns two types of disputes: those that arise in cyberspace and those that arise offline.1      As Internet usage  continues to expand, it has become increasingly necessary to design efficient mechanisms for  resolving Internet disputes because traditional mechanisms, such as litigation, can be time-consuming,  expensive and raise jurisdictional problems.3      Offline disputes, on the
other hand, can be addressed with traditional dispute resolution mechanisms supplemented with




1  For a general discussion of the types of disputes that ODR encompasses, see Richard Birke, Louise Ellen Teitz, American Law in a Time of Global Interdependence: National Reports to the XVITH International Congress of Comparative Law: Section II U.S. Mediation in 2001: The Path that Brought America to Uniform Laws and Mediation in Cyberspace, 50 AM. J. COMP. L. 181,
at 206-07 (2002); Louse Ellen Teitz Providing Legal Services for the Middle Class in
Cyberspace: The Promise and Challenge of On-line Dispute Resolution, 70 FORDHAM L. REV.
985, 990-95 (2001).
2  According to estimates for the month of September 2002, there is a global active Internet universe of 220,444,008 individuals based on home Internet access compared with 218,038,452 for August 2002. See Nielsen Net Ratings at http://www.Nielsen-
netratings.com/hot_off_the_net.jsp (last visited November 24, 2002). This means an estimated
increase in global Internet usage of 1.1% from September to August 2002. Id.
3  See Lucille M. Ponte, Boosting Consumer Confidence in E-business: Recommendations for
Establishing Fair and Effective Dispute Resolution Programs for B2C Online Transactions, 12
ALB. L.J. SCI. & TECH. 441, 442-44 (2002) (“In cyberspace, e-consumers with purchasing problems have no clear means of redress for their concerns because cyberspace has no uniform laws and no unified court system.  The global nature of the Web challenges national sovereignty and traditional court authority and amplifies concerns about choice of law and the enforceability of court judgments. The lack of well-established and credible online conflict resolution mechanisms dampens consumer confidence in the online marketplace and hurts e-tailers involved in cross-border transactions.”) Id. (citations omitted); Teitz, Providing Legal Services, supra note
1, at 990-95; and Robert C. Bordone, Electronic Online Dispute Resolution: A Systems Approach
Potential Problems and a Proposal, 3 HARV. NEGOTIATION L. REV. 175, 176 (1998).


online technologies.4    Although the methods of  ODR available  range from negotiation and mediation to modified arbitration to modified jury proceedings, the focus of this iBrief is on negotiation and mediation in the online environment.6      In particular, it examines and evaluates websites that use mediation techniques to help resolve disputes.
This first part of this iBrief discusses various websites that provide mediation services.7

The most salient difference between these websites is in their level of automation.8    As the discussion  below  indicates,  some  websites  are  fully  automated  and  require  little  human intervention, while others involve a neutral third party as a facilitator.  The second section argues that  undertaking mediation over the Internet (“cyber-negotiation” and “cyber-mediation”) has advantages  and  disadvantages when compared with traditional, face-to-face mediation.                                                                                                             The advantages include cost savings and convenience, while the disadvantages include that it is impersonal  and potentially inaccessible to some individuals.   The final section concludes that some of  the disadvantages of cyber-mediation may be overcome as technology advances and high-speed Internet connections allow for video-conferencing.

Cyber-Mediation Websites


Fully Automated Cyber-Negotiation
Websites such as Cybersettle, SettlementOnline10  and clickNsettle11  offer services that are  entirely online and focus primarily on negotiating monetary settlements.   These websites serve as a neutral arena to exchange settlement offers.  Offers of what?  Typically, an aggrieved individual (or, in most cases, his or her insurer), initiates a claim by logging onto the services secure website and setting a deadline for resolution, which is typically 30 to 60 days.  The service then emails the other party to let him or her know that a settlement offer has been proposed and
also gives them access to the website.  The party can either accept or decline to participate.  If


4  See Birke et al., supra note 1, at 206-07.
5  See Lucille M. Ponte, Throwing Bad Money After Bad: Can Online Dispute Resolution (ODR) Really Deliver the Goods for the Unhappy Internet Shopper? 3 TUL. J. TECH. & INTELL. PROP.
55, 66-87 (2001) for a discussion of the various forms of mediation services, arbitration services and jury proceedings that are available online.
6  Although online adjudicatory mechanisms (such as arbitration and jury proceedings) also merit attention, they pose a unique set of issues (e.g. reaching and enforcing decisions and verdicts) that
are beyond the scope of this iBrief.
7  See Ponte, supra note 3, at 66-79 for a discussion of the various forms of mediation services, arbitration services and jury proceedings that are available online.
8  See Teitz, Providing Legal Services, supra note 1, at 999.
9  See Cybersettle, at http://www.cybersettle.com (last visited Feb. 11, 2003).
10 See SettlementOnline, at  http://www.settlementonline.com (last visited Feb. 11, 2003).


they decide to participate, he or she logs onto the website and submits a demand.   Computer software automatically compares the demand with the settlement offer and emails both parties to let them know whether they are within the “range” of settlement or whether there has been any movement towards settlement.
Cybersettle and SettlementOnline both allow three rounds of bidding.1The cyber-

negotiation starts off with the initiating party entering settlement offers ranked for the first, second, and third rounds and expiration dates for those rounds.1 Computer software then emails the other party explaining that a settlement offer has been made and requests the other party to put  forth  counteroffers  for  the  first,  second,  and  third  rounds. 14                                                                                                                                                                   Computer  software  then compares  the offers and counteroffers for each round to ascertain whether the parties have reached a settlement.15    If the software determines that a settlement has not been reached, then their offers remain confidential and future bargaining positions are unaffected.16
ClickNsettle, on the other hand, allows many rounds of offers and counteroffers within a specified period of time.17    To ensure that the negotiations take place in good faith, partiers are required to increase (or decrease) their offer (or counteroffer) by a specified percentage over their previous offer (or counteroffer). 1 If a settlement is not reached within the specified time period, then  the offers expire  and  the cyber-negotiation fails.19   The parties are, of course, free to resubmit  their  claim  or  move  forward  with  another  dispute  resolution mechanism,  such  as
arbitration or litigation.





11 See clickNsettle, at  http://www.clicknsettle.com (last visited Feb. 11, 2003).
12 See Cybersettle, Cybersettle Demonstration, at  http://www.cybersettle.com/demo/demo_pf.asp
(last visited Nov. 27, 2002); and Settlement Online, Settlement Online Pilot Program Proposal,
13 Id.
14 Id.
15 On Cybersettle, a settlement is reached if there is less than 20% between the offers in any of the rounds, and then the claim will settle for the average of the two amounts.  See Cybersettle, Cybersettle Demonstration, at  http://www.cybersettle.com/demo/demo_pf.asp  (last visited Nov.
27, 2002). SettlementOnline, on the other hand, allows the parties to set their own settlement range for each individual case. See SettlementOnline, Product Analysis, at
16 See Cybersettle, Claim Resolution Services, at http://www.cybersettle.com/products/claimresolution.asp  (last visited Nov. 27, 2002); and SettlementOnline, Illustrating the Automated Negotiation, at http://settlementonline.com/Proposal3.html (last visited Nov. 27, 2002).
17 See Ponte, supra note 3, at 67.
18 See id. at 67, n. 56.
19 See id.


Cyber-Mediation Using Sophisticated Software and a Neutral Third Party Facilitator
OneAccord20  uses an innovative negotiation process and a powerful computer software program that enables multiple parties to participate in interest-based negotiation.21    The process has  several phases and “uses optimization . . . to transform conflicting objectives into fair and efficient solutions.2 Initially, a third party facilitator works with the parties either in person or over the Internet to help them express their interests and identify issues.23    The facilitator is an attorney who has  completed a special 30-hour online training course.24     He or she helps the parties model a negotiation problem and complete a "Single Negotiation Form," which outlines the underlying agreement and leaves blanks for unresolved issues.25    The facilitator then works with each party individually to elicit their own initial confidential preferences among each of the issues and possible outcomes.26
Once the parties’ data is entered into the website, the OneAccord software uses it to develop settlement packages for the parties to consider.2 The facilitator continues to work with the parties to evaluate settlement packages and to refine preferences.2 If the parties choose the same settlement package or “solution,” the software attempts to generate improvements in order to maximize the benefits to both parties.29    Once a party wishes to terminate the negotiation, a final written agreement is drafted with the current solution and signed by all of the parties.30

Traditional Mediation Using Online Technologies
Mediation firms have established websites such as Internet Neutral,31 SquareTrade32 and

WebMediate33 to facilitate the resolution of disputes.  Although these websites rely primarily on


20 See OneAccord, at http://www.oneaccordinc.com (last visited Feb. 11, 2003).
21 See Ernest M. Thiessen & Joseph McMahon, Jr., Beyond Win-Win in Cyberspace, 15 OHIO ST. J. ON DISP. RESOL. 643 (2000) (describing OneAccord negotiation process and then applying it to a hypothetical negotiation problem); and http://www.oneaccordinc.com/html/process.html (last visited Nov. 27, 2002) (outlining the six phases of the OneAccord negotiation process).
22 Thiessen & McMahon, Jr., supra note 17, at 647.
23 See SmartSettle, SmartSettle Process, at http://www.oneaccordinc.com/html/process.html (last visited Nov. 27, 2002).
24 See SmartSettle, Professional Development and Training, at
25 See Thiessen & McMahon, Jr., supra note 17, at 647.
26 See id. at 647-48.
27 See SmartSettle, SmartSettle Process, at http://www.oneaccordinc.com/html/process.html (last visited Nov. 27, 2002).
28 See id.
29 See SmartSettle, SmartSettle Process, at http://www.oneaccordinc.com/html/process.html (last visited Nov. 27, 2002).; See also Thiessen & McMahon, Jr., supra note 17, at 648.
30 See id.
31 See Internet Neutral, at http://www.internetneutral.com (last visited Feb. 11, 2003).


online technologies such  as  e-mail,  listservs,  chat  rooms,  and  instant  messaging,  they  also incorporate more traditional communication methods into the negotiation process.  Typically, a party  contacts the service and fills out an online form that identifies the problem and possible resolutions.   A  mediator then reviews the form and contacts the other party to see if they will participate in the mediation.  If the other party agrees to participate, they can fill out their own form or respond to the initial from through e-mail.  This initial exchange of views may help the parties to understand the dispute better and possibly to reach an agreement. If the dispute remains unresolved, the mediator will work with the parties to help determine issues, articulate interests, and evaluate potential solutions.
Internet Neutral allows the parties to choose from several online mediation alternatives, including e-mail, instant messaging, chat conference rooms, and/or video conferencing.34    The costs, however, vary depending on the online technology used and the length of the mediation sessions.35    For mediations relying on technologies other than e-mail (e.g. chat conference rooms or  videoconferencing), the parties are charged a half-day fee of $250 (and then $125 per hour after the half-day), which is split equally between the parties.36  Disputes with simple facts that rely entirely on e-mail are charged for the time that the mediator spends preparing, sending and reviewing  emails.37                                                                  The  fee  varies  from  $1  to  $6  per  minute,  depending on  the  disputed amount.3 Internet Neutral uses conferencing software that enables the mediator to communicate with  the  parties  in  designated  channels  or  “rooms”  accessed  by  passwords.39                                                                                                 During the mediation, the software enables the parties to communicate through two channels: one channel is for a  private dialogue between one party and the mediator, while the other channel is an open dialogue with all participants, including the mediator.40
SquareTrade does not charge fees to the parties in the initial stage of its dispute resolution

process.41     During this initial stage, the parties try to reach an agreement by communicating


32 See SquareTrade, at  http://www.squaretrade.com (last visited Feb. 11, 2003).
33 See WebMediate, at http://www.webmediate.com (last visited Feb. 11, 2003).
34 See Internet Neutral, Internet Neutral Online Mediation Specialists, at
35 See Internet Neutral, How Much will this Cost? at http://www.internetneutral.com/fees.htm
(last visited Nov. 27, 2002).
36 See id.
37 See id.
38 See id.
39 See Internet Neutral, The Forum for Online Mediation, at
40 See id.
41 See SquareTrade, A Simple, 4 Step Process to Resolve Disputes, at


directly with each other through SquareTrades Direct Negotiation tool, which is a completely automated web-based communications tool.42    If the parties are unable resolve the case through direct  negotiation,  then  they  have  the  option  of  requesting  assistance  from  a  mediator.43
SquareTrade is careful to explain that the mediator is not a judge or arbitrator, but merely seeks “to facilitate positive solution-oriented discussion between the parties… The mediator will only recommend a resolution if the parties request it.4 Even then, the mediators recommendation is not binding on the parties.
WebMediate provides a  range of  cyber-mediation  services along with  other dispute resolution systems, including arbitration.4 It claims to be the “only company to provide a fully- integrated range of ADR processes online alternatively, simultaneously, or sequentially.46
WebMediate  offers  parties  an  opportunity  to  begin  with  less  powerful  dispute  resolution mechanisms  and,  if  those  fail  to  reach  a  settlement,  to  move  onto  more  powerful  dispute resolution  mechanisms.47    Almost all of WebMediates cases enter into their system through a fully automated cyber-mediation process, WebSettlement, which is similar to the fully automated processes discussed above.4 If the dispute is not resolved through WebSettlement, then “parties may choose to involve an experienced online WebMediator, to facilitate the discussion of their dispute and assist in identifying and  assessing options for resolution.49    After exhausting the WebSettlement  and WebMediator options,  the parties may then choose WebArbitration and
“submit their dispute for resolution by a third-party sitting in the role of a private judge.50



42 See id.
43 See id.
44 see id.
45 See WebMediate, Welcome to the Dispute Resolution Revolution, at http://www.webmediate.com/intro.html (last visited Nov. 27, 2002); see also Ryan Baker, WebMediate, Inc. submission to the Department of Commerce and Federal Trade Commission Joint Workshop on Alternative Dispute Resolution for Online Consumer Transactions, available at http://www.ftc.gov/bcp/altdisresolution/comments/ (last visited Nov. 27, 2002).
46 See David Baron, WebMediate, Inc., presentation to the American Bar Association Task Force
on E-commerce and Alternative Dispute Resolution in San Diego, CA on Feb. 17, 2001, available at http://www.law.washington.edu/ABA-eADR/documentation/2001.02.17doc.html (last visited Nov. 27, 2002).
47 See Baron, supra note 42; see also Baker submission to the Department of Commerce, supra
note 36; see also WebMediate, Welcome to the Dispute Resolution Revolution, at
48 See WebMediate, Welcome to the Dispute Resolution Revolution, at
49 Id.  The parties may, of course, skip WebSettlement and begin with or rely solely on
WebMediator or WebArbitration. See id.
50 See id. The cyber-arbitration process ends with an arbitrator rendering a binding decision. “In a somewhat more formal process than WebMediation, parties are encouraged to make their ‘case’


Advantages of Cyber-Mediation

As with traditional mediation, online mediation allows the mediator to adapt the process to address the particular needs of the disputants.5 In addition to enhancing some of the benefits of traditional mediation, there are also advantages to resolving disputes over the Internet: “The process will  allow for greater flexibility, more creative solutions and quicker decisions.52    In particular, the benefits of cyber-mediation discussed below include cost savings, convenience and the avoidance of complicated jurisdictional issues.

Cost Savings and Convenience

As with traditional mediation, a benefit of mediation over the Internet is that it can provide  substantial savings when compared with traditional litigation, which can be extremely costly.5 In fact, cyber-mediation may be the only feasible option for individuals who are unable to afford traveling long distances, or for those involved in e-commerce disputes for low dollar amounts.54
With attorneys fees being perhaps the greatest expense in traditional litigation, or even sometimes traditional mediation, parties may be able to save a lot of money in cyber-mediation, where  hiring an attorney is often unnecessary.55    For example, if the parties have determined liability and  their dispute is solely over the amount of a monetary settlement, then the fully automated cyber-mediation websites discussed above may be sufficient to resolve their dispute.56
In addition, substantial cost savings may also result because online mediation does not require

parties to pay for long-distance phone calls or teleconferencing.57




in a secure resolution forum to a WebArbitrator selected from WebMediates network of experienced online arbitrators. Each party is given ample opportunity to present arguments and to rebut positions taken by the other side. At the conclusion of these presentations, the WebArbitrator issues a decision to the parties in written form.” Id.
51 See E. Casey Lide, ADR and Cyberspace: The Role of Alternative Dispute Resolution in Online Commerce, Intellectual Property and Defamation, 12 OHIO ST. J. ON DISP. RESOL. 193, at 208 (1996).
52 Id. at 219.
53 See George H. Friedman, Alternative Dispute Resolution and Emerging Online Technologies: Challenges and Opportunities, 19 HASTINGS COMM. & ENT. L.J. 695, 712 (1997).
54 See Llewellyn Joseph Gibbons, Robin M. Kennedy, and Jon Michael Gibbs, Frontiers of Law:
The Internet and Cyberspace: Cyber-mediation communications Medium Massaging the
Message, 32 N.M.L. REV. 27, 42 (2002)
55 See Lan Q. Hang, Online Dispute Resolution Systems: The Future of Cyberspace Law, 41
SANTA CLARA L. REV. 837, 855 (2001).
56 See id.
57 Friedman, supra note 44, at 712.


Perhaps the most recognized benefit of online mediation is that the disputants do not have to travel  lengthy distances to negotiate.58    Since online disputes can arise between individuals from great distances, and even different countries, at least one of the parties will be required to travel far if they decide to rely on a traditional dispute resolution procedure.59     Since parties can participate in  cyber-mediation from their respective business locations or residences, this may lead to reduced costs and the expenditure of less time.6 There is no need to rent a neutral facility to conduct the mediation and relevant documents and materials are readily available and do not have to be transported great distances.61
There  are  also  several  benefits  that  stem  from  the  asynchronous  nature  of  e-mail communications. Messages are not transmitted live, but can be written and then later sent.62
Since e-mail, listservs, and web postings can be written, posted and responded to at any time, participating  in  cyber-mediation  is  substantially  more  convenient.63                                                  There are  few  of  the scheduling difficulties that can arise in traditional mediation, where it is necessary to arrange times and places for meetings. 64    Parties are able to participate in the negotiation when they are ready and at  convenient times.65     The mediator can caucus with either or both of the parties privately, without affecting the flow of the mediation. 6 The amount of idle time that disputants experience is similarly  reduced because, in contrast to traditional mediation, the mediator can devote time to one party without wasting the time of the other party, who would traditionally sit around waiting for the next mediation stage. 6 As Jim Melamed has explained:
Experienced mediators are well aware of the benefits of asynchrony. This  is  a big part of the reason that many mediators ‘caucus’ (meet separately) with participants.  Mediators want to slow the process down and assist participants to craft more capable contributions.  This concept of slowing the  process down and allowing participants to safely craft their contributions is at the heart of caucusing. Surely, the Internet works capably as an extension of  individual party caucus and is remarkably convenient and affordable.   Internet communications take less time to read and clients do not hear a professional fee meter clicking.  When the


58 See Bordone, supra note 3, at 176.
59 See Hang, supra note 46, at 855.
60 See id.
61 Gibbons et al., supra note 45, at 42.
62 See Jim Melamed, The Internet and Divorce Mediation, available at
http://www.mediate.com/articles/melamed9.cfm (last visited Nov. 25, 2002).
63 See Friedman, supra note 44, at 712.
64 See Gibbons et al., supra note 45, at 42; see also Friedman, supra note 44, at 712.
65 See Jim Melamed & John Helie, The World Wide Web Main Street of the Future is Here Today, available at  http://www.mediate.com/articles/jimmjohn.cfm# (last visited Nov. 26, 2002).
66 See Gibbons et al., supra note 45, at 42.
67 See id.


Internet is utilized for caucus, the ‘non-caucusing participant’ does not need  to  sit in the waiting room or library reading Time magazine or growing resentful at being ignored.68


It may also be argued that more thoughtful, well-crafted contributions result from the ability   of   the  parties  to  edit  messages  prior  to  sending  them:                         “Asynchronous  Internet communications have the advantage of being edited ‘best’ communications in sometimes contrast to ‘first’  (often impulsive) responses that can take place in real time face-to-face mediation discussions.”69         In  addition,  many  of  the  cyber-mediation  mechanisms,  such  as  the  fully automated cyber-mediation websites discussed above, are available all day long, every day of the year.70     Disputants can therefore  proceed to negotiate the settlement of disputes immediately, rather than waiting lengthy periods to go to trial.71

Avoidance of Complex Jurisdiction Issues

A key advantage of resolving disputes through the use of cyber-mediation is that it avoids the issue of whether a particular court has jurisdiction over the dispute.72    Since disputants can bind  themselves  to  resolution  through  an  agreement,  jurisdictional  issues  can  be  avoided altogether. 73

Disadvantages of Cyber-Mediation

“Electronic communication is no substitute for the ability of face-to-face conversations to foster  important process values of mediation.” 74                                                      Notwithstanding the advantages discussed above, cyber-mediation also creates has several disadvantages when compared with traditional mediation.   As Joel Eisen observes, the practice of mediation cannot easily be reproduced in the
online environment because “cyberspace is not a ‘mirror image’ of the physical world.” 75








68 Jim Melamed, The Internet and Divorce Mediation, available at
http://www.mediate.com/articles/melamed9.cfm (last visited Nov. 25, 2002).
69 Id.
70 See Gibbons et al., supra note 45, at 42; see also Friedman, supra note 44, at 711.
71 See Hang, supra note 46, at 856.
72 See id.
73 Lide, supra note 42, at 200.
74 Joel B. Eisen, Are We Ready for Mediation in Cyberspace? 1998 BYU L. Rev. 1305, 1308 (1998).
75 Eisen, supra note 65, at 1310.


Limited Range of Disputes

Some disadvantages are specific to the method of cyber-mediation chosen.  For example, fully automated cyber-mediation can only be used to resolve specific types of disputes and, even then, can only handle disputes where the amount of the settlement is the only unresolved issue. In fact, for fully  automated cyber-mediation to work properly, it would seem that the parties would need to have  undertaken initial discussions, agreed to the basic facts surrounding the dispute and have determined that one of the parties is responsible for damages. The parties would then  seemingly  have  to  have  agreed  to  limit  further  discussions to  the  single  issue  of  an appropriate  amount  of  monetary  compensation.                  Limiting  the  final  stage of  negotiations to determining a dollar figure for compensation seemingly leaves out the possibility for innovative, interest-oriented, out-of-the-box negotiating that is the hallmark of many successful negotiations.

Impersonal

“There is almost universal agreement that mediation is most effective if the parties to the dispute are physically present before the mediator.7 As Joel Eisen argues, “the great paradox of online  mediation  is that it imposes an electronic distance on the parties, while mediation is usually an oral form of dispute resolution designed to involve participants in direct interpersonal contact.”77     Mediation  is normally based on an informal, face-to-face discussion of the issues between participants.78    “Creating an atmosphere in which the parties trust the mediator to help them  reach  a  resolution  of  their  dispute  is  considered  vital,  if  not  indispensable, by  most mediators.”7 Negotiations are certainly more effective when the parties are able to communicate with  one  another  freely.                                   For  example,  helping  parties  to  listen  and  understand  concerns, empathize with each other, vent feelings and confront emotions is considered to be an important part of mediation.80     “For many participants,  mediation is about the ‘venting’ of feelings and emotions that they would be unable to express in a more formal setting such as a courtroom.  The opportunity  to  tell  ones version of  the case directly to  the  opposing party and to  express accompanying emotions can be cathartic for mediation participants.” 81
Cyber-mediation, on the other hand, loses the dynamics of traditional mediation because

it takes place at  a  distance and in  front of computer  screens, rather than with face-to-face



76 William T. D’Zurilla, Alternative Dispute Resolution, 45 LA. B.J. 352 (1997).
77 Eisen, supra note 65, at 1310.
78 See id. at 1312-13.
79 See id. at 1325.
80 See id. at 1323, 1325.
81 See id. at 1323.


communication.8 “The substitution of e-mail for dialogue, for example, makes it difficult to give any weight to emotion in mediation.” 8 In Internet disputes, there are great distances between the parties psychologically and large barriers to creating an open dialogue: there is typically no prior connection or any personal contact between the parties, they generally do not have an ongoing relationship (in fact, they often know little about one another), nor is there any hope of a future
relationship  (most   often,   cyber-disputes   involve    “one-shot   transaction.”)            Thus,   the effectiveness of cyber-mediation is challenged directly by the lack of an established relationship or personal connection.  Additionally, communications online do not express the variable tone, pitch and  volume of the participants and cannot transmit personalities or physical cues.  “Oral expressions of feelings in a face-to-face setting have a richer and more meaningful context than written expressions of  feelings in an e-mail exchange.” 84     In this way, it is more difficult to evaluate the flexibility of a particular party, or the strength of a partys feelings or confidence on particular issues.85
Some authors have argued that the lack of personal presence in cyber-mediation can

make it more difficult for the mediator to maintain effective control over the negotiating parties.



The online medium, at least the e-mail environment, makes it difficult for the mediator to manage or temper the tone of the interactions without sounding  controlling and  judgmental.                                                              The  mediator,  at  least  in  the beginning,  is  a  disembodied voice and cannot use her own physical
‘personhood’ to set the parties at ease and create an environment for sustained problem-solving.   Similarly, absent the physical presence of the disputants, the mediator has difficulty using the intuitive cues of body language, facial expression, and verbal tonality that are part of face-to- face mediation processes.86


Beal has  also explained that it  constrains the  mediators ability to  express “serious demeanor,  professional  presentation,  occasional  humor,  and  just  plain  charisma.87                              Eisen
concludes that, “[g]iven the professions current orientation to listening and processing oral





82 See id.
83 See id.
84 See id. at 1311.
85 See id.
86 Ethan Katsh, Janet Rifkin and Alan Gaitenby, E-Commerce, E-Disputes, and E-Dispute
Resolution: In the Shadow of “eBay Law, 15 OHIO ST. J. ON DISP. RESOL. 705, 714 (2000).
87 Bruce Leonard Beal, Online Mediation: Has Its Time Come? 15 OHIO ST. J. ON DISP. RESOL.
735, 737 (2000).


information, mediators would find it largely impossible to translate their skills to the online setting.”88

Potentially Inaccessible

Access to online computers may pose a problem for some individuals, especially those involved in disputes that result from off-line transactions.89    Continuous Internet access for the length of time it takes to resolve a dispute (which may vary from hours, to days, to weeks) may also  pose   problem  for  those  with  limited  access  or  those  who  would  find  doing  so uncomfortable  or  inconvenient.    It  may  also disadvantage those who are less familiar with computers   and   their   use   or   those  who  are   incapable  of   undertaking  detailed  written communications.
In addition, even though cyber-mediation can be one of the least expensive alternatives for resolving disputes, the relatively modest fees that it does require may still be out of reach for many individuals involved in e-commerce disputes. Since online disputes typically concern small sums of money, the cost of cyber-mediation is an important consideration.90    SettlementOnline, for example, requires  payment of $300 for each settlement reached ($150 fee for each claim resolved, with an additional $150 coming out of the settlement amount).9 CyberSettle offer flat fees based that vary based on the amount of the settlement with a payment of $100 being required for any settlement under $5000.9 Fees for CyberSettles services are generally taken out of the settlement  amount,  although  insurance  carriers  are  obligated  to  pay  an  additional  $150  in submission and engagement fees.93  Thus, for disputes of a few hundred dollars, a party may be unwilling to pay one-third of a potential settlement to a service to help settle the dispute.  As a result, the effectiveness of such mechanisms for resolving online disputes has to be questioned, unless there is little, if any, fee.94    With the current fees that these websites are  charging, it is
likely that cyber-negotiation is out of reach for many Internet disputes.






88 Eisen, supra note 65, at 1308.
89 See id. at 1336.
90 See Ponte, supra note 3, at 69.
91 See SettlementOnline, Settlement Online Pilot Program Proposal, at
92 See Cybersettle, Attorney Pricing, at http://www.cybersettle.com/products/atty_pricing.asp
(last visited Nov. 27, 2002).
93 See Cybersettle, Claim Professional Pricing, at
94 See Ponte, supra note 3, at 74.


Confidentiality Concern
Katsch has discussed the concern over the protection of confidential material in ODR.95

Whereas traditional mediation does not create a physical record, online mediation creates an electronic  record. 96                                                                   This could potentially enable a party to print out and distribute e-mail communications easily and without the knowledge of the other party. 97     This may hinder the development of open and honest exchanges in cyber-mediation.98

Conclusion: The Promise of Cyber-Mediation

Based on its commercial success thus far, it would appear that the fully automated cyber- mediation mechanisms are proving to be an advantageous forum for a number of disputants.  In fact,  Cybersettle claims to have handled more than 60,000 transactions since it went online in
1998, facilitating settlements for more than $350 million.9 Cyber-mediation using sophisticated

software and traditional mediation using online technologies, on the other hand, appear to have had  more  limited success thus far.   Ponte, for example, notes that the OneAccord software is relatively new  and that cyber-mediation experts feel that greater experimentation and research needs to take place in order to improve it. 100    The potential of the more traditional negotiation methods supplemented by online technologies appears to remain untapped.  As the founder and owner of Internet Neutral, Bruce Leonard Beal, explains, [a]lthough dozens of ‘cases’ have been submitted to Internet Neutral for possible  resolution, not one case has yet progressed to actual mediation using the online mediation system.”10 Beal lists several reasons that Internet Neutrals online mediation system is not being utilized, including:  1) the lack of consent of at least one party either to mediation or the use of a particular technology (e.g.  e-mail, instant messaging, etc.)102; 2) the amount in dispute is not sufficient to warrant costs of mediation; 3) at least one of the parties misapprehends the nature of mediation and desires arbitration or even  litigation instead.”103            Thus, before making a determination that cyber-mediation is an “effective” or
“ineffective” mechanism for resolving disputes, it is necessary to recognize that it is in its early


95 See M. Ethan Katsch, Dispute Resolution in Cyberspace, 28 CONN. L. REV. 953, 971 (1996).
96 See id.
97 See id. at 971-72.
98 See id. at 971.
99 See Cybersettle, Cybersettle Fact Sheet, at http://www.cybersettle.com/about/factsheet.asp (last visited Nov. 27, 2002)
100 See Ponte, supra note 3, at 69-70.
101 Beal, supra note 78, at 741.
102 Beal explains that, “even where all of the parties consent to online mediation in general, it is rare that they mutually will agree to implement a specific Internet technology, either e-mail, chat room, instant messaging, or videoconferencing. E-mail never has been agreed to.” Id. at 742.


stages of development.  Cyber-mediation services will likely continue to be refined and continue to improve along with developments in technology.
In addition, some of the disadvantages of cyber-mediation discussed above may not have much  merit  when  applied  to  disputes that  arise  online.                              For  example,  in  defending cyber- mediation against attacks that it is “impersonal, Hang argues that “[t]he problem with face-to- face contact is that it does not take into account the fact that anonymity is highly valued over the Internet.  If there must be face-to-face contact for each dispute resolution, [ODR] is more likely to fail because anonymity is part of the Internet culture.  The advantage of [ODR] is that [it] may preserve anonymity and resolve the dispute at the same time.”10 It may also be that there is not a significant problem with a lack of access, particularly those with disputes stemming from Internet activity.  Friedman points out that most people who engage in online activities either own their own computer or have good access to an online computer.10 Hang further points out that “those sophisticated enough to engage in online  commerce are presumably sophisticated enough to communicate effectively online, especially since making an online purchase usually requires an e-mail account and some internet skills.106
Although cyber-mediation has been criticized due to its impersonal nature, it will likely

become  more  like  traditional mediation, increasingly popular and  better suited to  resolving disputes as technology advances.  Beal argues that “online mediation will not manifest fully until videoconferencing  becomes  commonplace  and  the  following  apply:  (1)  video  cameras  and microphones are built into computers; (2) videoconferencing software is bundled with computers; and (3) modems are fast enough (i.e., ‘broadband’ or 412 kilobytes per second and greater) to accommodate   videoconferencing.”107                     Katsh,  Rifkin   and   Gaitenby   similarly   argue   that videoconferencing  is an “obvious solution to  the  lack of face-to-face encounters” in cyber- mediation.108
In conclusion,  cyber-mediation  is  a  recent  phenomenon  and  will  likely  become  an
increasingly effective mechanism for resolving disputes as technology advances.  In the future, as online video conferencing becomes increasingly available, it will become easier for disputants to undertake face-to-face negotiations.  This will address the major claimed disadvantage of cyber- mediation: that it is  impersonal.                                                     Nevertheless, until video-conferencing technology becomes


103 Id. at 741.
104 See Hang, supra note 46, at 858.
105 See Friedman, supra note 44, at 708.
106 See Hang, supra note 46, at 859.
107 Beal, supra note 78, at 736.
108 Katsh, et al., supra note 77, at 718.


commonplace, it may be a good idea for parties that intend to participate in cyber-mediation to develop  some rapport by having a  face-to-face meeting, if feasible, or at  least  a  telephone conference call.





By: Joseph W. Goodman