Going Public: Diminishing Privacy in Dispute Resolution in the Internet Age

This paper examines the interplay between the issue of privacy and a new, evolving form of alternative dispute resolution (ADR) made possible by the Internet - online dispute resolution (ODR). The rise of ADR in the recent past was primarily the product of growing dissatisfaction with the inability of the traditional court system to cope with its caseload. The development of ADR has been expedited during the last few years by new technologies. These technologies have produced new disputes and confronted the traditional legal system with greater pressures and new complexities. ODR, which initially was conceived as a way to resolve Internet disputes, has since come to be recognized as a valuable modality for resolution of disputes in the Internet age, whether the disputes arose online or not. This article focuses on one mode of ODR, online mediation, which poses an exceptional challenge in the shift to the online format because of traditional mediation's intimacy and face-to-face interaction. The paper argues that a growing number of disputes will be resolved through private dispute resolution institutions, many of them online, and that this trend will further contribute to the obfuscation of traditional distinctions between private and public. Moreover, we can expect private dispute resolution processes to become more transparent and to allow for public scrutiny, which has been formally reserved for public dispute resolution mechanisms such as the courts, for reasons explored in the paper. But these changes are still unfolding. As attitudes change, online mediation's appeal will increase, but even then it will not displace traditional ADR. Eventually, we can envisage a diverse dispute resolution landscape in which some types of conflicts lend themselves naturally to traditional ADR while others are better suited for the online setting.