ADR Roundtable 2 - Dispute Resolution Journal - Vol. 56, No. 3
Originally from Dispute Resolution Journal
Mr. Jeydel: I can draft the resolution clause but that gets up to the CIETAC award. What I can’t do is affect the legislation that’s going to deal with enforcement.
And I must say that most people look at the United States enforcement regime as being a great model. When you have an award, you go and settle in court in this country; you get action pretty quickly.
Mr. McGovern: In fact, it may be too much enforcement.
Ms. Peterson: Too much too soon? Well as we’re speaking about the international area, a related topic on which I would like to have the panel’s thoughts is online dispute resolution. How much B-to-B business is there going to be and how many disputes will there be? And then, of course, there’s B-to-C, and what means are going to be used to effect this, and talk about training.
There are all kinds of people who will be using dispute resolution or dispute management who never even got near an arbitration center or mediation center. Do you want to address that, Francis?
Mr. McGovern: Well, the WIPO experience over the domain names thus far has been quite positive. You’ve got folks all over the world who are competing over the domain name and so you have a dispute that’s resolved with, in effect, E-mail.
Let me make one other point that I think is important in this context to focus on. I’ll use the Microsoft case as an example, although this is based solely on media reports and may not be real world.
One of the major factors was the government didn’t trust Microsoft to comply with any type of consent degree because of what was going on before.
So the person appointed to mediate this, at least one aspect of the case, was a circuit court judge who did the bulk of the mediation by E-mail, according to the press reports. If the problem is trust, I’m not certain E-mail is the most effective mechanism for resolving the dispute.
If on the other hand, the problem is something else that can be addressed verbally, using electronic dispute resolution will do just fine. For certain other disputes it will be an unmitigated absolute disaster.
Ms. Peterson: Which disputes do you think would be appropriate?
Mr. McGovern: Any that are factually based, where it’s basically a factual dispute. You don’t have the emotional, you don’t have the behavioral problems, you don’t have a big sunken cost issue usually. It’s sort of like when you deal in arbitration or an appeal to the court, when are you willing to do it on the briefs? You’re willing to do it on the briefs when it’s basically a factual or legal dispute, but when you get the personal kind of aspects to it, I don’t think it’s going to work very well.
Ms. Peterson: The statistics I’ve seen indicate that although I love E-mail, that the communication in E-mail is only 7% of the communication that you get when you’re face to face as we are here, because demeanor and body language and eye contact are so much a part of the communication. You seem to be saying that 7% is enough in certain cases.
Mr. McGovern: Absolutely.
Ms. Peterson: Is it because these disputes are also very narrowly defined? There isn’t much. You either did or you didn’t.
Mr. McGovern: Well, it’s sort of why eBay is enormously successful and some of the other Web sites not quite as successful.
Ms. Peterson: Do you have an answer for that one, too?
Mr. McGovern: I would argue that the question being asked on eBay is very, very simple, whereas the questions being asked on Web Band are much, much more complex.