I. Introduction

With the advent of the Internet, international commerce has greatly evolved over recent years. Nowadays, any company can immediately have a worldwide presence through the Web and conduct transactions online. A new arena of international trade has emerged with new givens.

New communication opportunities have led to a change in the way businesses relate to each other. Inter-firm relations are less and less required to be between company heads. It is now common for members of staff further down in the hierarchy to work directly with their counterparts in another firm elsewhere in the world. Working rhythms, too, have changed as communication becomes instantaneous and the accessibility of information becomes easier.

Such changes have had an impact on relations between businesses and their law firms. A 2004 study of the American Corporate Counsel Association found that 51 per cent of the Fortune 500 companies surveyed have outside law firms with extranets to which corporate counsel have access. 2 These are private spaces in which documents are drafted and information exchanged between an attorney and the client. Such extranets would seem destined to complement those that exist between counsel, neutral and dispute resolution service provider in online dispute resolution (ODR). It appears evident that lawyers in the future will need to be comfortable working in these environments, whether as corporate counsel, outside counsel, or neutrals. The question is how to prepare them for this new future?

In the context of my teaching activity and on the basis of my experience of organizing mock cases and coaching students for competitions and my prior work on the use of information technology in international dispute resolution, 3 I have endeavored to give the lawyers of tomorrow the chance to taste this new phenomenon through international competitions for online dispute resolution (ICODR).

II. The ICODR experience

The aim of ICODR, which I have been involved in organizing since 2001, is to enhance student understanding of online dispute resolution - negotiation, [Page28:] mediation and arbitration. 4 The participants are required to solve hypothetical problems by applying offline dispute resolution methods in an online environment. There is no charge to take part and the entire competition takes place online. Both the students and the evaluators never leave their homes. All participants remain anonymous and those students whom the evaluators judge to be the most effective are awarded medals.

Students compete not only as advocates representing the parties in the competitions but also - in contrast to most other student dispute resolution competitions, offline and online - as neutrals or arbitrators in the mediation and arbitration competitions. The 2004 ICODR (negotiation, mediation and arbitration), running over six months, has had both an open division, allowing any college/university or professional school students to take part in the eNegotiation tournament, and a law student division. The evaluators involved in these competitions came from around the world. Altogether ten technologies have been used and over fifty separate dispute resolution spaces created. 5

The competitions also gave dispute resolution service providers an opportunity to have the students try out the technologies they were developing, as they supplied the platforms on which the competition took place. The first provider to offer a platform for the competition was Online Resolution, whose system was based on eRoom technology. Since then, West WorkSpace/eRoom technology, Squaretrade.com's platform6 and eight other negotiation technologies have been used. 7

West WorkSpace/eRoom technology allowed an arbitration room to be created in which there were several folders. Access to the different folders depended on an entity's role in the arbitration (claimant, respondent or arbitral tribunal). 8 Within this formal structure of folders, participants had great freedom to move around documents and messages organizing the folders as they deemed appropriate.

In contrast, the Squaretrade platform offered a far more structured space. On the one hand, a participant was unable to redesign the space as was possible using West Workspace/eRoom technology. On the other hand, specially designed prompts (list of solution suggestions, a scrolling message space, etc.) for the participants were combined with several explanations and presentations that enhanced the user-friendliness of this platform's negotiation procedure.

As other technologies were introduced, the choices became even more diverse. Particularly interesting are the platforms offering analytical support. They provide means of expressing preferences. For instance, it might be possible to indicate which of four potential liability decisions one prefers and to what extent, or which valuation one prefers in light of a given bargaining range and how important this is compared to other issues. SmartSettle is an example of such a platform. It allows parties to represent unresolved issues in a graphical interface. Parties are invited to specify best and worst outcomes and how important they consider each of the issues. They thereby identify which packages would be most satisfactory to them and can negotiate on that basis either by adopting a traditional approach involving proposals and counter-proposals, or by taking suggestions from SmartSettle. Such systems are designed to help the parties reach an optimal solution, going from 'win-win' to 'beyond win-win'. 9

To summarize, different technologies permit different philosophies for organizing the dispute resolution space. The first of those described above attempts to make the online space an identical experience to the offline space. The second creates a [Page29:] dispute resolution space for a specific dispute resolution procedure (in this case negotiation). The third makes fuller use of a computer's potential by subjecting a problem to analysis and giving visual representations of overall solutions in light of the preferences expressed by the parties. It will thus be up to a party's counsel to determine which approach is best for a given dispute. Much will depend on the level of facilitation sought from the dispute resolution service provider and the technical adaptability of the parties.

III. Student learning

A. The power of the participants

When the technology so permitted, students added laws, documents and evidence, and redesigned their competition spaces with minimal guidance from the organizers. Freed from the constraints of the physical world and attendant costs, such as when assembling actors in an arbitration in the same place at the same time for a hearing, students created arbitration exchanges in asynchronous mode. As they could also switch by a click of the mouse from one folder to another, they could move effortlessly from a negotiation mode, to arbitration, or to mediation. Sometimes different dispute resolution procedures were used simultaneously and in parallel for the same dispute (e.g. negotiation and arbitration or negotiation and mediation). Students could thus be in the presence of the arbitrator in one folder and also simultaneously be negotiating a resolution of the dispute in another room outside of the view of the arbitrator.

As for the manner in which the parties communicated with each other, this can best be described as mind-to-mind. By honing their comments before sending them to the other side, parties were able to create a clearer impression of what was in their minds. Although the lack of face-to-face contact may have been felt as a loss, this was compensated by more time for preparing interventions. Also, the fact that all the parties participated from home meant that they all had the impression of being on their home ground, while at the same time using a dynamic medium that was more like speaking than writing. Their conversations were gathered together in workspaces on the Internet, enabling me and the evaluators to follow from our computers exchanges between students from different parts of the world.

B. Personal experiences

• Jaime L. Beebout, second-year law student at the University of Toledo College of Law:

'I came to the ICODR run under West Workspace as a very inexperienced student mediator, with little practical experience and no Internet experience at all. I had done some mediation work in a summer clinic held by the University of Toledo's Alternative Dispute Resolution Program and I absolutely loved the idea of justice being served outside the courtroom between the parties themselves. I greatly enjoyed the clinic and learned a lot about ground rules, especially how to listen and to formulate agreements that reflect the mutual responsibilities of the parties. Although attracted by the opportunity of [Page30:] international mediation offered by ICODR, I was to say the least slightly sceptical about how an online mediation would work, as I had been trained in face-to-face mediation and the importance of body language as a complementary means of communication.

The first hurdle I had to get over as an effective online mediator was my fear of messing things up in an Internet workspace with which I was unfamiliar. To my surprise, I found it remarkably easy to navigate in the rooms, which closely recalled a face-to-face situation. The navigation tools that included separate rooms for joint discussions, caucuses and sole reflection helped to calm my nerves about starting the competition, and after logging in to check it out only twice, I was ready to go.

The techniques I had used for face-to-face mediations in my law school clinic proved to be very useful for the ICODR mediations online. My ground rules were the same as they would have been in any mediation situation. I started and ended the mediations with the same key idea in my head: to be a neutral third party at all times. The listening skills and other mediation tools learned in the clinic, such as the need to re-state comments by the parties, were the same and just as effective online as they would have been in a face-to-face situation. The one major difference online was that I had a lot more time to think before expressing myself. This also applied to the parties' advocates, so it helped to keep things on an even keel. There was less chance of the emotions that parties naturally experience when they feel wronged taking over. Putting statements and requests in writing acts as a filtering process, which leads to greater clarity and helps the mediation to run more smoothly.

I am extremely pleased with how the online process worked. It is an amazing thought that as students in this competition we were working with competitors from all over the world. The prospect of settling disputes online is hugely important to everyone, especially small businesses that work in the international market. Online mediation means less expense and is an effective way of communicating.'

• John Strickland, second-year law student at the University of Toledo College of Law:

'In the rooms in which I was involved, there was not as much interaction as I had hoped. However, as the proceedings progressed I found I could review the facts presented by both sides and reflect on what was written and spend time pondering the situation and trying to determine a fair solution. My most difficult task was trying not to be 'American' about the whole situation, by which I mean looking at the situation from a narrow perspective and on the basis of an 'American' way of thought. What I had to do was to lift myself above the training I had received and adopt an international perspective.

As law students we rarely see the world outside the faculty or library walls. Participating in ICODR enabled me to see how the law is applied worldwide. Law is part of a worldwide culture; it binds us together as a worldwide civilization. ICODR helped to put that notion in perspective.'

• Fredrik Norburg, evaluator, Swedish attorney-at-law:

'I was impressed by the high standard of the teams involved in the arbitration competition, which gives students a great opportunity to become acquainted with international arbitration. As in real-life international arbitration, [Page31:] counsel and arbitrators represent a mixture of legal backgrounds, and the participants need to adjust to this new and changing context to be successful. It is also a good experience for students to familiarize themselves with using IT. Nowadays IT is frequently and extensively used in international arbitration, e.g. in the preparation of submissions, handling and structuring of documentation, and presentation of evidence at hearings.'

IV. Dematerialization of dispute resolution

The online negotiation, mediation and arbitration competitions organized between students from law schools around the world have led me to reflect on the implications such procedures may have for dispute resolution as a whole and their impact on traditional conceptions and methods of working.

A. Overcoming the presumption of physicality

In our daily lives we are increasingly forced to address ideas that are not provided in a physical document but in a digital interface. Expectations regarding means of communication are changing. No longer do we expect the objects providing ideas to be necessarily tangible, but rather that they constitute a continuum of forms from the tangible, or physical, to the completely evanescent, or virtual. Each of us deals with this development in his or her own way. Some of us replicate physical form by printing out e-mails before reading them. Others review articles online rather than look for them in books in the law library. Whatever the resources available and our predisposition, we each make choices between these forms.

The variety of forms in which ideas are conveyed means that the traditional notions of original and copy have become artificial and problematic constructs. It is often no longer possible or relevant to think in these terms, but more helpful to think in terms of authentication. A virtual equivalent of the 'chain of possession' of evidence is necessary as a means of establishing the authenticity of a document alleged to be authentic. Similarly, it is necessary to provide virtual means of identifying an individual so as to know that an idea actually comes from that person.

As our relationship to material objects changes, it can no longer be assumed that the best evidence for dispute resolution is physical as opposed to intangible. Even if we still think that the best process is where people are physically present in the same room, the objects they consider need not necessarily be brought physically into the room but could be represented through pasteboards or computer-generated displays. Our ability to accept or reject such representations may vary according to their technical sophistication. The part played by such intangible sources of evidence will also depend on whether or not they are accepted by judges and arbitrators when applying the rules that bind them.

This process of defining how much virtuality can actually be acceptable in a process is what I call rebutting the presumption of physicality. It is commonly believed that exhibits and submissions have to be laid before individuals in a physical space for a period of time and that, unless the parties otherwise agree with the consent of the neutral, this is the only way of ensuring a process that will be considered as satisfactory if subsequently attacked by a disgruntled party. The presumption is irrebuttable or rebuttable depending on the type of process (for example, criminal or civil) and the manner (for example, consented to or imposed). [Page32:]

The prospect of increasing dematerialization in dispute resolution processes makes it necessary to reflect on what needs to be physical and what can be virtual. We need to think about when and where the real world is required, possible, or not essential, and to see whether this is dependent on consent or can be imposed. In pursuing our reflection, we should remain attentive to current changes and bear in mind that the extent to which the presumption of physicality is rebuttable will depend on the rights in question, the fluidity of the process and other factors.

Obstacles to rebutting the presumption may come from three sources: technical, legal and psychological. The technical obstacles might be issues such as Internet connection speeds, video quality and compatibility between computer systems and programs (e.g. Microsoft vs Apple). Legal obstacles may be the constitutional or rule-based constructs that cause dematerialization to be a source of concern as opposed to celebration. Psychological obstacles can be the blockages experienced by humans beings during this transitional period as they are confronted with the real and virtual worlds simultaneously. The psychological barriers to the acceptance of dematerialized procedures are likely to diminish with the establishment of forums where disputes are successfully resolved online and the increasing use of clauses providing for online proceedings. Experience has also shown that participants are likely to find comfort in using online technology for the reasons explained below. 10

When using online technology one has the time to carefully prepare one's message. This can lead to an intensely direct form of communication between two minds. In the silence of reading and responding, the neutrality of a letter on the screen takes the focus off the means by which the message is sent and places it more on the content of the message. A carefully drafted document conveys the essence of the other person without the distraction of visual cues that may or may not be relevant to the information conveyed.

A sense of comfort is also afforded by the freedom one feels in being in one's own home while at the same time resolving the dispute with a distant party. This experience provides a curious blend of familiarity and otherness that is missing from a terrestrial struggle where one is either in one's home, at a neutral spot, or on the opponent's territory. Online, one can be at all three places at the same time. This is a significant structural change offered by the Internet.

Freedom also comes from the delocalization of the process. In traditional, in-person dispute resolution situations, it is possible for a person to be prevented from participating in proceedings by not being allowed out of or into a country. This barrier can be sidestepped to some extent by hearing pleadings or evidence no matter where the person delivering the pleadings or the witness giving evidence is located. Some measures have been taken (for example, cyberbailiffs invented by the Inter-Pacific Bar Association) to permit the authentication and verification of the actual presence of the person at the remote site.

B. A new vision of dispute resolution

As I see it, the ultimate consequence of the dematerialization resulting from online dispute resolution processes is a world without barriers or at least in which no barrier is impermeable. I see electronic dispute resolution as an emulation of dispute resolution in the real world. Negotiation, mediation, arbitration and [Page33:] litigation would each be provided for in a virtual space: a 'negotiation room' where negotiation would take place, a 'mediation room' where mediation would take place and so on. A court-ordered arbitration would open a door from the litigation room to the arbitration room, sending parties from one to the other. Rather than talk of walls and doors, it would be more appropriate to talk of adjustable partitions. Having the various rooms alongside each other facilitates the task of all those involved and allows them easily to pass from one means of dispute resolution to another.

Each jurisdiction would thus have its national dispute resolution space with its local specificities and characteristics. Yet just as the separations within this space are not fixed or impermeable, neither are its outer limits. Each national dispute resolution space thus becomes accessible from across the globe and transitions from one national space to another become fluid. Openings can be made so that the national dispute resolution spaces of different nations are able to join together in ways that were heretofore extremely difficult.

As an illustration of this envisioned flexibility, two arbitral tribunals can be sitting in their respective places of arbitration and yet be together in a virtual space if an opening is made between the two procedures. Each arbitral tribunal would thus have full authority to render a decision in its respective local jurisdiction, while at the same time having the opportunity to dialogue with the other tribunal. This would clearly be of great benefit in parallel proceedings, where judges and arbitrators might be able to find their way to using common procedures and choices of law that satisfy due process requirements in their respective jurisdictions.

V. Conclusion

The seamless dispute resolution space described above is a dream for the future. It is a dream which I believe ICODR can help to achieve by offering a low-risk environment in which experimentation can take place. In the meantime, however, electronic technologies can already be said to enhance the very principles that underlie all true dispute resolution - neutrality, fairness and due process. They offer an instantly accessible memory of what has taken place, which acts as an invitation to prudence and, above all, to act in line with the expectations we have of ourselves. It is something of a paradox that one of the most immediate effects of the use of technology in dispute resolution is profoundly human.

1
The author thanks Jaime L. Beebout and John Strickland for their contributions to this article and to the success of ICODR, as well as the many friends and colleagues - too numerous to mention - with whom he exchanged ideas when preparing the article. Special thanks are given to Mirèze Philippe.

2
'In-House Tech Survey Results, Corporate Counsel', 22 April 2004, <http://www.law.com/jsp/article.jsp?id=1082131855835>.

3
This dates back to 1989 when the Chairman of the ICC International Court of Arbitration at the time, Alain Plantey, encouraged me to form a team to work on computerizing case management within the Secretariat of the Court.

4
Although no longer unique, ICODR is the pioneer in organizing online dispute resolution competitions. There have since been other initiatives, such as the international eNegotiation tournament sponsored by ICODR in 2003-2004 and the CyberTribunal II online arbitration competition in French, which in 2004 has involved four schools competiting on one platform. See <http://www.enegotiation.org> and <http://www.cybertribunal.org>. See also, for news and general information, the web site of the Center for Information Technology and Dispute Resolution of the University of Massachusetts, which sponsors ICODR: <http://www.odr.info>.

5
For further information on previous ICODR competitions, see B. Davis, 'ICODR 2003 : Helping Humanity Progress' (2003) 20 J. Int. Arb. 589.

6
Between 1999 and 2002 Squaretrade used online dispute resolution in over 800,000 disputes. See S. Abernathy, 'Building Large-Scale Online Dispute Resolution and Trustmark Systems', Proceedings of the UNECE Forum on ODR 2003, <http://www.odr.info/unece2003/pdf/Abernethy.pdf>.

7
Some of these were simply platforms through which negotiation could take place (e.g. SimpleNS, MeetingOne, WebNS, The Negotiating Room and Negoisst), while others provided analytical support to measure and represent negotiators' preferences too (e.g. Inspire, Family_Winner, and SmartSettle).These technologies are described at greater length at <http://www.enegotiation.org/2004/enstrainingmanual.html>.

8
Thus separate folders for documents and message exchanges for (1) the claimant alone, (2) the claimant and the tribunal arbitral (in case of mediation and arbitration together), (3) the respondent alone, (4) the respondent and the tribunal arbitral, (5) the arbitral tribunal alone, and (6) the parties and the arbitral tribunal together. Outside the context of ICODR, claimant-only and respondent-only sub-rooms may be useful in multiparty situations and where the claimant or the respondent has people in different offices working on the same case.

9
By definition, any agreement is 'win-win'. However, SmartSettle can help parties who have reached a tentative agreement based on their preferences to see whether there are further options available to improve the deal without diminishing their satisfaction - hence the expression 'beyond win-win'.

10
It is also interesting to note that force of circumstance can lead to greater use of electronic documents. In the US Supreme Court, for example, the delays caused by the need to check all physical submissions for anthrax has encouraged the filing of documents in electronic format pending the clearing of the paper originals.