October 24, 1997, Geneva, Switzerland
The Growth and Use of Mediation Throughout the World
Mr. Christopher Gibson
Senior Legal Officer, WIPO Arbitration And Mediation Center
I had the pleasure yesterday of presenting to our WIPO Arbitration Council the future plans for implementing an on-line dispute resolution facility for both arbitration and mediation and it was at that time that Dr. Blessing asked me if I could make a few comments here today, and in view of the other panelists I hope to do so with a fair degree of modesty. I thought it would be appropriate to quote from Aldous Huxley, author of Brave New World, and in fact I went on Internet and I did find the quote that I wanted: "the vast majority of human beings dislike and even eventually dread all notions with which they are not familiar, hence it comes about that at first appearance the innovators have generally been persecuted and always derided as fools and madmen." Well I don't know what that says about those of us who are trying to think hard about on-line dispute resolution, but the other text that also comes from Aldous Huxley is "the only completely consistent people are the dead."
Now why would one want to think about on-line dispute resolution mechanisms? I want to give you one other motivating circumstance other than the domain name area which Francis Gurry discussed this morning. I was recently at a conference in Silicon Valley, the purpose of which was to bring together arbitral institutions with members of that group which was labeled the "capital U" Users. This group consisted of general counsel and chief financial officers from companies in Silicon Valley in California, and I thought I would just tell you some facts and figures which they gave that are quite interesting. A theme that came up at that conference was, in fact, "speed." They pointed out that the average product life-cycle for their industry, which is primarily the computer industry, was about two years in 1992, by 1994 it had decreased to between 12 to 18 months, and today it is at 6 to 12 months. So they suggested to those of us who were from arbitration and mediation institutions that what they need are fast mechanisms. They also pointed out that they thought the Internet is going to create a whole new paradigm for doing business and it is in this area that I think we have to listen to these users. The Silicon Valley companies now represent what they pointed out was $1.1 trillion worth of public market value. That is greater than the U.S. automotive industry, which has been the traditional benchmark of the U.S. gross domestic product. They also accounted last year, for example, for 45% of the growth in the U.S., so when this sector says there is truly a revolution occurring in information technology that will touch each of our lives, I think it is important to listen when we are considering dispute resolution mechanisms.
So what we are doing right now at WIPO is thinking hard about how to implement an on-line dispute resolution mechanism, both technically and legally, and in this area I think that we have to be aware of what was said this morning by Mr. Veeder, that there is an important element that is "human chemistry" which comes into play only in face-to-face meetings and perhaps also there are cultural aspects that one has to pay attention to.
What I also want to point out is that commerce on the Internet is leading to a lot of disputes which are now micro-disputes. These are very small matters that do not necessarily require parties to travel a great distance and incur high cost to resolve them. In this area we are thinking that an on-line mechanism might be helpful. I would point out that even though the topic here is mediation, the on-line mechanism actually works better in the framework of arbitration, because you can talk about the elements that would be filed, the demand for arbitration, the answer, the statement of claim, the statement of defense, all of these things can be transmitted electronically and the parties can find that this is something that does decrease cost and increase speed. With respect to the hearing, you have to talk about whether the on-line mechanism will facilitate dispute resolution and in this area I suggest that an on-line mechanism is meant not to substitute for traditional practice, but to begin to be a hybrid approach, that is, the parties should use what they are comfortable using and not use what they are not comfortable using. I do not know if those of you that have used e-mail have noticed there is a new phenomenon occurring: e-mail in itself is taking on a conversational tone. The way the English language is written changes using e-mail. How will this new phenomenon be useful in the arbitration or mediation context? Will it bring for example the formalized process of arbitration back towards something that it was originally intended to be, an informal dispute resolution mechanism?
We need to tread carefully when we go into this area, particularly now that we are talking at least initially only about domain names where we can make certain assumptions about the users, their computer literacy and perhaps also the computer literacy of their lawyers, and so I would appreciate in the future any comments that you might have as your experiences in this developing area increase.