The issue of online dispute resolution is a relatively recent phenomenon. In the early years of the internet, between approximately 1969 and 1992, the conditions for dispute were missing. During this time, internet access was restricted to academics and the military, and commerce was not permitted. Changes to these rules, in terms of who was allowed to access the internet and what types of things they could do there, created the conditions necessary for disputes to occur. Thus, online dispute resolution has grown rapidly in the last 10 – 20 years.
Drawing from his book, Digital Justice: Technology and the Internet of Disputes, co-authored with Orna Rabinovich-Einy, Ethan Katsh analyzed how technology influences access to justice across five areas: ecommerce, healthcare, work, social media, and the courts system. Katsh explained that his central concern is to create an online environment with improved access to justice and dispute resolution for individuals. Currently, “conflict is a growth industry.” We are experiencing both a high level of conflict and increasingly novel kinds of disputes. Examples of such novel disputes include not only arguments over goods exchanged, such as what happens often on Ebay, but also increasing arguments over quality of services, propelled by growth in the sharing economy through sites such as Airbnb or Taskrabbit. The particular types of disputes we now have are largely a by-product of innovation online, so existing strategies we have to deal with conflicts, such as courts, are often either inefficient or irrelevant for these specific circumstances.
If we rely on outdated methods like courts, mediation or arbitration to address these issues, there are four consequences: individuals’ risk increases, and the products’ or services’ trust, use, and value all decrease. Therefore, Katsh wants to increase individuals’ online accessibility to dispute resolutions. To do this, he suggests that we need to continue to develop new tools and systems that address disputes in this rapidly changing social and technological context. There have already been some advancements towards digital justice, despite the issues that still exist. With more institutions moving online, some automated dispute resolution systems have cut costs, simplified complaints through pre-fixed language, reduced third-party bias, and offered long-term big data that can be analyzed for trends and potentially create pre-emptive solutions for these types of problems. Making use of this data in new ways may help shift the emphasis to preventing, rather than resolving disputes.
notes by Donica O'Malley
Professor Katsh is widely recognized as one of the founders of the field of online dispute resolution (ODR). Along with Janet Rifkin, he conducted the eBay Pilot Project in 1999 that led to eBay’s current system that handles over sixty million disputes each year. With Professor Rifkin, he wrote Online Dispute Resolution: Resolving Conflicts in Cyberspace (2001), the first book about ODR. Since then, he has published numerous articles about ODR and co-edited Online Dispute Resolution: Theory and Practice, which received the International Institute for Conflict Resolution book award for 2012. The frequently mentioned metaphor of technology as a “Fourth Party” was first proposed in Katsh and Rifkin’s Online Dispute Resolution (2001).
Professor Katsh is a graduate of the Yale Law School and was one of the first legal scholars to recognize the impact new information technologies would have on law. In The Electronic Media and the Transformation of Law (Oxford University Press, 1989) and Law in a Digital World (Oxford University Press, 1995), he predicted many of the changes that were to come to law and the legal profession. His articles have appeared in the Yale Law Journal, the University of Chicago Legal Forum, and other law reviews and legal periodicals. His scholarly contribution in the field of law and technology has been the subject of a Review Essay in Law and Social Inquiry.
Professor Katsh has served as principal online dispute resolution consultant for the Office of Government Information Services (OGIS), a federal agency mandated to provide mediation in Freedom of Information Act disputes. During 2010-2011, he was the Fulbright Distinguished Chair in the Humanities and Social Sciences at the University of Haifa (Israel). He has been Visiting Professor of Law and Cyberspace at Brandeis University and is on the Board of Editors of Conflict Resolution Quarterly. He was principal dispute resolution advisor to SquareTrade.com and is Chairman of the Board of Advisors of Modria.com. His principal current research concern involves issues related to health care and, more particularly, to disputes over electronic health records (see How Patients Can Improve the Accuracy of their Medical Records).
Since 1996, Professor Katsh has been involved in a series of activities related to online dispute resolution. He participated in the Virtual Magistrate project and was founder and co-director of the Online Ombuds Office. In 1997, with support from the Hewlett Foundation, he and Professor Rifkin founded the National Center for Information Technology and Dispute Resolution at the University of Massachusetts. During the Summer of 1999, he co-founded Disputes.org, which later worked with eResolution to become one of the first four providers accredited by ICANN to resolve domain name disputes. From 2004 – 2010, Professor Katsh was co-Principal Investigator, with Professors Lee Osterweil and Lori Clarke and Dr. Norman Sondheimer of the UMass Department of Computer Science, of two National Science Foundation funded projects to model processes of online dispute resolution. This work was coordinated with the United States National Mediation Board.
Professor Katsh has chaired the International Forums on Online Dispute Resolution, held in Geneva in 2002 and 2003, Melbourne in 2004, Cairo in 2006, Liverpool in 2007, Hong Kong in 2007, Victoria (Canada) in 2008, Haifa (Israel) in 2009, Buenos Aires in 2010, Chennai (India) in 2011, Prague in 2012, Montreal in 2013, Silicon Valley in 2014, New York in 2015 and The Hague and Beijing in 2016 and in Paris in June 2017. Professor Katsh received the Chancellor’s Medal and gave the University of Massachusetts Distinguished Faculty Lecture in October 2006. In 2014-2015, he was an Affiliate of Harvard University’s Berkman Klein Center for Internet and Society. He is the 2017 recipient of the D’Alemberte-Raven Award from the American Bar Association Section of Dispute Resolution.