DEPARTMENT OF COMMERCE
FEDERAL TRADE COMMISION

PUBLIC WORKSHOP: ALTERNATIVE DISPUTE RESOLUTION FOR CONSUMER TRANSACTIONS IN THE BORDERLESS ONLINE MARKETPLACE

CONTEXT OF ADR IN ELCTRONIC COMMERCE,

Paper submitted by Dr. Luis Miguel Díaz and Nancy A. Oretskin, U.S.-Mexico Conflict Resolution Center, Las Cruces, New Mexico

We want to share two key ideas to be considered for the Public Workshop for online dispute resolution. The first concerns the personal contact of consumers and the second idea concerns the role of governments.

Rules for online disputes should include an escape clause rule for personal contact

There may be two classes of online disputes. One that is generated online or one that is generated somewhere else. In both cases there are humans behind the disputes. Internet has added a new mode of communication as far as the speed, although it uses written language, a very old mode of communication. The caveat is not to lose sense that even the very best written communication cannot substitute the personal communication in which the communicators face each other and express their thoughts and emotions in verbal and body language. Therefore, whatever system of rules for online disputes is adopted, it should include a rule which allows for personal contact between the disputants, whether by themselves or with the assistance of a facilitator-mediator, or an arbitrator.

Governments should make known online rules addressing disputes to consumers

Commerce is as old as a social practice can be in the U.S. and therefore an aspect of the American culture is composed of rules of how commercial deals are made and how commercial disputes may be solved. Depending on whether a consumer has as an occupation, a trade related activity or not, or if she/he is a professional conflict solver or not, the hypothetical consumer may know more or less such rules. However, because Electronic commerce is a new phenomenon, it is a liability of governments, for the protection of consumers, to make known which are the rules for dispute resolution online. Clear understandings of the rules that will be applied to negotiation, mediation or arbitration must be made known to the consumers. It is necessary to educate in this new universe of old activities. It should not be assumed that consumers in online disputes know what the rules are.