Dispute Resolution

Seth Kanahoe wrote:



While there are a number of points supporting what you say, mediation can still play a role in disputes, as often what is written may be interpreted in different ways by the different parties.

First, the points that support what you say:

1. As there is no process for documenting and registering contracts, it is only by mutual agreement of the parties that agreed contract language can be determined. If the parties disagree on what was signed there is no process to get a notarized copy. That would be a useful addition to the game.
2. There is no body of law surrounding the actual meaning and interpretation of words and phrases. In contract law, this is important because there will be a body of case law to interpret what a certain phrase means, and lawyers drawing up contracts will (or should) be familiar with the exact meaning. We will be going on common sense interpretation of wording.
3. The option of reference of the matter to a legally binding court does not exist. Even if the parties agreed to mediation, the losing party could walk away from the process and there is no legal recourse available. This also allows a recalcitrant party to just refuse to go to mediation, since the subsequent (and possibly more damaging) step is not available.

Still, as Wotsthe Lawson argues and as you later agree, there is still value in initiating this process.

Another comment by Wotsthe Lawson related to costs of the process, and that is another interesting question. It would be highly altruistic for the SL mediators to work without charge, but I am generally disinclined to regard altruism as a stable basis for economic activity.

The parties could each post a "bond" sufficient to cover the entire cost of the proceeding, and the mediator could draw from these amounts in proportion to the "liability" determined through the mediation. It might be all taken from one parties' bond, and the other receives their money back. It might be a 50/50 allocation of costs. If the level of mediation involves some determination of damages, an even larger bond could be requested, sufficient to cover the proceedings and the possible damage award.

This process could develop over time - it does take effort to get it started and I urge people to support those who are willing to make that effort.

If I read the first above comment by removing 'mediation' and,in the second , replacing 'mediation' with 'arbitration' then yes, I do agree with you entirely.

Arbitration is a totally different concept to mediation. Arbitration works almost like litigation, ie both parties set out before a neutral third party (judge/arbitrator) their arguments and evidence and pursue their claim to its fullest under an adversarial model and the neutral makes a decision usually based on the application of his or her interpretation of the 'law' to the facts. The only distinction of subtsance with litigation is that , in arbitration, there is no appeal. For arbitration to work there has to be a contactual commitment to prefer arbitration over litigation. The lack of appeal works for business disputes because the parties want certainty of the outcome so they can get on with their business.

On this basis you are totally correct. Arbitration needs a contractual commitment to accept the arbitration rules.

Mediation is a totally different model requiring a different approach. The neutral does not impose any view or decision - which is why your quote above "accept the results of mediation" blurs what you say - and importantly, the parties must not be adversial in their approach for it to work. Its one of the skills of the trained mediator to create such an atmosphere even though many mediations start out with the parties behaving as adversaries. There are other distinctions, such as , unlike with arbitration, in mediation the neutral will usually have confidential discussions with each party not revealed, save with specfic consent, to the other. In arbitration, as in court, all that is said by one party is heard by the other. This private caucus element is the key to mediation since it allows the parties to say what they really mean not what they want their opponent to hear. Given that the mediator hears such private thoughts from both sides, the most important duty he or she owes the parties is to provide total confidentiality over such private discussions.

With the knowledge of both party's innermost thoughts, and often what motivates a party to be in dispute is often not the same as the 'position' declared to the opponent (e.g he may say to his opponent that he thinks that the service he gave was below standard, but in reality he hasn't paid because he doesn't have the money right then to pay) , the mediator is in a unique position to consider how to assist the parties to move towards a
pragmatic outcome. In the problem in parentheses it could be about encouraging the service provider to accept delayed payments or encouraging the service buyer to offer some service/item in return.

I mentioned previously a 'third way' of neutral review. In fact as I have set out some explanations of terms, lets be more precise with the other options in dispute resolution so we all know the options and select what is most useful for SL:-

Non- binding Review: A neutral hears what each party has to say and issues a ruling which is not binding on the parties. In other words its a suggestion from a disinteretsed neutral. Good community spirit encourages parties to agree such reviews. Binding review binds both parties and is effectively arbitration.

Uniliateral Binding Review. The Review has to be complied with by one party but not the other. In RL this usually applies where the party who accepts in advance to be bound wants to do so in order to encourage trust in him by the other party. A good example is in retail where a store may benefit from saying to potential customers 'if you have a dispute with us about our products you can ask for a Review by a neutral appointed by our trade association and we will accept the ruling whatever it may be. You in turn are not bound'. Thus SL shops that adopt such a policy may find they attract more customers over those that do not.

Expert Neutral Evaluation. This is akin to Non-Binding Review but usually is used where there is a technical issue at the heart of the dispute, eg whether a piece of sofware is of acceptable standard. A neutral with expertise in the subject matter examines the facts and declares a view on the narrow issue on which he has been instructed. This is not binding but helps narrow the issues in dispute if not resolve them totally. The parties can, of course, agree to be bound to the evaluation in advance.

Adjudication. This is like arbitration, and thus is `binding, but often, albeit not always, relates to one or more issues within a dispute not to the dispute as a whole. It is also used more where the dispute is between a party and a regulatory authority over an alleged breach of a code of conduct.

Conciliation. This is very similar to mediation, and indeed the terms overlap and many people use either term for the same process. However, in my book, it is useful to think of conciliation as applying more to the people in the dispute than to the issues, eg in marriage breakdown you would talk about mediating a dispute as to how the finances are to be divided but conciliating to help them save the marriage. The term reflects the approach, conciliatory, encouraged to be adopted by the parties. So conciliation usually applies where there is a relationship existing prior to the formation of the dispute which the objective is to preserve. Employment disputes are another example.

I hope these definitions are helpful in this discussion. As a newcomer to SL, I would be interested to learn as to which may seem to be more appropriate fro SL. Also can someone list the sort of disputes that arise.

Thank you for clarifying your definitions. My only caveat is the following:

Mediation has two meanings in this context. It is a process in and of itself. And it can be part of a process of arbitration, in that it is the first and more desired approach to a solution, either used to adjudicate lesser issues, or to explore areas for mutual agreement.

As I said before, I fear that the issue here devolves into semantics and definitions more than a disagreement - procedural or otherwise. And, unfortunately, different disciplines deal with these issues according to different schemas, and I suspect that is why some of the definitions you've laid out do not perfectly match the definitions I've dealt with in my own professional life. As you say, "In my book, it is useful to think about..." certain concepts in a certain way.

Given the character of past debates on these forums, and the strong aversion of many residents to the idea of formal inworld or inforum administrative controls, my initial question to you was reasonable:

Are you proposing a private, contractual service for two or more parties in personal dispute? Or might this be somehow connected with Linden procedures and enforcement in a corporate-sanctioned, phased approach?

As to disputes that arise, they are fairly familiar: contractual, domestic and relational, parcel-related (use, aesthetics, and boundaries), creator and/or reseller infringement, intra- and intergroup conflict, violation of SL and RL privacy rights and privileges, mischaracterization - and a host of Linden-resident disputes that include violations of the ToS and CS, inventory and/or property loss, forum and inworld behavior issues, etc.

As I noted before, I suspect that the breadth of issues might require a breadth of approaches.

Thank you for clarifying your definitions. My only caveat is the following:

Mediation has two meanings in this context. It is a process in and of itself. And it can be part of a process of arbitration, in that it is the first and more desired approach to a solution, either used to adjudicate lesser issues, or to explore areas for mutual agreement.

As I said before, I fear that the issue here devolves into semantics and definitions more than a disagreement - procedural or otherwise. Unfortunately, different disciplines deal with these issues according to different schemas for different applications, and I suspect that is why some of the definitions you've laid out do not perfectly match the definitions I've dealt with in my own professional life. As you say, "In my book, it is useful to think about..." certain concepts in a certain way.

Given the character of past debates on these forums, and the strong aversion of many residents to the idea of formal inworld or inforum administrative controls, my initial question to you is still reasonable:

Are you proposing a private, contractual service for two or more parties in personal dispute? Or might this be somehow connected with Linden procedures and enforcement in a corporate-sanctioned, phased approach?

As to disputes that arise, they are fairly familiar: contractual, domestic and relational, parcel-related (use, aesthetics, and boundaries), creator and/or reseller infringement, intra- and intergroup conflict, violation of SL and RL privacy rights and privileges, mischaracterization - and a host of Linden-resident disputes that include violations of the ToS and CS, inventory and/or property loss, forum and inworld behavior issues, etc.

As I noted before, I suspect that the breadth of issues might require a breadth of approaches.

So many words. So much talk.

I will do mediation. For free.

But what I have to offer seems to have little to do with all of this talk.

Neal, I'm sure your mediation is the sort that most people are interested in, most people need, and most people will appreciate most. You'll do fine.

Me, I'm interested in what folks think. In SL and RL.

Yes, it has gotten a little out of hand, hasn't it?

Go for it, Neal. I'm sure you have a lot to offer.

Mediation cannot be part of the process of arbitration nor can it be used to adjudicate, however minor the issue. They are totally different procedures. There is no issue of semantics. They are like chalk and cheese.

But lets move on...



Mediation is a private service engaged in by consent of both parties. It is totally outside of any regulatory control and enforcement. Therein lies its key characteristic.

Thanks for the list of types of disputes which is helpful.

My goodness. What can I say?

We (which is to say a professional group to which I belong) have been practising this sort of thing for over ten years, with public institutions, the federal government, and foreign interests. We've used combinations of approaches on many occasions, sometimes successfully, and sometimes not. One of the main issues we have in integrating a team with people from different disciplines and professions - business, finance, academe, social work, administration, etc. - is finding a common "language" and a coherent set of methods and approaches that all feel comfortable with. We've found that declaratory statements from which there is no appeal are neither useful in organizing our professionals, nor in approaching the problems of our clients.

Perhaps you're right: it's not a question of semantics. Something else seems to be going on here.

In any event, I wish you success in your SL efforts.

My goodness. What can I say?

We (which is to say a professional group to which I belong) have been practising this sort of thing for over ten years, with public institutions, the federal government, and foreign interests. We've used combinations of approaches on many occasions, sometimes successfully, and sometimes not. One of the main issues we have in integrating a team with people from different disciplines and professions - business, finance, academe, social work, administration, etc. - is finding a common "language" and a coherent set of methods and approaches that all feel comfortable with. In other words, so that professionals who speak of "facilitative," "tranformative," and "evaluative" mediation can work with professionals who talk of "outsider-neutrals" and "insider-partials".

However, we've found that declaratory statements from which there is no appeal are neither useful in organizing our professionals, nor in approaching the problems of our clients. So perhaps you're right: it's not a question of semantics. Something else seems to be going on here.

In any event, I wish you success in your SL efforts.

Without the Rule of Law (which in this case would be official sanction by Linden Labs), mediation and arbitration within SL has no real standing. I also don't see Linden Labs handing a group of inworld residents authority to mediate and arbitrate disputes between two or more parties. That is Linden Labs realm and I would rather they handle it themselves.

If the parties come to a mutual agreement, and one of the parties doesn't comply, then there is a problem. I see two options here:

1) The terms of their agreement to include something to the affect that they agree SL has the right to step in and pay the money out of their account, reallocate the land, ban the person or whatever they agreed on. Then have some interface with SL for carrying it out.

and/or

2) SL modify the TOS to allow a designated body to post a list of names and possibly feedback text about specific indivuals who renegged on their agreement.

Danc

Effective dispute resolution requires two elements: (1) commonly-accepted authority, and (2) generally-accepted rewards.

What if prims were the reward and not L cash? How many griefers and abuse cases are simply driven by boredom? Why shouldn't prims be awarded for good behavior, and taken away for bad behavior - including sandbox privileges?

The whole economy, including poorly designed incentive systems like the present reputation system, doesn't work because its not based on the single scarcest resource: prims. Linden cash is virtually unlimited in supply, so a stipend or a stipend based on behavior doesn't really matter if its not fixed to an absolute value in the scarcest critical resource. To make a poor metaphor - its not the depth of the ocean that matters, its the amount of air on the surface where the boats float that does.

Land is a poor proxy for prims since the number of prims is fixed per land increment. An unlimited supply of cash doesn't work since there are no scale economies to owning land/prims. Therefore any incentive system is flawed, including the reputation system.

There are Chinese nationals working online in SL to accumulate Lindens for their their bosses. No kidding - the minimum take is $1,000 L per Avatar per day so that they can sell the Lindens for US Dollars. Beg, borrow, steal, or win - any method is used since these are poor kids just 12 and 13 who are put to work this way. Is that the kind of incentive system we want to enable or protect?

Why shouldn't someone be able to concentrate prims on any size parcel of land? Why shouldn't prims be bought and sold separately, above a basic minimum floor per parcel of land? Why shouldn't prims be allocated to each new player instead of Linden cash? Why shouldn't all the land be held in common, instead of just sandboxes?

An artificial, or managed, exchange rate doesn't resolve the scarce resource issue - it only complicates it. And all the incentive systems designed around a false currency produce inaccurate effects; for instance, reputation-based stipends, land auctions, work/build vs. play, etc.

What a lot people seem to be talking about is a dispute resolution process or legal framework - not an incentive system. Since there are no political entities in SL we presently confer those duties on the Lindens, but I'm not so sure they ever intended to perform these. They may be waiting to see what kind of political systems emerge, or should we all simply elect Anshe to represent us and provide those services?

Other thoughts? Come on, I'm listening....

Yes, of course, many orgs use two or more processes in sequence with the usual model being mediation , followed, if unsuccesful, with adjudication. But mediation cannot be 'part of the process of' arbitration nor 'used to' adjudicate which were the terms you were using in your earlier post to which I was replying.


Well its very very common in business to business disputes.

Arbitration - yes I agree. But the whole point about mediation is that it does not need any authority. Its doesn't even need any 'standing'. Sometimes in RL authorities may require mediation to be attempted before allowing litigation, but in every country, and for every form of dispute, mediation always has been, and also will be, an option for any two or more parties without any authority to do so. The reason why is that its simply an independent person helping people in private to settle their dispute.

Whilst authority is not required, accreditation of mediators is often recommended so as to ensure they have more to offer than just good intent and common sense. Now that is where Linden Labs may wish to engage at their discretion to ensure the standard of RL mediation is available in SL.

........and the suggestions by Dancininda Street make a lot of sense and add a further reason to engage with Linden Labs.

(1) Mediation can be part of a process when it is used in sequence with other approaches. Using mediation builds a "record" or "context" from which subsequent approaches can either benefit or not. I'm not sure why this is such an oblique concept; it's very straightforward, very common, and not much of a point to hang an objection on.

(2) It is common, and it is usually the first attitude that has to be dealt with, so that both parties can move on with the process. Again, I'm not sure why this is an issue for you.

Mediation can be part of a process when it is used in sequence with other approaches. Using mediation builds a "record" or "context" from which subsequent approaches can either benefit or not. I'm not sure why this is such an oblique concept for you.

It is common to see intransigent attitudes among businesses in dispute, and it is usually the first attitude that has to be dealt with, so that both parties can move on with the process. Again, a very obvious point.

I'm not sure where you're going with this, but I'm fairly done responding to these kinds of points. As I said: good luck with your SL endeavors.

Mediation NEVER builds a record or context. The cornerstone of mediation is confidentiality and the fact that nothing said can be repeated outside of the mediation.
Further, if it fails to resolve then there is no record which can be taken into account by any adjudicator.

why not instead of giving unnecessary rights to all the power hungry citisens simply set up an AI, i mean an automated dispute resolution system? and ring linden lab in the 1% cases not solved by the automated system?

Traxx, sounds like a bad start. Your volunteer mediators should openly admit who they are and promote the initiative. Not hide behind you. Do some of these members have hidden agandas or are they really not 'on-board' with the entire mediator initiative? Perhaps you should re-group and recruit volunteers who aren't afraid of listing their names. Mediators that are afraid of a little agression won't be very effective anyway.

Kyrah, the problem isn't the means of doing the dispute resolution but how you carry out when someone doesn't comply with the terms of their agreement. And like I've said before, that requires some changes from LL (see my post above). Are any Lindens listening?

As for an automated system, you could actually set up something that runs INSIDE of SL, which would be cool (me! me! let me do it! I'm hugely qualified). Of course, you really need both, since it'll be well over 1% of cases that don't resolve with an automated system.

I think SL potentially has some unique advantages dealing with person-mediated disputes over any other online methodologies. Picture sitting in SL on a lodge deck looking over a snow-capped mountain and lake below, bird and waterfall sounds in the background. Have a virtual toke and a cup of herbal tea. Now doesn't that sound calming? There might even be a future in it for online disputes that don't originate in SL.

Ecept that a sucessful mediation usually results in a binding agreement that is enforceable against a party who does not comply with the agreed to terms. Mediation defintely requires authority to enforce it.

Sorry to come back so many months late. Just looking afresh at the concept of how SL mediation would operate.

When I said that mediation does not need authority, I was thinking in terms of authority to hold the mediation and also in an RL context where binding agreements can be enforced under the authority of law. Since mediation, (but not arbitration!) is a device to assist people to resolve a dispute confidentially and between themselves, it never needs an authority to 'authorise' it to take place. However you are right when you say that there may be an issue that, once it succeeds and the parties reach agreement, how is that agreement to be enforced in SL.

OK - I suppose that is a matter for the Lindens. If two people reach an agreement that one does, desist from doing or pays something to the other then there needs to be some rule wherby , if it is not complied with, some action is taken by SL to the prejudice of that party. Would this be controversial? Why should it be when this is not enforcing a decison by a third party against that person's wishes , but an ageement by both parties readily agreed to.

I've been away for some time - has there been any movement towards mediation?

Wotsthe, never too late for a good thought. I'm glad you did, as it brought this fascinating thread to the "new threads" pile which is often all I've energy to read.

Much of the discussion here presumed either consensual resolution, or some enforcement from the SL "sovereign". I'm developing a theory that might support something in the middle.

What if we regard SL as a feudal society, in which all power and authority derives from the pleasure of the sovereign (the Linden organization), which is subject only to the law of the Diety (the RL government)? The sovereign then grants limited "rights" in land to some and limited civil "rights" to all, subject to all such rights being taken away at the pleasure of the sovereign. Sound like Medieval Europe or Japan yet?

That leaves us with various landowners who have powers to ban or exclude individuals from their property. Presently, the cost of a single (64k) sim is high enough that only a small fraction own an entire sim. I suggest those might be considered like a functional village in a medieval system, the smallest unit that can have a functioning government, like a city-state or a village.

What if a few things happened?
1) The proprietors of one or more of those city-states or villages (entire sims or functional equivalents) agreed to resolve disputes arising in connection with their sim and its products and services, either personally or by specifying a process and provider. Call him/her the "patron".
2) Various patrons allied to join one of a voluntary Federation of Sims and recognize reciprocity among their own judgments and agreed on common methods of resolution and trusted providers. Sounds like the Continental Congress or the EU before union?
3) Those with a dispute unwilling to submit to resolution by the Federation's method are banned from all Sims in that Federation.

Having such a rule of local law, similar to the feudal lord or lady making and enforcing law within the fiefdom, would attract citizens to well-ordered sims and keep scofflaws away from well-ordered sims. While it would not enable what the lawyers call mandatory injuncitions or specific enforcement, it would utilize an ancient form of social sanction: shunning or banishment.

This would allow some self-help with some enforcement (banishment) within the limited powers of land owners in SL, and not require the intervention of the Linden organization.

It would call for one or more Federations of Sims and the voluntary involvement of their "feudal lords or ladies". It makes me think of my visit to the London Guildhall in the City of London many years ago, in which the various merchant guilds of London administered a similar system that became the Corporation of the City of London, its self-governance dating back to the 12th century. http://en.wikipedia.org/wiki/City_of_London

Thoughts?

Frank