Here’s another dirty little secret: the legal system can’t accommodate the world of online commerce. Do business on the internets with someone in another state and get screwed? Sorry, pal.
If you use paypal or a credit card, you have their dispute resolution mechanisms available, but if that doesn’t work out for you, your options suck. It’s left to some kids in a backroom somewhere to decide whether you “win or lose” the dispute based upon whatever strikes their fancy. The guy who came up with the paypal system took it outside with a start-up called Modria. It’s not a good system.
In a comment to a post at My Shingle about why lawyers aren’t more affordable, Lance Soskin jumped in to promote another start-up online dispute resolution biz, eQuibbly, headquartered in Canada. Despite my knee-jerk dislike of promoting business in other people’s comments as cheap and tawdry, my interest in online dispute resolution compelled me to check it out.
There are some aspects of the front page that are, well, kinda dubious. “Former Official Trial Judge”? As opposed to the former unofficial ones? Except the two judges named aren’t trial judges, but appellate judges. Okay, that may be too lawyerly a quibble, even if they go out of their way to say otherwise. On the other hand, if the business gets any traction at all, two arbs/former judges aren’t going to cut it. So who else?
But then the language in the front page promotion is disturbing. “eQuibbly is quicker, cheaper and more convenient”? I’m pretty sure they mean less expensive, not cheaper, but at the same time, the word is there and suggests to me that someone may have made a Freudian slip.
When I reviewed Modria, I created a top 10 listicle of problems confronting online dispute resolution that needed to be addressed, and weren’t. Here’s the list:
1. Who is deciding things at your small claims court?
2. What are their qualifications? Are they lawyers? Are they nice folks you’ve trained with your special sauce and we should just trust you because you have a cute smile?
3. What makes them neutral, reasonably unbiased, especially with regard to potential corporate account users who might require all disputes be handled there?
4. What “law” is applied in determining disputes? You have no jurisdictional limits, which is good, but then that comes without law. So is there law, or are decisions whatever happens to strike the fancy of one of those nice folks trained with your special sauce?
5. How does a party submit evidence? How does the “judge” know it’s real?
6. How does the opposing party get to see the evidence in advance of being put to the test of disputing it?
7. How does the inarticulate litigant overcome the limits of his skills? Is this done in writing or via live video?
8. Is there an appeal process? Is there anyone to go to when the dispute resolution process falls into the toilet?
9. Does anyone review the “judge’s” determination to make sure it isn’t batshit crazy?
10. What assurance is there that this process can provide a fair, rational and honest means of determining disputes?
Unlike Modria, eQuibbly has at least made the effort to address the first two, and perhaps three, questions above by using ex-judges as arbitrators. This is a start, though it remains questionable how two old-guy judges will be able to handle volume of any sort, and who else will be brought into the fold. At the “about” tab, the assertion states:
eQuibbly has assembled a team of highly respected Judges, who presided over trials in courts of law in the U.S. and Canada, to resolve cases on eQuibbly.
A team? That sounds cool. So why are there only two judges identified at the “judges” tab? Perhaps the rest of the team is shy, too modest to have their robed-likenesses online? Even so, that leaves them in the dark, if they exist at all.
There is also a question about whether two former appellate judges are really equipped to handle small claims pro se litigants. Having served as a small claims arb for years and tried more than a thousand cases, I can tell you that they can be totally nuts and monumentally difficult and frustrating to deal with. That comes from a guy who holds hands in the hallway with regular folk. Appellate judges don’t do a lot of hand-holding.
But Question 4 not only presents a huge stumbling block, but an answer from eQuibbly that is decidedly unsatisfying.
What laws are used to determine the outcome of a dispute?
Cases on eQuibbly are decided based on North American legal principles and what is fair and just given the circumstances and the facts surrounding the dispute, not the technical laws of any one state or province. Examples of North American legal principles include: the right for private parties to enter into private contracts; a contract consists of voluntary promises between competent parties to do, or not to do, something, which the law will enforce; freedom of speech; equality before the law; separation of church and state, et cetera.
Oh crap. North American legal principles? WTF? As in maybe U.S. or maybe Canada, because it’s not like they’re two different countries? Or because there is no such thing as a federal small claims body of law, because it’s a state thing? Or because…well, you get the idea.
Unlike in government courts, your case won’t be decided based on a technicality or a rule that doesn’t make sense. Unlike in government courts, Judges on eQuibbly are not influenced by how well-spoken you are, or whether you can afford an expensive attorney who knows how to manipulate the laws and loopholes to one party’s advantage.
Whoa. No technicalities or loopholes? No rules that don’t make sense? How cool is that? Except, of course, those are the things that we call “law,” and they exist so that people can conduct themselves in accordance with it and rely on the expectation that it will guide their lawful conduct. But hey, if they only use the rules that make sense to the dumbest nutjob on the internet, shouldn’t that be good enough to provide substantial justice?
Otherwise, eQuibbly suffers from the same failings as Modria. It’s not that there isn’t a desperate need for the function to be fulfilled. Clearly, the “official” legal system can’t accommodate such disputes, and given the fact that online commerce isn’t going anywhere, a huge gap remains unfilled.
But as much as I would love to see someone produce an alternative that can survive minimal scrutiny, no such service has as yet been created. And having given a good deal of thought to the inherent problems, it seems unlikely that there is any solution that will overcome the massive obstacles.