ONLINE DISPUTE RESOLUTION: A WAY FORWARD

“ODR is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or combination of all three. In this respect it is often seen as being the online equivalent of ADR.”

Hon. Arthur M. Monty Ahalt

Introduction

ODR i.e. online dispute resolution which uses technology as a means of resolving disputes between parties is called online dispute resolution. Negotiation, mediation, arbitration, or an amalgamation of all three, is what constitutes it. The online version of alternative dispute resolution (ADR) or e-ADR is often perceived as the online equivalent of these practices. In the Digital Age, ODR mechanisms are regarded as indicators of tomorrow’s global dispute resolution landscape.

By referring to online communication, we mean that it is delivered electronically, especially over the internet. Including the use of telephones, mobile phone packages, faxes, e-mails or any other kind of communication software available on the internet as well as any other means of communication that may be useful in solving disputes. In spite of this, a successful partnership between ADR and technology couldn’t have been achieved. There has been a significant challenge to the global map since then: how to resolve disputes across borders in the electronic sphere. The presence of both legal and non-legal obstacles, such as physical, cultural, linguistic and judicial obstacles such as the appropriate application of the law, competent jurisdiction or enforcing judgments impede traditional methods of resolving disputes in the online surroundings. While ODR is not without its own shortcomings, it has been advocated as being a viable alternative to traditional methods of dispute resolution.

Forms of Alternative Dispute Resolution

The increase in cyber transactions in the new economy makes alternative dispute resolution seem natural. As result of the speed of transactions (one of the many benefits of electronic commerce) requires that disputes be adjudicated at an equal degree of speed. Online dispute resolution enables the resolution of disputes through mediation, arbitration, and negotiation.

  1. Negotiation

Negotiation is essentially a process in which parties exchange views and propose solutions and exchange proposal ideas when two parties wish to settle their dispute outside of court. The only way to resolve the dispute is through mutual agreement between the disputing parties. Communication and perceptions play a big role in negotiations. The act of negotiating involves putting forward offers, counteroffers, and concessions to reach an agreement between two or more parties. Negotiation can also be viewed as a complex and emotionally intense decision-making process that assists in reaching for a mutually beneficial agreement. Mediation and arbitration are the most common forms of ODR. They are not widely used in cases of negotiation.

  1. Mediation

Mediators facilitate consultation among the parties involved in conflict for the purpose of resolving the situation. It is the responsibility of a mediator, who is an impartial third-party, to carry out mediation. A mediator facilitates a process of private discussion and resolution between disputing parties. With the assistance of Internet technology, mediation can be conducted entirely online, and parties can also meet or meet in person to discuss issues if needed. These methods are sometimes used in combination to resolve disputes online. A mediator can only facilitate the mediation process. A decision is at the discretion of the parties involved.

  1. Arbitration

During the arbitration, a third party reviews the issues, arguments, and evidence and makes a decision about the disagreement. Mediation differs from arbitration since the neutral arbitrator has the discretion to decide the issue at hand. The parties in dispute approach this neutral arbitrator for his assistance in resolving the dispute. Traditional litigation is formal, complex, and can take a longer time. Arbitration is much less formal and complicated, and it can be completed considerably faster too. In addition to mediation, this process may be conducted entirely online (via email and instant messaging, videoconference, or even in person at a physical location with an arbitrator present). The arbitrator’s role is similar to that of a judge in a trial, but with fewer rules as compared to a trial court judge and the arbitrator does not need to apply the law to the complete extent.

Advantages

ODR has an important benefit of removing travel needs and dramatically reducing reduces cost. Also, it has been noticed that ODR can help make dispute resolution more efficient, enabling better time management and cost-savings, as well as increased flexibility in the procedure. They can also decide on designing a more flexible process, setting stage and deadline dates based on their convenience. Indian Constitution stipulates affordable and effective justice as one of the Principles of State Policy.

Disadvantages

  1. Written Consents and Mutual Consents:

In order to invoke an ODR process, both parties must affirmatively consent, either explicitly or individually through a joint agreement, otherwise any decision rendered by a neutral will not be legally valid and enforceable.

  1. Place of proceeding

It seems impossible to assign a place of proceedings when all proceedings are conducted online, with parties and neutrals in distinct locations. Observations such as these led some scholars to conclude that there is no location for virtual arbitration.

Online dispute resolution raises questions of what substantive law is applicable to disputes. ODR may minimize elements of the pre-trial stage, such as discovery, interrogatories, and collection of evidence, in an effort to speed up the resolution, thus ending up failing to determine the true and correct state of facts.

  1. Pendency of cases

Whether it is pending civil or criminal cases or cyberlaw cases, local courts in India face a large number of cases each day. However, despite efforts by the government to expedite pending cases, the number of pending cases seems to not be declining with the growing variety of cases arising every day.

ODR finds it most challenging in India to grow because of the lack of human interaction and communication, the lack of literacy, the lack of confidentiality of proceedings, and low financial support. The most pressing and pivotal challenge is the admissibility of ODR due to insufficient trust and confidence, cultural, educational, and linguistic barriers, and the narrow range of disputes.

Steps taken by the Government

  • A committee of high level representatives from NITI Aayog has been formed to develop an action plan for ODR.

An important part of the report is a comprehensive review of the current state of ODR in India and globally, identification of current and possible challenges, and suggestions for bringing ODR to a broader audience in India.

  • Bharat Net Project

A high-speed broadband network will be built through optical fiber at an affordable price to connect more than 2.5 lakh Gram Panchayats.

Way forward

  • The expansion of ODR in India cannot be achieved without a supportive ecosystem.
  • A greater level of access to technology is needed, both with regards to construction of infrastructure as well as an increase in digital literacy levels. In order to meet the growing need for conflict resolution by trained and qualified mediators and arbitrators, more mediators and arbitrators need to be employed.
  • For quality assurance, all training standards should be consistent with practical experience and simulations of ethical and best practices.
  • Legal tech hubs among other incentives should be established to encourage innovation.
  • An ADR framework that is based on the existing legislative framework should be strengthened and ODR-related legislation should be introduced.
  • Phased deployment of ODR to be preferred over ramping up capability on every front simultaneously.
  • An institution can be accredited and an auditing mechanism can be implemented permanently.
  • Our Constitution promises affordable and accessible justice for all, and this is the era of justice delivery that will fulfil those promises[3].

Suggestions and Conclusion

Soon we will feel the need for ODR, and we must be prepared. It is imperative that a sound technological legal base is in place before any developments begin. As part of India’s constitution, it is expressly mandated in Article 21. The fact that Code of Civil Procedure section 89 came into effect only on 1st July 2002, should not interfere with the constitutional mandate. All Bar Councils, all Bar Associations, and all lawyers should give conciliation/mediation more priority than adjudication, so that the litigant stands a reasonable chance of settling the dispute and leaves the more difficult and challenging cases to be adjudicated. There can be no doubt that if the state promotes ODR, a speedier, more economical, and more convenient system of criminal justice will result. ODR is therefore better for society at large and for individuals seeking justice in particular if it is implemented sooner rather than later.

References

  1. Ms. Apoorva Dixit, Online Dispute Resolution: An Indian Perspective, 2 IJLMH, 1-2 (2018), https://www.ijlmh.com/wp-content/uploads/2019/04/Online-Dispute-Resolution-An-Indian-Perspective.pdf.
  2. Deepak Verma, Anshu Banwari, Neeraj Pande, Online Dispute Resolution, INTECH OPEN (Sep. 19, 2018), https://www.intechopen.com/chapters/61440.
  3. Soumya Jha, Online Dispute Resolution- A Compelling option or a Far- Fetched Reality During Pandemic Times, MONDAQ (Aug. 11, 2021), https://www.mondaq.com/india/arbitration-dispute-resolution/972422/online-dispute-resolution-a-compelling-option-or-a-far-fetched-reality-during-pandemic-times

 

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