Online Mediation and Arbitration – the New Normal?


Online Mediation and Arbitration – the New Normal?


The world is witnessing a situation of pandemic and the conditions are far from being normal even in the near future. The state of affairs is dreadful as social distancing and lockdown are the only measures to contain the spread of Covid-19 so far. The administration of justice in India has a history of being delayed and the coronavirus has made the situation even worse. Although the Supreme Court has allowed the online filling and hearing of cases, one cannot neglect the fact that the judiciary is already overburdened and heavily clogged with tons of cases. An improvised and efficient solution is required to ease pressure on courts and the answer to this can be Online Dispute Resolution or ODR.Video Mediations/Conciliations and Video Arbitration makes it easier for the clients to address their grievances. A client can join the meeting remotely, or can go to their attorney’s place to participate. Video technology allows an attorney and the client to be placed in virtual breakout rooms, where they can speak privately, while the Mediator/Conciliator and the Arbitrator speak with other attorneys.  
In India, due to this situation of continuous lockdown due to COVID-19 pandemic, it has been observed through online courts that it is not as such convincing approach to file matters through e-method system. In most of the cases either it has resulted in link failure or some issues due to technical glitch over the internet which is beyond the understand of Jury as well as the advocates. There is no skilled training conducted and thus it resulted in more of an insecure mode of Dispute Resolution System. 
Therefore, in the current situation the combination of ADR and technology can provide an efficient and cost –effective alternative to e -courts where settlement will play a major role. All we need is to be proactive by thinking outside the box.
Online Dispute Resolution or ODR

It a process to settle disputes outside courts, combining Technology and Alternative Dispute Resolution ("ADR") mechanisms. ODR covers disputes that are settled over the internet having been initiated in cyberspace but with a source outside it i.e. offline. Originally, arbitration was intended as an alternative to going to court for various kinds of disputes but with time the method itself has become complex and expensive. ODR offers a faster, transparent and accessible option for many companies to resolve disputes online particularly those who have high volume and low-value cases. In the past half-decade, India has seen significant growth in the volume of online transactions, no other position would be more convenient to accept ODR as an efficient mechanism to resolve disputes and hence implement a fast and fair dispute resolution system.
ODR Methods

Online Dispute Resolution can be seen as an online equivalent of ADR as it primarily involves the use of negotiation, mediation or arbitration for dispute resolution.
• Synchronous ODR is a method of dispute resolution where the parties communicate with each other in real-time by using various video-conferencing applications.
• Asynchronous form is where communication is not conducted in real-time but via email or other such communication applications.
• Online Mediation is coming out to be the most favorable form of dispute resolution with nearly 70% of ODR platforms using the same to reach a conclusion. Typically, online mediation starts with sending an email to parties that contain basic information about the proceedings followed by virtual meetings to be conducted in the chat rooms.
•Electronic Arbitration is a less popular method of online dispute resolution but it cover-up the process up to a certain extent.

ODR Platforms

In recent times, a shift in the pattern of resolving disputes can be established as more and more ODR platforms have become operable in the country facilitating particular kinds of dispute resolution for many national and international companies.
Such ODR systems have made the conflict resolution process simpler by integrating the already developed ADR process with cutting edge technology, making the process completely practical and time-consuming.

• CADRE or Centre for Alternate Dispute Resolution Excellence is a website-based platform for ODR. First, one party approaches the platform which then contacts the other party. If both the parties agree then an arbitrator is appointed, and time-stamped intimations are sent through e-mails or WhatsApp. Usually, the parties do not meet face to face, but they make contact electronically via video calls. CADRE has been resolving tenant and rental contract disputes for NestAway an online home rental startup.
• SAMA is another ODR platform facilitating easy access to high-quality ADR service providers and helping people resolve online disputes. 
• CODR or Centre for Online Dispute Resolution positions itself as an institution that will administer cases online end to end.
• AGAMI is yet another non-profit ODR platform which aims to build a better law and justice system by providing time-efficient and feasible methods of dispute resolution.

Some Effective Methods to Conduct Online Dispute Resolution (ODR)

• Careful preparation: Video mediation is likely to require lawyers to spend more time preparing their clients for mediation than traditional in-person mediation often does. In addition to ensuring clients are adept at using technology, lawyers need to spend whatever time it takes pre-mediation to make sure the client understands their case's plusses and minuses.It is never a good idea to leave the first real discussion of danger to the mediator, which is also true in conventional mediation. With video mediation, mediators will find it harder to earn and retain the trust of the parties rather than being in the room quickly.
• Know the Technology: Attorneys will work with the specific video equipment to be used at mediation before mediation. Pacific ADR will assist in this but extra practice may be necessary, especially if attorney and client will not be at the same location during mediation.It is important to note that you should be comfortable with whichever technology you are using, be it ZOOM, Skype, Microsoft Teams, or teleconferencing. 
• Allow Enough Mediation Time!Counsel and mediators should anticipate breakdowns in the early use of video mediation. The obstacles can be technical, or they can result from party involvement from multiple or even many different locations and/or time zones. These realities will almost certainly require at least incrementally more time for mediation than would be mediated in person in a similar case.

Conclusion

Globally ODR witnessed a boom with the e-commerce sector when E-bay and PayPal started resolving their disputes online. Countries like U.S.A, China, Brazil, and some European Union nations have already adopted the ODR mechanism by constituting their separate platforms to resolve disputes arising out of e-commerce transactions. Millions of disputes have already been dealt with successfully without even filing a single suit in a traditional court of law. It is a proven fact that technology improves with time and technology being the main ingredient of different ODR methods, it is certain that ODR will come up with new and more desirable techniques.
ODR is still in its infancy stage in India but it's only a matter of time before ODR is introduced in India on a wide scale.The electronic form of dispute resolution tries to enable new possibilities that were previously unavailable such as the virtual simultaneous presence of all the parties without needing personal attendance at a place and time. With 4.5 million cases pending in high courts, 31 million cases pending in district courts and 350,000 backlogs in the top 5 central tribunals, without a doubt we are in need of more and more ODR platforms and to come up to the rescue. ODR mechanism being simple and effective has the potential to come into mainstream dispute resolution systems and the acceptance of it cannot be called into question. Soon, ODR will not only serve as a platform for quick disposal of cases but also as an area of employment for thousands of arbitrators or advocates.


References :- 

‘Dispute Resolution Overview’ <https://pages.ebay.com/services/buyandsell/disputeres.html>
‘Online Dispute Resolution: Companies implementing ODR <http://libraryguides.missouri.edu/c.php?g=557240&p=3832247> accessed 06 December 2016 
Indulekha Aravind, ‘Online Dispute Resolution is beginning to find takers in India’ Economic Times (12 Jan, 2020)

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