Let`s Resolve Online
“Overall, we need a fundamental change in mindset – dispute resolution to be seen not as a court where justice is administered but as a service which is availed of”
-Justice DY Chandrachud
At times of covid crisis when each one of us is locked in our houses , digitization has changed the pattern of our shopping, dining, banking, learning and in toto online being the new normal has changed the way of our living in entirety and disputes constituting a considerable segment of human life can`t be let out from this new normal .With 67 lakh case hearings being held across India via video conferencing hints that virtual courts would going to be a reality soon ,however Indian judiciary lacking in streamlined online capability being a well acknowledged fact is a matter of concern. With 62054 cases pending with Supreme Court ,over 5 million with High courts with 0.8 million cases being added to backlog every year and thus Indian Judicial system which dwells under the shadow of unresolved cases seems time consuming, onerous and expensive to a litigant . Even before the pandemic amidst which pressing need for e-courts was realized ,the slow administrative process ,poor infrastructure , vacant vacancies has contributed to the need of major technology driven overhaul . The ADR mechanism currently sustains the main stream judiciary by partially addressing the justice gap however with extent of international transactions and small businesses and litigants who had previously discovered the advantages of ADR in offline world are beginning to discover the benefits of ODR ( online dispute resolution) in the online world . It is necessary to understand that an ordinary litigant rather being concerned with black robed judges ,courtrooms or lawyers is much interested in relief and that too as quickly and inexpensively as possible and as every crisis provides an opportunity it`s culminating point for Indian judiciary to ramp up it`s ODR.
What is (and is not) ODR ? :-
At the time alternate dispute resolution is becoming popular, litigations worldwide are rapidly being integrated with information and communication technology . The emergence of internet has transformed the face of litigation as with ODR disputes no more being tied to geography and hence disputants can reach to resolution even if located on different continents and that too without the need of retaining expensive legal counsel and thus plays a key role in decentralizing legal framework. ODR is a mechanism to resolve disputes using electronic communication and ICT supplemented with various forms of ADR such as mediation ,negotiation or arbitration however it is often simply understood as e-ADR or technology enabled ADR but it`s potential benefits extends far beyond including dispute containment and even dispute avoidance and ensures predictability, consistency, transparency and efficiency of the judicial process.
Two Models – two basic models of ODR can be seen
1.Opt -in model – in which option of going into ODR is voluntary.
2.Opt-out model – under which it is mandatory for parties to enter into ODR for at least one session, and then the parties have liberty to opt out if they feel so.
With a well implemented ODR program van expand Indian economy upto USD 26 billion, materializing of this economic gains needs a boost in quantum of cases going to ODR, to achieve this we need to move to opt-out mechanism for ODR , and as in many litigations, government is a part to litigation hence in inter govt. or intra govt. litigation additional layer of ODR needs to be added .
Most Common ODR Types – At an instance ODR providers provides with various platforms managing services while at other ODR providers involves professionals. Some ODR methods are directly inspired from traditional ODR while others are not .
1. Assisted Negotiation - It is an online computer-assisted negotiation, in absence of a human third party and technology plays a key role in working out a solution by asking questions, suggesting answers, and sending reminders. For example, e-bay and Paypal have platforms to address disputes with customers, ICICI bank has launched an automated rule based ODR. Automated negotiation is a specific type popular in monetary claims and involves blind bidding.
2.Online Mediation -is a voluntary mediation proceeding conducted over the Internet with the assistance of a human third party however is more than a traditional mediation is characterized by the absence of face-to-face inter action, and technological tools play such an important role that they are considered a fourth party.
3.Online Arbitration -is an arbitration proceeding conducted over the Internet with the assistance of a human third party arbitration, in principle, there is no face-to-face interaction, technology plays the role of a fourth party, and notice of the award is delivered online.
Emergence of ODR :-
Significant changes have occurred in online environment since 1990s, growth of internet has increased usage and made access easier. In twenty first century societies are more acquainted with networking and the drastic change resulted in e-revolution and despite the 2000-2001 economic crisis known as the "Dotcom bubble burst" and the 2009 recession, the Digital Economy has boomed, resulting in an exponential rise in e commerce giving rise to new types of disputes to be resolved between parties located at different locations, such disputes may arise in B2B,B2C or even C2C . Another reason which gave birth to ODR was ADR movement and ODR developed an online extension of ADR. The courtroom litigation might have worked in twentieth century but with blooming ODR start-ups, e- filing of cases in twenty – first century it`s time for India to ramp up its ODR capabilities.
Pro`s Of ODR :-
Decentralization - With burgeoning case load ,the responsibility of justice delivery falls solely on the shoulders of judiciary and formal courts and as traditional litigation is expensive and time consuming ODR has potential to decentralize, democratize, diversify and disentangle judicial process. Court will be facing avalanche of cases post covid cases such as cs such as.
Accessibility – ODR benefits people from all segments ,as the court system in most parts of the country is expensive and inaccessible thus ODR relies on asynchronous communication, eliminates the requirement for the physical presence saving cost and time and hence emerges as an effective alternative specially for the vulnerable groups such as women ,elderly and disabled people and poor .
Change in perception- ODR can change social narratives related to disputes shifting focus from adversarial court procedures shifting focus from adversarial court to collaborative mediated resolution with parties becoming more amicable and solution oriented and can even deter filing of frivolous suits where the primary objective is to delay or threaten the counterparty.
Data generation- By resolving disputes online will lead to generation of a large amount of data which will form the basis for improving ODR which will improve the further experience.
Economic gains and Ease of doing business- increasing access to ODR by 1% against global benchmarks can yield a 0.17 % higher GDP growth benefitting all stakeholders alike as efficient dispute resolution increases firms productivity and also encourages trust in e-commerce ,provides better physical and mental health to individuals and thus leads to growth of human capital.
Challenges with ODR :-
ODR in India is still at it`s nascent stage ,thus despite of its potential strength it faces certain pushback and resistance and thus has a long way to go ,the three main challenges with ODR can be identified as follows :
Cultural challenge and Status-quo bias – Culture can be defines as specific ideas , customs, social behaviour or way of living of people belonging to a particular nation ,society or geographical area , Indian societies are yet not ready to accept ICT wholeheartedly for resolving disputes ,virtual hearings being conducted amidst pandemic also meets resistance and request are being made for moving back to physical hearing when pandemic subsides ,this hesitancy can be explained as status -quo bias ,that is a preference for things as they are in present ,such behaviour for example was witnessed way back when the ATMs were first introduced .
Infrastructural challenge – Challenge of filling up the ICT infrastructure gap lays before the country . Many places specially rural areas and sections of economically depressed populations are deprived of Internet access ,thus measures to build a Internet ecosystem with high speed and reliable electricity supply are much needed .
Regulatory challenge – Significant legal framework for data protection is what our legislative frameworks lacks and in absence of data protection laws privacy of users can be threatened.
The way forward :-
ODR can not flourish in vacuum and needs a facilitating ecosystem and thus requires coordinated and systematic efforts on part of every stakeholder,
National platform – While much is to be done by the private sector for advancement of ODR however since industry is driven by profit motives, and thus has its obvious limitations ,therefore government must make as sufficient budgetary allocation in building and maintaining a national ODR platform to help mainstream ODR process and to build public trust.
Umbrella legislation- Government should consider introducing an umbrella ODR legislation addressing all related issues, such as detailing what kind of matters qualify for the process mandatory pre-litigation mediation for specific disputes, such legislation would be regulating several start-ups providing ODR services.
Govt adoption - Public Sector Undertakings (PSUs) and the Department of government should develop ODR mechanism for inter-governmental disputes in order to popularise the concept and should introduce tax incentives for start-ups looking towards ODR.
Push from govt and judiciary- Initiatives should be taken for ensuring greater access to technology including both physical access to infrastructure as well as increase in level of digital literacy, setting up of legal tech hubs ensuring quality, uniform training standards should be encouraged and if the judiciary too collaborates in this it will be a huge win for dispute resolution.
ODR institutions are definitely an adjunct and supplement to judiciary and is a vital public service and can be said to be the need of the hour ,however we need a fundamental change in mindset for it`s wider adaptability and to come up with a hybrid model of courts combining technology with dispute resolution.
Online Dispute Resolution: Tech-ing justice delivery forward, AK Sikri, https://www.financialexpress.com/opinion/online-dispute-resolution-tech-ing-justice-deliver , June 24,2021.
Pushback Against ODR, Virtual Courts Based On Fear Of Unknown; Information Can Make TheTransition Easier: Justice DY Chandrachud , Mehal Jain , https://elibrary.nlunagpur.ac.in:2054/top-stories/online-dispute-resolution-odr-justice-chandrachud-virtual-hearing-niti-ayog-172444?infinitescroll=1 , June 25,2021.
Feasibility Analysis of Online Dispute Resolution in Developing Countries, María Mercedes Albornoz and Nuria González Martín, https://www.jstor.org/stable/23645500 , June 25,2021.
ODR Handbook, NITI Aayog https://disputeresolution.online/, June 24,2021 .
Every Crisis Presents An Opportunity – It's Time For India To Ramp Up Its ODR Capabilities, Deepika Kinhal,https://elibrary.nlunagpur.ac.in:2054/columns/every-crisis-presents-an-opportunity-its-time-for-india-to-ramp-up-its-odr-capabilities-154196 , June 25,2021.