Authors – Akhil Surya and Reet Balmiki Year of study – Second year Institutional affiliation – NALSAR University of Law, Hyderabad
The Indian dispute resolution system is ever-evolving with new developments and challenges. With overburdened courts and a crippling pandemic, ODR comes in like a fresh breeze. ODR provides timely, cheap, and easily accessible justice. However, ODR is faced with several prospects and challenges at a very early stage.
This article introduces the concept and practice of ODR in times of a pandemic, considering its background and recent developments. It further explains and analyses ODR’s potential in transforming the Indian dispute resolution system. With statistical and substantial data from various reports by the Indian government and institutions, the article explains the benefits of adopting ODR. Lastly, it discusses the challenges to provide a comprehensive understanding and includes a list of recommendations. The article offers an exhaustive and unique knowledge of ODR in the Indian context amid the pandemic.
Keywords: Dispute resolution methods, online dispute resolution, e-commerce, digital india, alternative dispute resolution, and e-adr.
Almost a year into the pandemic, after all our experiences, the world is still filled with uncertainty and is in dire need of revival. With technology, we have found ways to keep up with unpredictability and to improve in several aspects. The importance and impact of technology and the internet are well-known. However, the digitalized world has its share of problems.
Interestingly, the internet and technology have been effective in solving these problems. With growing uncertainty about the functioning of the judiciary, Alternative Dispute Resolution (ADR) methods are the need of the hour. Information and Communication Tools (ICT) and other technologies mark the advent of Online Dispute Resolution (ODR). In a situation where there are 4 crores pending cases and restrictions on physical gatherings, ODR comes in with its unique radiance. However, it is essential to understand its potency and the adjustments it demands amid the current pandemic for its proper adoption in the practical world.
This article explains the concept of ODR, mentions its benefits, exposes the shortcomings and challenges, and recommends steps for the way ahead, specifically in the Indian context.
ODR as a concept and a practice is still in its nascent stage, perhaps, more so in the Indian context. Though ODR has its genesis in ADR mechanisms, it offers an encouraging range of technology-assisted processes beyond conventional ADR techniques. ODR techniques are confidential, voluntary, and largely informal. Dispute resolution with these techniques is commonly referred to as “outside court” settlements. ODR can resolve various kinds of disputes arising offline or online using different technologies and models.
The origins of ODR can be traced back to 1996 by eBay, an e-commerce platform in the US, when it started an online feedback rating system. The impact of the COVID-19 pandemic has mainly induced the recent evolutions and adaptations in it.
ODR refers to using ICT tools for substantial communication by the concerned parties to resolve disputes partially or entirely online, primarily arbitration, conciliation, mediation, and negotiation methods. Information and communication tools include equipment like webcam, scanner and methods like video-conferencing and e-mail. These tools usually collect, send and use the data. Artificial Intelligence and Machine Learning, being very useful to generate amicable solutions and resolve disputes quickly, offer broader scope and meaning to the existing understandings. AI/ML technology facilitates, assists and produces solutions with data available through automating human intelligence. While these tools advance ODR significantly, there remain concerns about data security, confidentiality, and lack of legislative provisions in this regard. Terms like iDR and e-ADR are used interchangeably with ODR. Whilst the commonly agreed definition is restricted to e-ADR, a few authors opine that ODR should also accommodate formal courts’ ventures in using ICT tools where courts have conducted hearings on video conferencing. The vast scope is evident from the various definitions.
WHY HAS ODR CONSIDERED THE FUTURE OF DISPUTE RESOLUTION?
The benefits of adopting ODR
ODR, like ADR, provides efficient alternative means to court-delivered justice. They offer interactive platforms to arrive at a resolution quickly and economically. ODR can solve petty and frequent disputes arising out of everyday e-commerce transactions. It can also host dispute resolution and dispute avoidance between businesses regarding complex economic and legal issues. This comes as a fresh breath for both the courts and the deficient legislative frameworks for dealing with online disputes. By providing solutions and suggestions to avoid a confrontation, ODR extends to avoiding the dispute and promotes legal health.
The usage of ICT technology and tech-assisted resolving mechanisms in ODR make it distinct from traditional ADR. ODR makes the process easily accessible, affordable, less demanding and convenient for the parties. As communication is asynchronous and online, it reduces delays. Being a process where the parties oversee their dispute, the resolution method is an open decision to be made by the parties, and they can opt out at any time. The non-adversarial and confidential nature, which attracts parties concerned about their reputation, makes this a win-win situation. This departure from the traditional courts and ADR comes in handy as a quick rescue for businesses, consumers, and individuals in a pandemic situation.
The impact of the pandemic on the use of ODR
While mandating physical distance between people, the pandemic has integrated all lives with the internet. Due to the rapid rise in e-commerce transactions and the disputes arising thereof, ODR, like always, has provided timely justice to the people in their homes with a simple query or complaint made online or the user interface.
Physical restrictions also meant halting of usual ADR systems. ODR has eased this uneasy suffocation by providing alternative solutions online. Institutions and businesses which would usually resort to ADR have employed ODR to resolve their disputes in the pandemic. MSME’s and small businesses have taken their arguments to ODR companies. Parties to civil disputes like property or divorce cases have chosen ODR for a timelier outcome. The necessities created by the pandemic further highlight the already known benefits of ODR. The need for better ODR systems is palpable. Indian courts, as observed by Justice D.Y. Chandrachud, will be crucially affected because of the emergence of ODR before a full-scale transformation.
THE ROLE OF ODR IN TRANSFORMING THE JUDICIAL SYSTEM
ODR has the potential to transform the entire judicial system if it can overcome its shortcomings. Unlike a court, ODR gives the liberty to choose a resolution method to the parties themselves. The parties are also free to fix their meeting dates, other matters regarding schedule and opt-out from the process if needed. Apart from these operational advantages common to ODR-ADR, ODR offers substantial benefits over the courts that can transform the judicial paradigm in a pandemic ridden world.
This transformation will also democratize access to justice efficiently and expeditiously. It assists in diverting the existing caseload and reduces the number of formal complaints in courts by improving overall legal awareness and innovation to serve the ends of justice. If the situation is utilized rightly, mandating court-annexed ODR before an actual hearing can create a healthy relationship between the judiciary and ODR techniques. While ODR can supplement and assist the functioning of courts, it is essential to note that it cannot supplant or substitute all dispute resolution methods and courts.
CHALLENGES AND RECOMMENDATIONS
While advantages are plenty, there are significant hurdles too for the effective implementation and functioning of this budding system in India. ODR requires the parties to know its methods and presupposes access to the internet and other online resources. As society and businesses enter the “new normal”, the reliance on digital resources will only increase. In India, where over 134 million people live in poverty and nearly 310 million are illiterate, citizens lack the requisite resources and digital literacy to access the ODR system, given its online mode of mechanism.
The pandemic has further worsened this situation by pushing millions into poverty. This deepens the digital gap and creates a divide in a critical condition. These reasons extend the divide to several existing socio-economic complications. A similar range exists among small businesses and enterprises that are still trying to cope with the pandemic. Well-established companies are better off and can also misuse their power. For instance, a comparatively bigger company can have the ability to induce the process and influence it in a way to obtain an outcome in their favour. While small companies are still trying to cope with the pandemic, the larger and technologically and economically advanced companies might create an unequal footing. This restricts the citizens’ and businesses’ access to easy legal aid guaranteed by ODR.
In addition to the socio-economic challenges, several operational challenges exist that hinder ODR’s growth and limit its prospects in India. There remain several concerns about the management of data, data privacy, preserving the confidentiality of the proceedings and ensuring ethical use of technology. Further, India lacks legal professionals trained to conduct resolutions online. Though the vocal support from the government and judges is plausible, the absence of legislation that comprehensively governs ODR’s functioning and agreements is worrisome.
While myriad challenges have been identified, the future of ODR to revolutionize dispute resolution in India is still propitious. However, to overcome the structural and operational difficulties in the smooth functioning of ODR in India, certain provisions must be made keeping in mind the prerequisites of the digitized ODR system. A list of recommendations has been made in this regard.
- Increase access to digital infrastructure
A precondition to enjoying the benefits of speedy redressal through ODR is widespread access to digital infrastructure and other resources. Along with access to technology and its tools, knowledge of the methods to access and utilize these resources is also essential. Therefore, there is a need for physical access to digital tools and digital literacy to combat the digital divide across all classes and communities.
- Formulate extensive regulatory frameworks
The increasing digitization of the world has led several new players to the digital ecosystem. With this, there is an urgent need for a regulatory framework protecting the rights of the end-users and governing the transition of the mechanism of dispute resolution to an online mode. However, the framework must not stifle its growth and innovation. Therefore, a balanced framework that regulates the ODR practices while leaving room for growth and innovation is the need of the hour.
- Spread awareness and build confidence in ODR
To ensure active adoption of ODR practices, increased trust and confidence in ODR processes from the end-users is required. This is possible through the spread of awareness about ADR and ODR as accepted dispute resolution practices using coordinated efforts by the stakeholders.
- Increase capacity for better integration
With abundant access to technology and resources, adequate professionals and service providers are essential to ensure proper integration and expansion of ODR in India. To make this a reality, several training programmes must be introduced to understand the challenges faced in the online ADR mode and ways to tackle them.
It is high time for a nation like India to begin exploiting the advancement influenced by the pandemic. India needs proper legal training and awareness among its people and companies, comprehensive legislation and visible support from the governmental institutions to make the best use of this unprecedented situation. India can expand its economy and recover economic losses with proper attention and action towards ODR.
Justice is a service and not a place. The world sees endless possibilities in ODR. Defining ODR exhaustively semantically constrains it and inhibits its evolution. Technological innovation and human intellect have done wonders in the past. The pandemic situation is an acid test for our long-appreciated efforts. Proper understanding of the existing challenges reveals the actual extent of enhancement. Success becomes real when it is achieved in challenging situations. India needs to harness the evolutions that have sprung. The recent developments and innovations herald a new epoch in the history of the digital world and dispute resolution in India. India has its gates open for advancement in ODR for ways upward and onward to become an evolutionary leap in the Indian dispute resolution system.