By Priyanka ~ Baba Farid Law College Faridkot
From the very commencement of 2020, we are witnessing the looming effect of the COVID- 19 pandemic. That is being the most carping period in history due to which every country in the world suffering from economic, social and health crisis. All the work under factories and industries has been on hold. Due to which People are migrating from city to city, state to state and even country to country. Amidst all, the Indian Judiciary who was already passing through a slow momentum in adjudication of the disputes is now facing more hardship in adjudicating the same. Because all the courts are shut, the working and procedure of the court have been halted. At that crucial time, the Apex court of the country is embracing the ways for resolving the disputes through the medium of video conferencing and establishments of e-courts.
These steps of the court are necessitated, understanding the magnitude of the issue but before the arrival of this predicament. If we take a glance towards the pendency of cases in India, the sources of The National Judicial Data Grid reveals that there are about 32 million pending cases till date.
On a related note, the modern mechanism of dispute resolution, which is known as online dispute resolution (ODR) is emerging as the most feasible and practical solution in resolving the dispute. This came into the picture in the 20th century. However, it never got much attention in India. But nowadays due to this conundrum which prohibits ‘people to people contact’ has increased the reliance of people on ODR which is now being promoted by Government as well.
Supreme court of India has also emphasized the need for ODR, by stating “Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There appears to need to consider categories of cases which can be partly or entirely concluded “online” without the physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated.”
In addition to it, The Vice President of India while addressing National Conference on ‘Online Dispute Resolution Mechanism’ has stressed that Online Dispute Resolution Mechanism is a laudable initiative to fast-track dispute resolution and it shall go a long way in resolving disputes, attracting more foreign investment by projecting India as an investor-friendly country and strengthen the economy.
Background of ODR in India
It was back in the 1980s when the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985 and the UNCITRAL Conciliation Rules in 1980. United Nations, General Assembly has recommended the use of the said Model Law and Rules in cases where a dispute pertaining to international commercial relations and suggested to adopt a conciliation method for amicable settlement of the conflict.
India introduced alternative dispute resolution in the Arbitration and Conciliation Act, 1996 by relying on the principles of the UNCITRAL model and rule. The act was further amended in the year 2015. It provides for alternative dispute resolution mechanisms like arbitration, conciliations etc. for national as well as international disputes. Significant Measures have been taken by the Ministry of Law and Justice to introduce Online Dispute Resolution through mediation, arbitration, and conciliation. Nowadays, more than traditional litigation, the various mechanisms of ADR are now supported over the internet platform, thus promoting ODR all together.
Meaning of ODR
Online dispute resolution is a mechanism which exercises modern technology such as emailing, videoconferencing or teleconferencing and follows methods and features of Alternative dispute resolution (ADR) for resolving disputes between the parties. It is analogous to ADR except for the fact that it entirely runs online that resolve its conflict without indulging in any litigation process. ODR involves a variety of methods for dispute resolution including Arbitration, Negotiation, Conciliation, Mediation,and hybrid mechanisms including last offer Mini trial, Med Arb and Neutral Evaluation.
There are two approaches which are being adopted by the disputants under ODR:
- Adjudicatory process, which uses arbitration, where the award passed by the arbitrator is binding on both parties, and
- Non-adjudicatory process, which focuses on mediation and negotiation, where the primary focus is to arrive at a settlement of the disputes between the parties without deciding on the merits of the matter.
Presently, the National Internet Exchange of India uses only the adjudicatory approach in India.
Under this, the dispute is resolved by the third party called as Arbitrator/Mediator and the Technology used often referred to as Fourth party. Further, it has neither defined under any legislation nor there is any specific enactment towards ODR. Thus, interpretation of the Arbitration and Conciliation Act, 1996, Information Technology Act, 2000, and Indian Evidence Act, 1872 makes ODR legally enforceable. Arbitration and Conciliation (Amendment) Act, 2015, grants legal recognition to Arbitration Agreement which is entered into by communication through electronic means, which is a positive step towards the promotion of ODR.
ODR resolves a variety of disputes which includes the traditional disputes as well as e- disputes. Traditional disputes involve civil, commercial, industrial, banking disputes, construction or partnership disputes, intellectual property infringements, defamation, unfair trade practices, protect liability and insurance-related disputes. In contrast, e-dispute involves dispute relates to the internet, such as domain name, privacy, e-commerce, cyber conflicts etc.
Although, criminal law or constitutional law issues kept out of the ambit of ODR, which mainly falls under the domain of litigation process.
The significant players in ODR
The disputes could arise between individuals or business entities or consumers or ADR institutions or involve the government of a particular State.
Business community favors ODR because it is private, fast and inexpensive. It also encourages consumer trust. For consumer organizations, ODR enforces consumer rights. Governments see ODR as a tool to provide access to justice that courts are not yet equipped to provide, decrease court congestion and further the e-commerce economy. ADR institutions see ODR as an opportunity to gain a competitive edge.
Procedure of ODR
In India, there is two types of procedures for alternative dispute resolution; ad-hoc or institutional. Online dispute resolution is based on the institutional design of alternative dispute resolution in which profusion of guidelines are established, which aids in guiding parties, arbitrators/mediators and the proceeding of the dispute.
Additionally, the ODR service provider has the right to independently apply a set of rules to resolve a dispute between the parties. Moreover, parties also have a right to request for appointing an independent panel of judges for adjudicating their dispute in accord with the guidelines provided under the institutional method.
Under ODR, at first instance, one of the parties to a dispute should approach the ODR mechanism and intimidate the same to the other party. If both parties agree upon governing by arbitration rules, then an arbitrator is appointed, and time-stamped intimations are sent to the parties on their respective emails, WhatsApp and SMS. Here, the parties (do not meet physically but communicate electronically via video conferencing and the decision of the case usually comes within the period of 20-25 days.
Advantages of ODR
ODR is an easily accessible, transparent and faster option for corporate entities, e-commerce or banking stakeholders who works online. They advocated that this lockdown period is right the time for ODR to gain acceptance as an easy mechanism to resolve the dispute.
Following are the considerable advantages of ODR:
- One of the most leading advantages of ODR is that it is hassle-free and promotes speedy
disposal of its matter. It doesn’t take much time to dispose of dispute between the parties.
- This is convenient for both the client as well as adjudicator.
- It prevents the client from unnecessary cost on travelling and on documentations. Thus, it is cost-saving too.
- It easily stores the digital data of the client and keeps the data for a longer period.
- It prevents the client from geographical and territorial barriers.
- It minimizes the chances of engaging in litigation for years.
- It involves the higher scope of settlement between the parties because arbitrator/mediator is mostly the experts dealing with the particular field of dispute.
- It manages the cordial relations between the parties even after the dispute settled as the procedure goes through mediation, conciliation, arbitration or negotiation.
- The procedure under ODR is more flexible than the procedure followed in a court of law.
Disadvantages of ODR
If there are advantages of ODR, then there are some disadvantages too which are posing a challenge, especially before the Indian Judicial system.
Following are the major drawbacks of ODR:
- First of all, it requires mass awareness among people. Because hardly people know about this new mechanism except for legal fraternities and people who are associated with law and related process.
- It also requires human resources training in technology and a sufficient number of qualified personnel to counsel their clients and work on the mechanism as many advocates and judges are not well versed with modern technology.
- It also leads to miscommunication due to lack of interaction and makes things difficult for the lawyer to evaluate the credibility of the party and their witnesses.
- One of the major conflicts is that significant portion of lawyers do not support ODR because they considered it as a threat to the litigation process. Because it is not easy for them to switch themselves from traditional mechanism to modern mechanism.
- Further, it is not suitable for every kind of dispute as all disputes can’t be adjudicated virtually.
- Ultimately, all of its work performed on the Internet, it increases the risks of misuse and leakage of personal and vital data & information of parties. Besides this, it does not ensure any protection from hackers, the only protection of such procedure lies with the application which is being used for the online platform.
It can be concluded that ODR is taking new zenith in the Indian Judiciary. This being criticized on running completely on technology but the pan of advantages of ODR is more massive than its disadvantages. Because it is the most affordable, transparent, time- saving, free from geographical and jurisdictional barriers, neutral, effective and economical solution to fix the problem of a large scale of cases in India which is more friendly with India’s Judicial framework, thus, it can rightly be said that ODR is the hope as well as future of Judiciary of India which can free India from overburdening of cases and surely this is the advent of New Era in Judiciary.
-  Meters and Instruments Private Limited and Anr. v. Kanchan Mehta
-  Niti Ayog, Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business, see ~ https://pib.gov.in/PressReleasePage.aspx?PRID=1644465#:~:text=to%20dispute%20resolution.-,’,at%20the%20pre%2Dlitigation%20stage. (visited on 21/09/2020)
-  Arbitration and Conciliation Act, 1966 see ~ http://legislative.gov.in/sites/default/files/A1996-26.pdf (visited on 21/09/2020)
-  Ms. Zabeen Motorwala, Arbitration and Conciliation (Amendment) Act 2015 – Key changes and circumtances leading to the amendment, Bharati Law Review, April – June, 2016, see ~ http://docs.manupatra.in/newsline/articles/Upload/5A0EB862-FAAC-492E-9457-12119D50FD2A.pdf (visited on 21/09/2020)