1.1 Hon. Arthur M. Monty Ahalt (ret.) defined Online Dispute Resolution (ODR) as, "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"1. Essentially, it is the process of dispute resolution on a digital platform using digital technology (video conferences). It is an amalgamation of advancing technology with alternate dispute resolution mechanisms (ADR) such as mediation, conciliation and arbitration, for the purpose of resolving conflicts, particularly in small and medium value cases. Moreover, considering the times of pandemic that we are living in today, the option of ODR has just become more compelling, safe and cost efficient.
Characteristics of ODR2
1.1 Voluntary: Parties are allowed to choose to participate in ODR as a dispute resolution mechanism; however, they may pursue their claim through a different forum too. Similarly, parties are at a liberty to withdraw at any time as they desire.
1.2 Informal: The tone and set up of the entire proceeding is informal and casual as against ADR proceedings such as mediation or arbitration.
1.3 Confidential: Unless otherwise agreed by the parties, the entire process of ODR is strictly confidential.
Advantages of ODR
1.1 ODR has a plethora of advantages over traditional courts:
- It leads to efficient time management by cancelling out the time required for travelling. It also substantially reduces costs as a result.
- It ensures speedy access to justice
- It has a more informal and casual set up.
- It can be accessed from anywhere in the world without any geographical limitation acting as a barrier.
- The asynchronous internet communications have advantage of being edited in contrast to impulsive responses that often can take place in real time face-to-face mediation discussions.3
Disadvantages of ODR
1.1 Most significant challenges faced by ODR in its way of growth in India are lack of human interaction and communication, lack of literacy, inadequate confidentiality and secrecy of proceedings, lack of trust and confidence, limited range of disputes, cultural, educational and language barriers, negative mindset of lawyers and the most crucial and pivotal challenge being the admissibility of ODR4.
Scope of ODR in India
v.1 The applicability of ODR in a developing nation like India is still in a primitive stage. However, owing to the pandemic outbreak, ODR is starting to acquire increased prominence. On a conjoint reading ofthe provisions of the Indian Evidence Act, 1872, with the Arbitration and Conciliation Act, 1996 and the Information Technology Act, 2000, it is evident that the Indian laws provide for legality and technical viability of the ODR mechanisms. Additionally, common issues in ADR pertaining to jurisdiction and other issues pertaining to geographical limitation seem to be eliminated along with ensuring automated administrative tasks, promotion of eco-friendly processes and improved productivity of professionals.
v.2 That being said, the three branches of governance have been taking initiatives to make our legal and judicial system more technology-friendly, in order to ensure speedy delivery even during the times of a crisis.
v.3 Recently, the Supreme Court of India in a suomotu writ petition captioned 'Expeditious trial of cases under Section 138 of N. I. Act, 1881', took note of the observations in MetersandInstruments Private Limited &Anr. vs. Kanchan Mehta5, that
"Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There appears to be need to consider categories of cases which can be partly or entirely concluded "online" without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated."
v.4 In times of Digital India, when there has been rampant advancement of technology not in urban and sub-urban cities and also in remote villages, it is fair to say that with effective use of such technology, access to justice and equity can be ensured and brought to each and every Indian irrespective of their geographical limitation.
v.5 It is noteworthy that on an average every judge in India is allocated 1,350 cases, whereas his counterpart in the US is required to deal with only 388 cases6. Therefore, promotion and enhancement of a technology driven dispute resolution mechanism not only seems promising for the lawyers but would also lead to substantial easing of courts' burden as well as improving the efficiency of the Indian legal ecosystem.
v.6 Lastly, ODR also entails environmental impact – 11 billion sheets of paper are used every year in Indian courts. The green cost of this usage is 1.3 million trees and 109 billion litres of water every single year7. A swift yet smooth transition to digital platform would also benefit the environment, make our judicial and extra judicial system more eco-friendly, thereby, curbing climate change and many more issues.
ODR involves various methods of dispute resolution including e-Negotiation, e-Conciliation, e- Mediation, e-Arbitration and hybrid mechanisms such as Medola, Mini trial, Med Arb, Fast track arbitration, Neutral Listener Agreement, Rent a Judge, Concilio-Arbitration etc. It may adopt either adjudicatory or non adjudicatory process to have its decision binding or non-binding upon parties. The need of the hour is to maximize the reach of access to justice delivery system to all the sections of the society. A strong infrastructure for easy access and for ensuring that justice must be delivered in minimal time and in adequate manner by increasing literacy rate, reducing language and cultural barriers, and easy access to e-courts might be the stepping stone towards achievement of the same. Thus, the step to advance ODR is a key to facilitate global harmony and to encourage international relationship in cross-border disputes.
1. Hon. Arthur M. Monty Ahalt (ret.), What You Should Know About Online Dispute Resolution, available at: https://www.virtualcourthouse.com/index.cfm/feature/1_7/what-you-should-know-about-online-disputeresolution.cfm , accessed on 25.06.2020
2. https://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/10.html , accessed on 25.06.2020
3. Jim Melamed, The Internet and Divorce Mediation, available at: http://www.mediate.com/articles/melamed9.cfm , Accessed on 25.06.2020
5. 2017 TaxPub (CL) 0840 (SC)
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