Online Dispute Resolution (ODR)- A Curated Version of ADR
Author: Adv. Mehak Vohra
ISSN: 2582-3655
Abstract
The Alternate Dispute Resolution mechanisms in India offered unique advantages to cure the ills of the traditional justice system of the nation but overtime they have perpetuated some negative characteristics of the courtroom. During the last three decades, the emergence of technological developments in the justice system has aimed at the betterment of access to justice around the world. Loading all these pressures the digitization of our legal processes is a much-welcomed step but the procedural laws fail to provide a clear inclusion of the same. The ADR system began to gain popularity on various online forums and gave birth to a revolution of Online Dispute Resolution. This offspring of Alternate resolution mechanism bandaged the ill aspects of primordial justice principles without harming the due process of law. ODR provided greater accessibility and neutrality along with expeditious dispensation of justice to litigants. Today nations are taking shelter in ODR’s dwellings to clear the backlog of cases related not only to minor e-commerce disputes but other serious disputes as well. ODR in India is in the infant stage and needs to gear up for the challenges mushrooming in the access to justice in this modern and digital era. This paper aims to access the concept of ODR, its management and guiding principles for a better understanding.
Introduction
To talk about the magical spell of the Internet in our lives is not interesting anymore. The use of digital technology has surged immensely and has taken over every minute aspect of our lives. Several debates around the globe have flipped the pages of boon and bane qualities of the internet but we have unconditionally surrendered to our dependence on digital technology. What needs more attention today is how we can aim to attain a balance of human touch and technology in areas that require urgent involvement of the latest innovations. The merger of the physical world with the virtual world has brought with it a broad range of novel, complex and valuable transactions, and relationships.[1] There is currently a lack of mechanisms which allow consumers and traders to resolve such disputes through electronic means; this leads to consumer detriment, acts as a barrier, in particular, to cross-border online transactions, and creates an uneven playing field for traders, and thus hampers the overall development of online commerce.[2]
One such area of utmost attention is the justice system in our country. Access to justice has vivid connotations but one opinion that stays along in every perception is the robust costs of getting to the brick and mortar courthouse. It is imperative to reform the archaic justice system to bring a revolution to the common perception of access to justice. The access to justice is subverted by the operative model of the traditional face to face dispute resolution which demands litigant to move to the appropriate court of law where there are fixed functional hours and the long queue of people waiting to meet the judges.[3]Therefore it is bright enough to notice that to even minimally access justice, the requirements of colossal time and finance arises. The introduction of online platform technology will alter the boundaries of how one can access justice. Perhaps the most obvious way to leverage online technology to expand access to justice in the traditional sense is the provision of legal guidance or other services over the internet.[4]The Indian Justice System tends to get complex in many instances. Often this occurrence demands the expansion of virtues of justice apart from the regular triangle of court, bar, and bench. There are various insights to bring change in the justice system in India and the use of technology to our benefit is one of them.
Some institutional designs moderate or reduce inequality to access to justice. Potential solutions have been talked about in recent past including Lok Adalats, Alternate Dispute Resolution, Legal Aid, etc. Notwithstanding the solutions mentioned above, all the changes around us coronate the pressure on the dispute resolution field to adapt in a manner so as to leverage the technology in our judicial services.
Presence of Suitable Alternative- Online Dispute Resolution
Online dispute resolution is the application of emerging digital technology to the practice of dispute resolution. The ADR practitioners around the globe realized that there was an emergence of online communication channels in the commercial arena and that it was having a great impact. Hence, they coined the term ‘Online Dispute Resolution’ to describe and differentiate a new venue for dispute resolution.
ODR offers a simple, efficient, fast and low-cost out-of-court solution to disputes arising from online transactions. Primarily, the term ODR referred to the resolution of conflicts that arose out of e-commerce settings or online social platforms. Gradually its usage has expanded to more traditional offline disputes. The growth and development of ODR could be witnessed in the increased use by various government agencies, international forums, European Union and United Nations. The ODR community has blossomed around five continents with thousands of mediators and developers. It is not a novel corollary of advanced legal justice in many nations but needs to be taken seriously in India. It is a curated version of ADR and its future.
ADR brought with it a new mindset, and so will ODR. ADR involved not only new tools and techniques but different assumptions, principles, and values, and so will ODR. Today, the logic of the field of dispute resolution largely remains as it was in the last quarter of the twentieth century.[5]
Due to the lack of serious alternatives, there is an appeal towards online dispute resolution in online cases. But a drift towards ODR in the traditional disputes can be because of its unique characteristics of accessibility, low cost and the speed of communication through its tools.[6]A a noticeable example is that of eBay that has recognized the recurring disputes in the online transactions and thereafter provided online dispute resolution on its site itself.
Why do we need to draw our attention towards ODR management?
People in this country fear litigation and the long, colossal time and energy involved in the fight for rights suppressed by many serious problems that they face in every phase of their lives. Many of these problems are quite mundane and involve the practicalities of everyday life in such societies.Practitioners have to confront to new challenges that are produced as a consequence various international or national communications and interactions.[7]This creates a requirement of an alternative system apart from the face-to-face model of dispute resolution so that we can move beyond and pay attention to more successful approaches.
According to National Judicial Data Grid[8], the total number of pending cases in India (except the Supreme Court) is 36,819,995. Arbitration has been used in just 2.22% of the total cases disposed of till 2018. The United States Judicial Data suggests a backlog of a total of 454,731 (includes District Court, Courts of Appeals for Federal Circuit and Courts of Appeals).[9]Major online retailers and auction sites in the USA use ODR to settle more than 60 million disputes a year, with 90 percent of financial cases resolved without the engagement of a judge or mediator.[10] Research across nations suggests that the inclusion of new innovations in the legal system via digital technology will make the legal processes more efficient and will help in the reduction of backlog and caseload of the Indian Courts.
Pre-trial hearings and Case Management
A successful ODR Management will also aim to include Pre-Litigation Management which today is as minuscule as a total of 262 (civil and criminal) attempts in India.[11]Even though it may not be feasible to prescribe strict time limits for the disposal of cases, the adoption of better case management strategies can help in the timely dispensation of justice.[12] The scheduling of time and events successfully is a part of the case management system as this offers a controlled occurrence of the suit proceedings. Pre-trial hearing helps in achieving objectives of justice. Undue delays are can be avoided when the scope of the disputes is vested in the real merits of the case. The procedural laws of India do not somehow talk about the provisions of pre-trial hearing but some steps towards the better management and administration of civil disputes is looked upon by the Supreme Court with the help of the Civil Procedure Code.
The success of the ODR management and its outcomes can rely upon the potential effects of the well-recognized principles and practices of ODR. The foundational and guiding principles of online dispute resolution are wisely crafted by various experts around the world. Each principle draws our attention to the ethical and regulatory dimensions of ODR. Even though every such incident where ODR principles are to be applied is unique, these principles very well walk along the lines of flexibility to suit the community it serves. The infusion of technology uncovers a plethora of questions about the ethics of these practices.[13]
There are principles proposed and recommended by the Advisory Committee of the National Centre for Technology and Dispute in July 2009.[14] These principles have been adopted by various nations to orchestrate their versions of ODR practices. Some of these principles which are indispensable part of ODR practice are as follows:
- Accessibility: The ODR services should not pose any restrictions on the right of representation of the different parties who are in dispute. The principles are designed in such a way that they are made available to all classes of litigants without any discrimination. Widest range of jurisdictions are observed to include the marginalized and the ones for whom access to justice is difficult.
In terms of accessibility, issues such as access to internet are not the only barriers and therefore a platter of different languages, impairment facilities and variety of communication channels have to be made available to overcome any other barriers associated with the above features.
- Affordability: It is vital to understand that the ODR system is an alternative to the face-to-face dispute resolution model or the traditional court. The ODR process should be as expeditious as possible by cutting the heavy costs of litigation and winding up the disputes in a reasonable time period. This way the whole process will be affordable for the public at large.
- Transparency: The parties should be clearly made aware of all the information which is essential during the process so that there is informed participation of all the parties and it is the transparent yet confidential outcome. This will ensure the voluntariness of the consent.
- Confidentiality: Reliance on this principle allows the users to be free while expressing their concerns and reasons for the dispute. The mediators are bound to follow rules of confidentiality and make aware of the parties of all the laws that apply, the agreements that are incumbent and the documents that may be needed in the process.[15] The parties and the mediators should press on the presence of digital surveillance to ensure that the information shared is fairly secured.
- Fairness: The inclusion of technology should never undermine and sideline the rule of law. The process has to be followed in a way that the due-process is upheld, without any bias and favours.
- Innovation and Relevance: Online dispute resolution continues to innovate to improve the delivery of dispute resolution services and benefits more fairly, effectively and efficiently in ways that increase peace, trust, and access to justice.[16] The practices should ensure the community requirements for a relevant and rational edge to the whole process.
These ethical practices can be well-argued for increasing the trust among the new users of ODR. The values shared in these principles cover the vulnerabilities of other related fields. These strong values provide a strong foundation for the practitioners to peruse the online methods of resolving disputes. By abiding by these ethical considerations, we can cease any anticipatory refrains that may arise in the users and amplify the attention towards the ODR services.[17]
Conclusion
Since everybody has internet at their disposal to find out any smallest doubt, they primarily resort to online platforms for their legal advice too. Despite the growing number of people searching for online legal advice, the current state of such services is inadequate. The practitioners of law should take this curiosity to their benefit and develop online dispute resolution services to attract confiding interests in their forward approach towards the ability to provide better access to justice. The online platforms of recurring transactions should introduce online dispute resolution services as a part of their websites so that it is more accessible and this will create awareness amongst the masses of the available online forum in case of disputes. The various initiatives taken around the world to build a framework for Online Dispute Resolution will not only support the online transactions but a shift towards more traditional disputes can also be traced. The existing legal practitioners have to be trained to be prepared for the upcoming challenges and growth required for the legal fraternity. The widespread of the upgraded justice venue will bloom the landscape of access to justice in the modern era and achieve the greater trust of the stakeholders.
[1]OrnaRabinovich-Einy& Ethan Katsh, Reshaping Boundaries in an Online Dispute Resolution Environment, IJODR Vol.1 Issue1 (2014)
[2]UNCITRAL Technical Notes on Online Dispute Resolution, Regulation (EU) No 524/2013 of The European Parliament and of The Council of 21 May 2013.
[3]PrescottJames J., Improving Access to Justice in State Courts with Platform Technology, Vand. L. Rev.70 (2017)
[4] Margaret Hagan, The User Experience of the Internet as a Legal Help Service: Defining Standards for the Next Generation of User-Friendly Online Legal Services, 20 VA. J.L. & TECH.(2016)
[5]Supra at 1.
[6]OrnaRabinovich-Einy, Balancing the Scales: The Ford-Firestone Case, The Internet and The Future Dispute Resolution Landscape, Yale Journal of Law & Technology (2003-2004)
[7]Daniel Rainey, Third-Party Ethics in the Age of the Fourth Party, IJODRVol.1 Issue1 (2014)
[8]Welcome to NJDG – National Judicial Data Grid (Apr.1, 2020, 3.31 PM), https://njdg.ecourts.gov.in/njdgnew/index.php.
[9]Judicial Facts and Figures 2018 | United States Courts(Apr.1, 2020, 4.30 PM), https://www.uscourts.gov/statistics-reports/judicial-facts-and-figures-2018.
[10]Colin Rule, Technology and the Future of Dispute Resolution (Apr.4, 2020, 10.40 AM), http://law.scu.edu/wp-content/uploads/Rule-Technology-and-the-Future-of-Dispute-Resolution-copy.pdf.
[12]National Mission of Justice Delivery and Legal Reforms (March 29, 2020, 02.16 PM), https://doj.gov.in/national-mission-justice-delivery-and-legal-reforms.
[13]Leah Wing, Ethical Principles for Online Dispute Resolution, IJODR 2016 (3)
[14]Online Dispute ResolutionStandards of Practice (Apr. 3, 2020, 5.45 PM) www.odr.info.
[15]Supra at 7.
[16]Supra at 13.
[17]Supra at 13.