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ODR – Identifying The Challenges and The Road To Be Taken Post COVID Times


- Ashutosh Anand and Kaustubh Kumar*

Article originally published on 11 July 2022


INTRODUCTION


“Discourage litigation. Persuade your neighbours to compromise whenever you can.”

- Abraham Lincoln



At the end of November 2021, the NITI Aayog released a paper titled “Designing the Future of Dispute Resolution: The ODR Policy Plan for India,” which aims to increase the use of online dispute prevention, management, and resolution. The implementation of the report’s proposals can help India become a global leader in harnessing technology and innovation to provide effective access to justice for all people through Online Dispute Resolution (hereinafter ‘ODR’).


Further, it is pertinent to note that the pandemic resulted in a significant decline in the judicial performance of the Judiciary. To alleviate the same, the Supreme Court took sincere steps and issued an order elucidating the guidelines for online functioning of Courts across the country. Therefore, the pandemic saw the expansion of the justice delivery system through online medium, making the necessity of ODR more relevant in the contemporary times.


The aforementioned developments are sufficient to illustrate prominence and admiration towards the ODR system both during and post COVID times when the excess caseload is anticipated to overburden the Indian Judiciary. In light of the same, there arises a need to analyse the scope of the ODR in India, along with the challenges it may face.

In a rudimentary sense, ODR is considered an indispensable part of the Alternative Dispute Resolution (ADR), which is a well-known mechanism other than litigation that plays a significant role in settling disputes amicably. In recent years, ADR has gained broad recognition among the general public and the legal profession and is now being used to help resolve conflicts alongside the judicial system. Even the Judiciary and the Government have on occasions galore advocated ADR mechanisms to resolve disputes.

Therefore, as an instrument of reducing the burden of litigation from the courts, the analysis of alternate dispute resolution becomes vital in light of the recently developed ODR or Virtual Alternative Dispute Resolution (VADR).


ODR IN INDIA: A PROMISING OUTLOOK


Fortunately, the existing environment and readiness for ODR in India have been quite encouraging. The Judiciary, to illustrate, has been unambiguous in its acceptance of ODR, both in regards to judges actively acknowledging its significance and in terms of judicial decisions laying the groundwork for prospective ODR inclusion (such as the acknowledgment of electronic records as evidence or online arbitration). On the Executive side, the Government Departments and Ministries have been leading the charge. To illustrate, the RBI recently issued an ODR policy for digital payments, the SAMADHAAN portal specifically made for the MSME sector was launched, and the Department of Legal Affairs is gathering information on ODR service providers throughout the country.


Another factor that qualifies India for ODR preparedness [2] is its legislative willingness. Although in a gradual sense, numerous support legislations have bolstered legislative backing for the ADR element of ODR (such as the Code of Civil Procedure, 1908 and the Arbitration and Conciliation Act, 1996) as well as the technological aspect of ODR (such as the Information and Technology Act, 2000 and the Indian Evidence Act, 1972). In 2021, India also enforced the United Nations Convention on International Settlement Agreements Affecting Parties to Mediation. Despite the readiness to incorporate the ODR system in the country, there lie some major challenges ahead. The below-mentioned section in the article will analyse the same.


CHALLENGES AHEAD


The challenges can be broadly summarised in the following heads:


1. Definitional Challenges


The first obstacle to overcome is that of the definition itself. The definition is necessary to make sure that all participants in conversations and debates are speaking about the same subject. As a term, ODR has been used to encompass a wide range of activities ranging from, at the one end, the consumer complaints negotiated straightforwardly between the parties, and at the other end, the arbitration and mediation of commercial disputes, often with lawyer representation, that would otherwise be envisioned to finish up in a court of law.


The prevalent positive laws are unable to answer the discrepancy in the definition of ODR with the variation in its scope according to the context. For instance, what shall the term ‘online’ mean? Will it reflect the substance of the dispute, such that ODR refers to an online dispute resolution facility, or will it refer to the mere medium to resolve the dispute? Is it an online version of alternative dispute resolution (which is well acknowledged as a substitute to court proceedings), or will it integrate the courts and cyber court technologies and become an integral part of the judicial system itself? Consequently, a dire need for unambiguous definition, which may be in a form of legislation, is the need of the hour.


2. Structural Challenges


A strong technical infrastructure across the country is a prerequisite for ODR integration. This involves having access to smartphones, and computers, along with medium to high-bandwidth internet access for at minimum the duration of important hearings. Those with limited access to digital infrastructure are likely to be disadvantaged by the lack of such criteria.


The National Digital Communication Policy, 2018, is currently working to improve digital infrastructure with the goal of providing universal broadband connectivity and facilitating successful participation in the global digital economy.


Besides the digital infrastructure, universal digital literacy is a necessity for ODR. In India, digital literacy varies widely by age, ethnicity, and location. For example, out of 743.19 million internet customers in India, only 32.24 percent (285.97 million subscribers) live in rural areas, which is less than one-third of the urban penetration rate of 99.12 percent (with 457.23 million subscribers). Such a digital divide must be bridged in order for ODR to be adopted on a large basis.


There is a gender, geographic, class, and age barrier in India when it comes to access to technology. Women account for only 1/3 of internet users in India, according to the State of the World’s Children 2017: Children in a digital world.


3. Behavioural Challenges


In India, ODR is still in its infancy. As a result, in addition to strengthening ADR processes that people are already acquainted with, efforts should be made to raise knowledge about ODR. Comfort and trust are created over time with the continued use of technology services, just as they are with any other service. As a result, in addition to raising awareness through regular campaigns, further avenues for continual ODR usage are required.


The concern of lack of trust in ODR is linked to the previous point. This suspicion derives from a variety of sources, ranging from technological scepticism to concerns about the enforceability of ODR outcomes. It is generally difficult to adopt ODR in nations where citizens rely heavily on the courts and when ADR procedures for dispute settlement are underutilised. However, in the future, it will be critical to building capacity in order to deliver high-quality ADR services via mediation and arbitration. This will aid in a quicker transition to ODR.


4. Operational Challenges


Greater technological integration and fewer face-to-face encounters pose significant privacy and confidentiality problems, particularly in dispute resolution. Online impersonation, violation of confidentiality through document circulation and data given through ODR processes, and tampering with digital evidence or digitally transmitted awards/agreements are just a few among innumerable issues. To address these concerns, ODR service providers should establish comprehensive data storage and management systems, as well as use digital signatures and document encryption to enhance privacy.


Another form of operational challenge makes its way in the guise of unpredictability in regards to the conclusion of ODR. To illustrate, there has been uncertainty in reference to enforcing mediation agreements in India for an extended period. In the case of Afcons Infrastructure Ltd v. Cherian Varkey Construction, the Hon’ble Apex Court noted that court-ordered mediation sessions shall be considered to be akin to Lok Adalat, thereby making the settlements gained via such proceedings enforceable under Section 21 of the Legal Services Authorities Act, 1987. Nonetheless, there emerges a significant legal void when it comes to mediation proceedings that are not instituted by the courts. In case of these proceedings, settlements can only be enforced as an agreement between the parties, and any infringement of such agreement will conclude in fresh judicial procedures.


CONCLUSION


As it is already well-known, the Indian courts’ system is infamous for its overburdened courts, lack of judges, and considerable time-taking court proceedings. ADR (hereinafter including ODR) would be an elixir in curing these issues. The executive has also emphasized ADR mechanisms, again and again, to ensure the ‘ease of doing business’ and increase foreign investment in India. Moreover, in 2018, the Department of Justice urged the public to go with other dispute resolution methods, including ODR, rather than litigation.


In the business world, a 2013 survey by PricewaterhouseCoopers on ‘Corporate attitudes and practices towards Arbitration in India’ showed that 91% of the companies that responded to the survey preferred arbitration and not litigation for resolution of disputes. The top three factors stated by them were that ADR provides them confidentiality, speedy resolution, and flexibility. ADR is a cost-efficient, less time-consuming, and easily accessible process, which is gaining momentum nowadays.


Along with the suggestions mentioned above, the government should take care of the legislation by keeping check that they do not interfere with the characteristics of ODR. Further, it must formulate some stringent security measures so that the databases of courts providing the services of ODR may not get hacked or leaked. The government should also develop the necessary infrastructure for the implementation of ODR mechanisms. For example, it should strive to provide Wi-Fi-enabled courts and government offices. ADR contains a huge prospective in dispute settlement, which must be used to the benefit of the people amid and after the COVID-19 pandemic.


Merely descriptive, does not add to the analysis of the article. At the introductory stage, it may be sufficient to proclaim that in general, due to COVID, ODR has gained wider appreciation in India. Additionally, it may be useful to alternatively discuss Re: Guidelines For Court Functioning Through Video Conferencing During COVID-19 Pandemic, the Supreme Court’s guidelines on functioning of Courts in online mode, rather than ODR in UPI. *The Authors are B.A. LL.B. (Hons.)students of National University of Study and Research in Law, Ranchi


Ashutosh Anand

Instagram: @ashutosh_anand01


Kaustubh Kumar

Instagram: @ban.ja.ara


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