Nov 20,2020 | 5 min read

"Is Online Dispute Resolution Viable?" By Kawaljit Singh Bhatia

INTRODUCTION 

The Online Dispute Resolution mechanism initially focused only on supplying us with the online dispute resolution forum, but where the real mediators were people who mediated conflicts and disputes. However, the idea of ODR was a modern one, but the concept and execution of it were very similar to the conventional conflict resolution methods.

The idea of Online Dispute Resolution, however, outgrew its original model and was turned into a mechanism that addresses all forms of disputes occurring in the society, through technology or online applications. The role of the ODR was changed to such a system, which later also merged dispute resolution with the scope of dispute prevention.

All well understand cyberspace's virtual universe, and the internet is the greatest way of connectivity worldwide. In such a world, the ODR is the only alternative that offers a viable solution, contrary to traditional methods of litigation. The parties or persons involved in this ODR process must send the necessary or approximate sum electronically promised to be kept confidential.

At the request of an impartial panel of judges, the independent regulations and the rules of the ODR service provider can be revised or enforced by the parties to resolve their disputes. Besides, there is also no permanent mechanism or recommended form for disclosing the number of people actually using the ODR. Similarly, there are no system records or lists that provide the online dispute reporting process.

PROCEDURE OF THE ODR

The ODR protocol includes e-documents where parties may use encryption and electrical signatures to ensure the confidentiality and integrity of all documents and information of payment transactions. Generally, a formal and transparent method of dispute resolution is desired by persons or parties to the case. This mechanism is also transparent and straightforward, with organisations such as WIPO, ICC and many others developing online dispute resolution provisions by mediation and other methods.

If the respondent decides to take part in the process, a comprehensive collection of responses must be sent. Whereas, to get compensation, the complainant who files the case seeks remedies. Oral hearings via video conferencing or telephone contact may or may not involve the dispute resolution process. There could be an alternative where the conflict is settled by automated software, and there is no need to designate a third party.

The presence of advanced technology, user-friendly interface, qualified professionals and, above all, the protection of privacy and information security of the disputants are the most important components needed for the implementation of the ODR. It aims to draw more users and services over time through the concepts of infrastructure, affordability, accessibility, knowledge, confidence and convenience. Unlike the other ADR procedures, ODR tried to present the 'real-world environment' as a guide.

INDIAN JURISPRUDENCE ON ODR

The Indian legal system is endorsed by Section 89 of the Code of Civil Procedure, 1908, of the ODR process, which encourages the settlement of disputes between parties and alternate forms of doing so. In comparison, Section 5 of the Information Technology Act 2000 requires the use of electronic signatures and e-records to be legally recognised.

Rules 1A to 1C of Order10, when called for resolution by the parties, were added that allowed the courts to agree with one or more alternative dispute resolution ( ADR) strategies for settlements. The Section 7(3) of the Arbitration Act states that the arrangement must be in writing, so if both parties agree that the ODR service provider will settle the arbitration conflict, it will be found legitimate in court.

In the case of the State of Maharashtra vs Dr Praful B. Desai, the Supreme Court held that, for the testimony of the witness, video conferencing would be an appropriate form and source of recording evidence. In the case, Grid Corporation of Orissa Ltd. vs AES Corporation, the Supreme Court held that if a good and efficient consultation may be done by electronic resources and modes such as video conferencing, etc., then both parties will not be needed to sit together at the same venue, unless this is the case where the provision of the law or such ruling contract may be, as a ruling contract.

Therefore, both the legal structure and the precedents laid down by the Supreme Court of India encourage the use of the online community, that is, the dispute resolution technology. In reality, they advocate the use of ODR (Online Dispute Resolution) processes for such situations. Thus, as opposed to conventional litigation approaches, this is a more open and time-efficient source.

CHALLENGES AHEAD 

The parties' paramount concerns regarding confidentiality and data security continue to grow. And, not all people are technologically prepared, this can result in a major obstacle to the ODR processes' development. These points can be kept by opponents, contrary to the ODR aspect. The problem is also the use of language on the websites of the ODR. Most ODR service platforms currently use English, but it can be difficult for non-speakers to convey specific details and prevent miscommunication.

The bridge of contact between the parties and the mediator may be another obstacle. The ODR will make it simple for mediators with text-based mediation and arbitration, but it takes a lot of time to access. For the ODR, another topic of concern is the enforceability of these online arbitration proceedings and their performance. The authority of these ODR providers is not set and, thus, individuals challenge the confidentiality and security of the information they are entrusted with.

The digital divide between the various parts of people in the society can not be removed, even by the most well-operated and highly developed ODR system. The ODR networks, however, provide us with several possibilities that aim to increase the degree of access to justice. But the high needs of the users of justice will still be there, with minimal interaction power, no matter what type of justice they choose.

VIABILITY OF ODR

In a limited way, India has limited its support for the ODR process. As regards e-commerce, online purchases and online shopping conflicts, India is increasingly moving to embrace the possibility of the ODR as a method of resolution. The applicability and dimension of the Internet have evolved since the beginning of the 21st century, with rapidly changing findings at a high pace. When it comes to a fast and efficient way, ODR has a long-lasting impact on the disposal of dispute cases.

Various new subject areas are being added to the ODR phase, such as labour law and telecommunications law, to expand its breadth of applicability. The ODR process promises to allow ADR to become quicker, more successful and less cost-effective. It is mandatory that the legislation relating to alternative dispute resolution strategies be referred to examine the legal grounds in the cases in full. However, if any non-binding ODR is then successful, it results in a successful binding of a settlement contract between the parties that would be enforceable in the court of law.

Thus, ODR will soon become the way of arbitration for the entire world and the necessity for every disputant. Concerning India, the growth of technology and the trends of arbitration, have rapidly grown since the past few years.

CONCLUSION 

To make the ODR process more attractive to general individuals, it is important to first create a link via the online community with individuals. It changes the usual way of conflict settlement for them by making them aware of the benefits and applications of the ODR process. The online community will assist the ODR, change its direction and solve its limitations by including information communication technology. It may be used in situations where the payment form involves a default or damages in the dispute.

It is important to explain to the general public all the advantages of ODR. Overall, the ODR is willing, in a cost-effective way, to settle real conflicts. This saves more time for a better settlement procedure than the conventional dispute redress system, which is now equipped with online technology. The tools for defining choices and interests, via ODR, now operate more quickly and conveniently. This approach is not limited to online conflicts only, but also assists mediators and arbitrators by offering an automated programme for them.

 

The moral principle 'Justice deferred is justice denied' suggests that it is comparable to justice not served at all if justice is administered in more time then. The delay in the legal process has high pitfall costs. It results in the lack of confidence and trust of the people in the Indian judicial system's administration of justice. Thus, in settling conflicts efficiently, these alternative conflict resolution approaches are quick and much better than the conventional rigid methods.


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ABOUT THE AUTHOR


Kawaljit Singh Bhatia

Kawaljit Singh Bhatia is an Advocate on Record in the Supreme Court of India and appears regularly in the Supreme Court of India, Delhi High Court and various Courts and Tribunals in Delhi. Singh specializes in the field of Arbitration, Commercial Disputes, Consumer Disputes, Telecom & Broadcasting Laws, etc. Singh has, in the past, worked with top tier firms like Cyril Amarchand Mangaldas and Trilegal. Singh is an alumni of Symbiosis Law School, Pune - batch of 2009.

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