Peace cannot be kept by force, it can only be achieved by mutual understanding -Albert Einstein

Introduction
Digital technology has brought major transformation in the arena of dispute resolution. ODR is that branch of dispute resolution which uses technology to facilitate or resolve the dispute between parties. In India, ODR is at infancy stage, but yes gradually emerging as a promising and faster option.

It broadly has two models:

1. Opt-In model : In this type of structure, Mediation is voluntary.
2. Opt-Out model : In this type of structure, Mediation is mandatory atleast for one session. After that parties can opt for any other mode.

Need Of ODR When We Already Have ADR Mechanism

There was enormous pendency of Litigation cases in India, so to deal with that problem, ADR was brought in by way of Section 89 CPC and more explicitly legal sanctity was given to Arbitration by enactment of Arbitration and Conciliation Act 1996.

Several amendments were made to the act subsequently and finally legal recognition was granted to arbitration by electronic means by amending section 7 of the act, which bolsters the concept of ODR. But current ADR laws are not adequate to deal with disputes related to online transactions and meeting customer expectations. It is a famous saying  Justice delayed, Justice denied. If we succeed in implementing this ODR mechanism effectively it can rebuff the ill effects of delayed justice in our country.

Due to tremendous development in ICT, numerous online cross-border transactions and e-commerce activities are happening on a large scale, which obviously triggers e-disputes such as domain name, hacking, privacy invasion, data theft, online frauds. So there is a dire need to devise an online mediation platform for small and medium value cases.

In India, organizations like Perry4law, Nixi.in, Presolv360 etc are proficiently working in the area of ODR. Infact SAMA[1] organization is actively working towards implementation of ODR Mechanism. In light of Covid-19 and Supreme Court’s directions to promote technology in Indian Justice System, SAMA is providing technical support to State Legal Services Authorities (SLSAs) across the country to hold online Lok Adalats.

Recently, the NITI Aayog in association with Agami and Omidyar Network India has conducted a virtual meeting with key stakeholders, legal experts and eminent Supreme Court Judges to discuss ways to advance ODR practices in India and its effective implementation. The most brilliant suggestions came from our respectable judges.

Justice DY Chandrachud said that artificial intelligence and blockchain have the potential to unlock disputes. The government has a pool of data on the National Judicial Data Grid, which can be analyzed.[2]

Justice Indu Malhotra spoke of the nuanced specifics that could be considered for scaling ODR. Making ODR or ADR voluntary may defeat the purpose. It should be made mandatory for specified categories, and it should cover about three sessions so that parties don’t feel that it’s a mere formality. [3]

The Law Secretary, Anoop Kumar Mendiratta, noted that private ODR and ADR providers need to be complemented to ensure that online resolution can reach different industries, locations, and parts of the country and also support public institutions in a big way.[4]

In future we will have both offline courts, online courts, and ODR. The government must reimagine the whole process of justice delivery to work in the new system, and this will require good data.

Advantages Of ODR

• It is a faster option of dispute resolution
• It is flexible and informal
• Easy to access, anywhere/anytime. Physical meetings come at cost, and time consuming.
• Effective data storage and management.
• It will set into motion the use of technology towards affordable access to justice specially during post pandemic times.
• It will bring transparency in proceedings.
• It is a hassle-free process of dispute resolution.

Challenges For ODR Mechanism

ODR mechanism is not that viable in Indian context, it is subject to several challenges:

• Lack of Infrastructure-We do not have a robust technical infrastructure and there is lack of good arbitrators and mediators as well. Infrastructure issues have clipped the wings of ODR in India.
• Inadequate Internet Penetration-According to National Sample Survey data for 2017-18, only 42% of Urban and 15% of rural households had internet access.
• Mutual Consent is must-For invoking ODR mutual consent of parties is essential and in the absence of mutual consent, any decision rendered by neutral shall not be binding on parties.
• Lack of Technical Knowledge-It is often difficult to deal with people who are not much tech-savvy or used of digital ecosystem.
• Jurisdiction Issue-When disputes are entirely resolved online, question as to applicable substantive law to dispute arises, as parties are at distinct places. In conventional arbitration, place of arbitration is decided by the parties as per section 20 of the Arbitration and Conciliation Act,1996 which is subject to convenience of both the parties. But during online proceedings, conflict may arise with respect to place as they do not have to go anywhere physically. It may lead to ambiguity with respect to jurisdiction.

Suggestions/Way Forward

• In order to make ODR mechanism more effective, mass awareness and training through social media is required. Online Legal education platforms can act as a catalyst in spreading awareness.
• Making ODR/ADR voluntary will defeat the entire purpose so it is advisable to make it mandatory for specified categories. ODR should be covered up in atleast in three sessions so that parties may not feel that it a formality only.
• Governments can play a pivotal role in granting financial aids to ODR projects in India and work towards building robust technical infrastructure.
• People should change their mindset also to separate the idea of Justice from the place called court and start believing in Digital Justice.
• More recognition should be given to ODR mechanism for expedient resolution in coming times.
• More Advocates and Legal Experts should come forward and register themselves as mediator on online platforms such as SAMA.
• Government should set up a technology-rich system so that ODR mechanism can work efficiently.

I would like to wrap up by this meaningful quote –An ounce of mediation is worth a pound of arbitration and a ton of litigation- Joseph Grynbaum

End-Notes:

1. https://www.sama.live/how_sama_works.php
2. https://opengovasia.com/boosting-online-dispute-resolution-in-india/
3. https://opengovasia.com/boosting-online-dispute-resolution-in-india/
4. https://opengovasia.com/boosting-online-dispute-resolution-in-india/

Written By: Adv Radhika Verma