ODR and access to justice: expanding ADR mechanisms through technology

Shambhavi, Symbiosis Law School, Pune

What is ODR

Through the use of the Internet, parties situated all over the world can quickly and easily enter into contracts with one another. However, because of the low value of the transactions and the physical distance between the parties, litigation for these issues becomes difficult, impractical, expensive, and time-consuming. A wide range of technologies are referred to as “online dispute resolution,” or ODR, and are intended to either complement or replace the methods that people have traditionally used to settle conflicts. ODR (Online Dispute Resolution) is a form of ADR (Alternate Dispute Resolution) that uses the speed and the ease of internet and ICT. ODR is the greatest and frequently the only way to improve the resolution of consumer confidence in the marketplace and encourage the long-term expansion of e-commerce.

Chat messaging between parties may be supported by ODR platforms if they are trying to resolve a more specific issue, such as settling on a settlement sum. They could use the site to make requests and proposals. This could take place synchronously or asynchronously, with or without the involvement of a mediator. In an additional type of ODR, parties could take part in something that resembles a conventional mediation but is carried out over video conference, with the mediator in charge of deciding who speaks with whom and when. The parties may have access to additional documents and be able to collaboratively develop settlement language during the mediation, depending on the platform.

ODR- IT’s ORIGIN AND BACKGROUND

With the development of the internet in the 1990s came the idea of online dispute resolution (ODR), as there were more online transactions and problems arising from them. Three general periods can be distinguished in the global development of ODR, with each phase profiting from later advancements in information, communication, and technology (ICT). We go over each of the three stages below:

Phase one- Experiment of eBay’s leads the way

The first ODR project initiatives were launched in 1996 by the Universities of Massachusetts and Maryland.
With the growth of e-commerce, doing business operations over the Internet requires a stable system. A fix was provided by the ODR for the issue.
eBay initiated a test program in 1999 to offer online dispute resolution services for disagreements that may arise between buyers and sellers using its marketplace.
Through its ODR platform, eBay was managing more than sixty million disputes annually by 2010.

Phase two- Boom of ODR start-ups

The popularity of ODR platforms and the profitability of this strategy were fueled by the internet’s rapid growth. Twenty-one new ODR programs were implemented in 1999.
A small number of well-run platforms, such as the Mediation Room, Smart settle, and Cybersettle, have had a significant influence on the dispute resolution industry.

Phase three- Adoption by the Judiciary and the government

Governments became interested in this newcomer to the dispute resolution ecosystem due to the success of a few of the private ODR platforms.

ODR in India and COVID-19

Justice DY Chandrachud of the Supreme Court stated on Saturday that the principles of decentralization, diversity, democratization, and disentanglement of the entire justice delivery system are the foundations of Online Dispute Resolution’s (ODR) strength.
Unimaginably, COVID-19 has changed many aspects of our existence, including the way courts function—virtual hearings have replaced in-person ones. Everyone found the shift challenging, including litigants, advocates, and court employees. But even though it took a while, the idea of virtual hearings eventually found a home in the legal system, according to top Supreme Court Judge, Justice Chandrachud.

According to Justice Chandrachud, ODR has a significant place in the modern, digitally connected world. This is due to the process’s strong desire to embrace all available digital technologies as well as the fact that it is being carried out electronically. One of the most significant lessons from the past year of virtual hearings, in my opinion, has been that, with relatively minor adjustments, the process can frequently be significantly more effective. These adjustments include having all documents in one location, allowing all parties to utilize digital files, and enabling digital note-taking. Additionally, resolving all conflicts online generates a lot more data that can provide the foundation for future improvements to the ODR process. In actuality, this data can also be effectively utilized to enhance the online court experience.

Due to COVID-19, there is an immediate need for ODR and a chance that court cases involving lending, credit, real estate, retail, and commerce may increase. For example, Udaan, the biggest business-to-business (B2B) marketplace in India, used an ODR service provider to settle more than 1800 disputes in a single month. An average of 126 minutes was spent on each argument. ODR may be the tool used by enterprises in the upcoming months to achieve quick resolution. The ODR manual makes this possible for companies.

The legislative readiness of India is another factor contributing to its ODR readiness.
The technology component of ODR (such as the Indian Evidence Act, 1972, and the Information and Technology Act, 2000), as well as the ADR component (such as the Arbitration and Conciliation Act, 1996 or the Code of Civil Procedure, 1908), is supported by several support laws, albeit piecemeal. Additionally, India has seen ratify the United Nations Convention on International Settlement Agreements Resulting from Mediation. In Chapter IV of this research, India’s ODR readiness is explained at great length.

ADVANTAGES OF ODR

Legal Health Promotion: By educating individuals about the law, their obligations and rights, and the remedies that are accessible to them, ODR can significantly contribute to the promotion of legal health. For example, in the EU, retailers are required to let customers know that they have the choice to use ODR.
Dispute Avoidance: Data-driven ODR tool development can give citizens the knowledge they need to make decisions based on the advantages and disadvantages of the legal position. In addition, if there is agitation over rights, ODR can assist parties in determining the case’s likely outcome. ODR can therefore assist persons in identifying and avoiding legal barriers.
Dispute Containment: Essentially, ODR can facilitate the practical and informal containment of disputes before they reach the judicial system. In essence, ODR can enhance ADR with a digital layer and increase its effectiveness.
Cost-effective: The expense of resolving disputes frequently turns the procedure into a penalty, which obstructs access to justice. Both the disputants and the neutrals can resolve disputes more affordably using ODR.
Convenient and Fast: One of the main issues facing the legal system in India has been the backlog of litigation in Indian courts.
Boundaries Implicit prejudice brought on by human judgment: Research has shown that communication anxiety and implicit bias can affect the way a mediation turns out when including members of various cultures. When settling conflicts, ODR procedures can reduce the Neutral’s unconscious prejudice.

SHORTCOMINGS OF ODR

Lack of awareness regarding ODR- Currently, a lack of knowledge about alternative dispute resolution (ODR) results in businesses and litigants having little faith in ODR procedures and limiting the use of ODR in areas with great promise, such as consumer disputes and MSME conflicts.
Digital literacy- Widespread digital literacy is a requirement for ODR, in addition to digital infrastructure. In India, there are typically regional, ethnic, and age-based differences in digital literacy. For example, India has 743.19 million internet users, but the rural internet penetration rate is only 32.24%, which is less than one-third of the urban internet penetration rate (99.12%).
Legal Culture- In nations where people rely more heavily on the courts and where alternative dispute resolution (ADR) processes are not widely used, it can be challenging to establish ODR.
Concerns regarding confidentiality and privacy- Increased technological integration and a decrease in in-person encounters pose additional privacy and confidentiality problems, particularly in the context of dispute resolution. These can include a breach of confidentiality, Online impersonation, and tampering with the digital evidence.

ODR’S GUIDING PRINCIPLES

The following are among the ODR Platform Design Principles:

Interoperability: The ODR platforms should be built with the capacity to integrate both new and old technologies, as well as allow separately produced components to communicate and function together with both internal and external systems, networks, and entities.
Portability: Data should be able to be transferred between ODR Platforms without requiring extra payment due to the platforms’ design.
Modularity: ODR Platforms’ complex designs should result in modular solutions that enable iterative development and serve as the foundation for the next breakthroughs.
Privacy, Security, and Trust by Design: Websites should incorporate sufficient security measures to preserve user privacy as well as the integrity and security of any data shared during the dispute settlement process.
Transparency: Platforms ought to be created with accountability to all of their stakeholders in mind. They ought to be made in a way that allows the final user to access the procedures used and the conclusions reached.
User Centricity: Platforms ought to be built with the main users in mind, giving them choice over access and guaranteeing that all platform actors take responsibility for their actions. Users should be able to communicate with one another without the need for an intermediary, and platforms should be made to be reasonably priced.
Data-driven Development: New use cases and l behavioral trends should be recognized by platforms through data observation and design. The ODR Platform should be updated with new features and changes based on these patterns.
Competency: To help the platform meet the standards it has set for itself, it should implement an internal oversight, quality assurance, and grievance redressal procedure.
Consent: The parties’ ongoing, clear, and informed consent should serve as the foundation for the ODR process.
Neutrality: To prevent conflicts of interest and guarantee the independence of neutrals, platforms ought to create an ethics code.

RECOMMENDATIONS TO ODR

Boost Access to Digital Infrastructure: The government and the judiciary, two important stakeholders, must work together to provide more physical access to technology and infrastructure. The government may think about working with private sector service providers to create bespoke solutions and trial programs.
Boost Capacity: If ODR is to be expanded in India, a boost in the experts’ and service providers’ capacities is required. Only a methodical and coordinated effort including all relevant parties—from the government to industry and the judiciary—will be able to accomplish this.
Develop ODR Trust: To successfully implement ODR, more trust in the procedures from the parties involved—individual disputants, corporations, and governments—will be needed. Additionally, the government has the authority to require that certain types of conflicts be settled through ODR before going to court.
Mechanism for Data Protection: A thorough data protection law that can handle the security and confidentiality issues that regularly come up with ODR procedures is necessary for India to have a strong ODR framework. In response to strong criticism, the government withdrew the Personal Data Protection bill that it had submitted in 2019.
Technology’s role: Legal procedures may incorporate more and more of the new developments in information technology, such as blockchain, big data, artificial intelligence, and machine learning. One area where technology’s full potential can be realized is in the field of smart contract arbitration procedures enabled by blockchain technology.

CONCLUSION

In conclusion, online dispute resolution, or ODR, has the potential to completely transform India’s legal system by providing a more convenient, effective, and affordable substitute for conventional conflict settlement procedures. India can set the stage for a more equitable, responsive, and inclusive judicial system that satisfies the changing demands and expectations of its people in the digital era by embracing ODR and taking proactive measures to address the related difficulties.