By Sivaram Sajith

 

Introduction

The most important switch in the functioning of the global community during the Covid -19 crisis is the successful utilization of ITC and online resources. The seamless transformation of schools, colleges, and courts into the virtual world brings with it a few important takeaways. It is plain to see at this point in time, the advantages, disadvantages, and general features this transformation holds. Online education eliminates physical and distance-based barriers while bringing with it economic benefits as well. Online resources are easily accessible and more available now that the trend of using the internet is more widely used and accepted. While all of the aforementioned advantages can’t be reflected in online courts, aspects of dispute resolution could make positive strides by taking it online.

Understanding ODR and its potential

In today’s global scenario, with a sharp increase in cross-global transactions, the need for the resolution of disputes that arise from such transactions does not come as a surprise. ODR holds the key to resolving such disputes in a fast, flexible, and economically feasible manner.

ODR essentially means using technology to resolve disputes. Simply taking a dispute resolution issue online does not necessarily constitute ODR. It denotes the use of technology and ITC to completely resolve a dispute.[1] When the COVID-19 epidemic swept throughout the globe, the prospect of ODR was on the edge of being recognized globally. The ensuing lockdowns, which brought most of the courts of the world to a standstill, have only fuelled the ODR movement. The crisis has helped to dispel any remaining reservations that harnessing the actual power of technology to resolve disputes is the future of dispute resolution, both in India and abroad.

Essentially, ODR can be classified into three types based on the authority that runs it.

  • Government-run ODR platforms
  • Court Annexed ODR platforms
  • Private run ODR platforms.

We would mostly discuss government-run and Court annexed ODR platforms comparing the ODR systems in place in the United States of America and India.

ODR in India

Describing India as a vast country would be an understatement. The necessity of dispute resolution mechanisms in India is better understood by analyzing the number of cases listed versus the number of cases heard. For example, in April 2020, the Supreme Court was able to schedule 357 cases for hearing, which is only 2.48 percent of the total number of cases in the Supreme Court’s docket.[2] The process of going through a court to resolve a dispute is taxing, lengthy, and often times resolved through simple arbitration. Technical issues like dawdles due to non-filing of documents, absence of witnesses and parties are all issues that could be fixed with ODR.

  • Government Initiatives

The government of India has put forth many initiatives to support and grow the ADR framework in the country. Some of these commendable initiatives that involve ODR are, initiatives like The Department of Consumer Affairs’ National Consumer Helpline (NCH). It disseminates information on consumer issues and promotes consumer welfare. The Department of Consumer Affairs expanded this service in August 2016 when it launched the Integrated Consumer Grievance Redressal Mechanism (INGRAM) initiative, which provides a platform for consumers to have their complaints and grievances directly addressed by companies that have voluntarily partnered with NCH.[3] The Department of Justice kicked off the conversation about using ODR to resolve disputes involving government entities in 2017 by providing a list of ODR Platforms and encouraging government departments to resolve their disputes online.[4] While all of these initiatives are commendable, there is great untapped potential and moreover a necessity to utilize ODR.

  • Potential and policy

The potential for ODR in India is summed up with this bold statement in the NITI Aayog report on the ODR policy plan in India which says that India can be at the forefront of the global ODR movement. To realize the potential of ODR in India NITI Aayog took several initiatives. The NITI Aayog took the first move in this direction on June 6, 2020, when it held a virtual consultation titled “Catalyzing Online Dispute Resolution in India” in partnership with civil society and other organizations.[5] On the 8th of August, the NITI Aayog convened another session on ‘Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business’ in order to further the goal of broadening the base of ODR in India.[6] Following this, a committee was formed to discuss and form an action plan to popularize ODR and, as a response, benefit from it. The committee’s aims include amending existing laws, collaborating with the judiciary, studying global practices on ODR, and other initiatives that facilitate better ODR mechanisms in the country.[7]

  • Challenges

The first and foremost necessity with respect to availing ODR is the knowledge of ODR in the first place. This is important provided India still has a relatively low literacy rate of 77.70% as of 2021.[8] Providing the knowledge of the arbitration mechanism and how to avail it would prove challenging but doable. Another challenge that would act as a corollary to the previous point would be the lack of infrastructure like computers, smartphones, etc.[9] Paranoia with respect to security and privacy could be another issue. Tampering with digital signatures or evidence, agreements, etc are very reasonable fears. Employing digital signatures[10] as well as encrypted documents could prove to help with building the trust and security of such processes.

ODR in the United States of America.

The United States is far more developed in ODR and providing ODR platforms. The most common forms of ODR disputes within the country are family disputes, small and commercial claims, mediation, case management, civil debts, and traffic violations. In the country, there are areas of 2019, 66 active sites of court-annexed ODR sites active.[11] The vast involvement of ODR in traffic violations, small taxes, and family courts helps the parties reach agreements quicker and surer. This is possible in an easier and more efficient way because almost 90% of the population has access to some type of computing device. This trumps several disadvantages that plague the Indian ODR scenario.[12] To understand and study how and why the country has a thriving ODR structure we have to analyze their ODR systems and their advantages.

  • Court Annexed ODR platforms in the U.S.

The state of Utah saw a significant improvement in the number of people who appeared in court as well as the number of cases that reached agreements after the incorporation of ODR by the Utah Judicial Council. After seeing the significant amount of default judgments in small claims courts, Utah leaders decided to implement ODR. Their goal was to make it easier for defendants to participate in the process without having to appear in court in person.

In 2016 the Utah Judicial Council created an ODR Steerling Committee which focuses on ODR in small claims cases.[13] After the incorporation of the ODR program, there was a noticeable steep increase in cases that reached agreements. In the small claims/tax department alone, 93% of cases reached agreements while only 46% reached agreements without ODR.[14] In conjunction with Matterhorn, a private ODR provider, Michigan was one of the first states in the United States to start an ODR pilot program for settling traffic disputes.[15] The main crux of the program was to take the presentation of cases, submission of evidence, and provide explanations for defaults online and in a regulated ODR system. The American Bar Association has formed an ODR Task Force with the goal of increasing market transparency and user trust. Individuals from varied experiences and perspectives, including ICODR, American Arbitration Association, Self-Represented Litigants Network, American Law Institute, and others, make up the Task Force.[16]

Conclusion

ODR systems save the government, judiciary, and the citizens a lot of money and time. It creates a platform to be able to deliver justice more efficiently and if incorporated correctly would create interconnections even when physical interaction is not possible or necessary. ODR is easily one of the most innovative, brilliant, and efficient methods of delivering justice and should be incorporated in every legal, governmental and judicial system.

 

[1] U.N.C.I.T.R.A.L Technical Notes on Online Dispute Resolution, United Nations Commission on International Trade Law (Apr. 2017), https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/v1700382_english_technical_notes_on_odr.pdf.

[2] Shreya Tripathy and Tarika Jain, ‘Caseload During COVID-19 (April 2020): A Look at the Numbers’, Vidhi Centre for Legal Policy (2020), https://vidhilegalpolicy.in/research/supreme-courts-caseload-during-covid-19-april-2020-a-look-at-the-numbers/.

[3] Annual Report 2019, Department of Consumer Affairs (2019), https://consumeraffairs.nic.in/sites/default/files/file-uploads/annualreports/1596167686_Annual%20Report%202019-20.pdf.

[4] Online Dispute Resolution through Mediation, Arbitration and Negotiation, Department of Justice (2017), https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-2021.pdf.

[5] NITI Aayog, ‘Catalyzing Online Dispute Resolution in India’, Press Information Bureau (June 7, 2020), https://pib.gov.in/PressReleasePage.aspx?PRID=1630080.

[6] Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business’, NITI Aayog (Aug. 25, 2020), https://pib.gov.in/PressReleasePage.aspx?PRID=1644465.

[7] Designing the Future of dispute resolution, The ODR policy plan for India, NITI Aayog (Oct. 2021), https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-2021.pdf.

[8] Literary Rate of India 2021, Find easy (Oct. 17, 2021), https://www.findeasy.in/indian-states-by-literacy-rate/#:~:text=Literary%20Rate%20of%20India%202021,As%20per%20the&text=According%20to%20National%20Statistical%20Office,female%20literacy%20stands%20at%2070.30%25.

[9] Joseph W. Goodman, ‘The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation Websites’, Duke Law & Technology Review (2003), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr.

[10] Esther van der Heuvel, ‘Online Dispute Resolution as a Solution to Cross Border e-Disputes’ (2000), https://www.oecd.org/digital/consumer/1878940.pdf.

[11] Online Dispute Resolution in the United States, ABA Center for Innovation (Sept. 2020), https://www.americanbar.org/content/dam/aba/administrative/center-for-innovation/odrvisualizationreport.pdf.

[12] Id.

[13] Melisse Stiglich, Utah Online Dispute Resolution Pilot Project, NCSC (Dec. 2017), https://ncsc.contentdm.oclc.org/digital/api/collection/adr/id/63/download.

[14] Amy J. Schmitz and Janet Martinez, ‘ODR and Innovation in the United States’, https://deliverypdf.ssrn.com/delivery.php?ID=827006111117103067124121111090003111103049014093061025126072007126025087004064005067098030052002015017013094017070076028125002052019045093022027021090096097024086041039086122089007126115067088087087014093097119089026017005096003012113024084127120006&EXT=pdf&INDEX=TRUE.

[15] Amy J. Schmitz, ‘Measuring “Access to Justice” in the rush to digitize’, https://fordhamlawreview.org/wp-content/uploads/2020/06/Schmitz_May_S_11.pdf.

[16] Amy J. Schmitz and Janet Martinez, ‘ODR and Innovation in the United States’, https://deliverypdf.ssrn.com/delivery.php?ID=827006111117103067124121111090003111103049014093061025126072007126025087004064005067098030052002015017013094017070076028125002052019045093022027021090096097024086041039086122089007126115067088087087014093097119089026017005096003012113024084127120006&EXT=pdf&INDEX=TRUE.