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Unravelment of ODR in the Indian Landscape: Hurdles and Possible Solutions.

Unravelment of ODR in the Indian Landscape: Hurdles and Possible Solutions.
  • How beneficial can it be for you to have the services of legal dispute resolution on your laptop
  • How about filing a complaint online and making your concerns heard by way of a simplistic setup like that of an app?
  • Resolving disputes without courtroom hassles all in the comfort of your vicinity, YES, all this is possible with ODR!

A Blessing In Disguise!
NITI AYOG has given an ultimate push to ODR, with its policy titled 'Designing the Future of Dispute Resolution: The ODR Policy Plan for India', the first of its kind comprehensive document on ODR released by the government of India, which provides much-needed insight on the distinctive mechanism. Online dispute resolution is a way of resolving disputes virtually involving the modes of alternative dispute resolution with technology being a major role player.

Dispute resolution involves techniques like negotiation, mediation, arbitration, conciliation, etc. Arbitration and Conciliation Act 1996 has governed the advent of commercial arbitration in India following which the act has undergone several amendments. ODR as a mechanism of resolving disputes is very advantageous over other methods of solving grievances that might involve courtroom litigation hassles. The process is cost-effective, convenient, time-saving, and easily accessible.

The growth of ADR in the recent past has been enormous but a lot needs to be done in making ODR a success in India. If the potential of ODR is optimized to the fullest, the mechanism can work wonders in achieving expedient dispute resolution. To achieve this goal, it becomes crucial to discuss the challenges that are hindering the effective implementation of ODR in India and what might be the prospective solutions to overcome such challenges.

Digital Infrastructure Vis A Vis Digital Literacy

There is a dire need for a robust technological framework for making the dispute resolution process simple and effective. Necessities like smartphones, computers, high bandwidth, and a stable internet connection are still inaccessible across all the groups nationwide. There is a deep digital divide that needs to be overcome for making ODR a success. According to the 75th round of the NSS (National Sample Survey) report, 2017-18, household-level statics reveal that only 4.4% of rural households own a computer as compared to 23.4% of urban households. The basic skill set required to access ODR and put technology to use is still unpossessed by a major chunk of the Indian population.

The disparity in access to technology exists across various groups that are divided on the parameter of gender, geography, class, age, and financial background. The women and the elderly population are still lacking to utilise technology for their interests as compared to their counterparts. People from weak financial backgrounds are still not able to afford the infrastructure that is required to access technology.

The government, too, has undertaken various initiatives to overcome this technological divide by implementing policies like The national Digital communication policy 2018, which aims to provide universal broadband connectivity, and the National Broadband Mission, which promises to provide broadband connectivity to villages by 2022. People must be digitally literate to overcome the challenge of integrating technology with dispute resolution.

Unfolding The Potential
Due to the lack of application of such dispute resolution mechanism in India people are not aware of the scope of ODR and its utilization. Disputes related to Consumer Protection, E-challans, small MSMEs, etc can be resolved effectively through ODR. People are largely dependent on courts for such types of disputes which can be handled more efficiently through the ODR mechanism. There is a lack of reliance amongst the people despite the costs and delays associated with the Indian Judicial system.

According to the Economic Survey 2018-19, about 3.5 crore cases are pending in the judicial system, especially in the district and subordinate courts, and 87.54% of the total pendency of cases is in the district and subordinate court. The capacity to provide quality ADR services for less severe disputes has still not been achieved. Also, the ambiguity that surrounds the enforceability of ODR outcomes makes people lose their trust in such mechanisms. The process of execution of awards through courts can be cumbersome and counterproductive to the spirit of ADR.

Lack Of Training Mechanisms For ADR/ODR Professionals

The lack of proper training for the officials in government departments and PSUs creates a hindrance in the process of resolving disputes. A training mechanism needs to be developed for ADR and ODR professionals so that the benefits of the technique can be maximized. Listeners who are neutral in their approach and well versed in operating online dispute resolution are necessarily required.

There are concerns about privacy and confidentiality as ODR involves a greater integration of technology and less face-to-face interaction may lead to activities like online impersonation, breach of confidentiality, fake identification, and spread of sensitive information and documents. A well-equipped robust data storage and management framework need to be developed for overcoming the insecurity that people have towards their privacy while choosing ODR to resolve their disputes.

Possible Recourses

Making Technology Accessible

Access to technology has to be achieved in every facet including both digital infrastructure and digital literacy. The people may be provided with one-stop redressal centers where they should get access to every piece of equipment that might be necessary for a virtual dispute resolution session. Such centers must ideally be maintained by the government for the strata of people who cannot access such services in their homes and are not acquainted with the use of technology.

The centres must be equipped with computers or PCs and the requisite environment so that the process can conclude effectively. It is a fund expensive process in which the government would act as a major stakeholder mediating between the disputants and ODR. The Bharat Net Project of 2011 is a leading example of how such initiatives may fail due to a lack of funds. Digital literacy can be achieved through awareness programs and workshops starting from the very basic level as that of a small village. Judiciary may run campaigns on multimedia and social media platforms and may also publish the success rate of ODR in resolving disputes.

Technology and digital infrastructure must be integrated into the lives of people so that they adapt to such means. The digital divide must also be reduced so that everyone can access the dispute resolution ways like ODR to make them compatible with their counterparts. A customized training plan should be adopted to target level-based learning starting from the basic level to the practical skill acquisition.

The ADR/ODR professionals must also be trained similarly. Collaborations can be made by bodies like Bar Councils, District Legal Service Authorities, Judicial Academies, and District governments. The ODR training must also be infused into the legal curriculum. The capacity of court-annexed ADR centres must also be increased.

Adopting A Dispute-Specific Approach

As ODR can be fruitful for certain particular disputes, a dispute-centric approach can be adopted. Money matters, E-challans, insolvency, and Matrimonial disputes are some of the highlights. A single dispute resolution facility can also be created for all MSMEs so that they can utilize the potential of ODR for resolving such categories of disputes.

Consumer helplines must also be put in place to create an integrated consumer grievance redressal mechanism. Government initiatives like MSME SAMADHAAN have proved to be successful in taking the idea of ODR further. The need of the hour is a more dynamic and capacitive implementation that is inclusive of more categories of disputes and in larger volumes. Implementing this can relax a lot of burden from tribunals like NCLT and can help in avoiding delays.

Establishing Trust In ODR

Due to the uncertain and virtual nature of ODR, it is important to form a trust for the mechanism in the minds of the people. This will require collaborative and coordinative efforts from all the concerned stakeholders and the legal fraternity. Awareness needs to be created for people to choose ODR above litigation. ADR and ODR need to be differentially recognized so that their significance is realized by the service takers. A clear description of the services being provided by any institution is necessary for the people to differentiate among various ADR mechanisms like E-Arbitration, E-Mediation, E-Conciliation, etc. This can be established through various means.

MSMEs should be encouraged to adopt ODR for resolving disputes which will be more efficient and less time-consuming for them. Government and PSUs being the major litigants in the country must be made acceptive of ODR for resolving their disputes. A hybrid model of ADR and litigation has to be adopted till the time ADR is properly grounded as a way of resolving disputes in India. The common masses see litigation as the only recourse available to them in case of a dispute. This draws a need for the implementation of ADR in a phased manner using litigation itself for spreading awareness about the same.

The government can mandate certain categories of disputes to be necessarily solved through ODR. This can give an instant boost in the people's trust in ODR. The Mediation and Conciliation Project Committee is an example of the initiative taken by the Judiciary to mainstream ADR in the country.

Introducing Incentives

Incentives must be introduced for MSMEs and other service-takers to choose ODR as their way of dispute resolution. Incentives can be categorized based on the stakeholders, for instance, incentives for businesses, incentives for lawyers, incentives for start-ups, etc. A waiver on penalties and sector-specific schemes might be of interest to MSMEs, start-ups, and other bigger firms.

Advocates play a very huge role when it comes to educating the common masses about ADR. ADR/ODR, are right now very fancy terms known by a very small group of influential upper-class people or wealthy corporates that opt for them for addressing their concerns. Advocates are a connecting link between the people and the remedy of which the masses are unaware. They should be provided with incentives for spreading awareness about ADR to their clients. All these efforts can translate into a high rate of adoption of ODR.

Strengthen Of Legislative Framework

ODR should be regulated in a way that is both uniform and flexible so that the strict regulations do not hamper the dynamic nature of the process and the rights of the users are fostered. The existing legislation can be amended to incorporate mandatory pre-litigation ODR. The existing framework must also be made strong so that a progressive mode of control can be adopted. The Arbitration and Conciliation Act 1996 must be modified to include ODR which can help ODR base its roots as one of the Dispute resolution frameworks.

As privacy is already a hurdle in the effective implementation of ODR in India, it becomes certainly more necessary to have stronger and more transparent regulations. Proper regulations need to be in place to protect the identity of the parties and to keep a security check on any sensitive information that might be divulged through the course of the ODR session.

For any sort of dispute resolution that has to be conducted online, a suitable set of rules and regulations has to be formulated. Shifting the process online brings a lot of challenges with it which need to be addressed for smooth conduct. A special platform needs to be developed for this process and specific legislation for its regulations needs to be put in place. ADR, online and offline, are two very different things and require separate, intricate guidelines.

Developing An Exclusive Platform For ODR

To develop a platform for the process of conducting ADR online, it is very important to understand the difference between online dispute resolution and virtual alternative dispute resolution. During the COVID times, ways such as video conferencing, zoom meetings, and Webex meetings have been undertaken by the Indian legal system to deliver justice.

Here, the point of difference is that ODR is completely online from the filing of an application to the outcome of the ODR session whereas virtual ADR is simply conducting ADR sessions online using any of the video conferencing platforms.

So, to smoothen the process of ODR there is a need to design an exclusive platform to cater to the interest of this process and the people availing it. Certain apps are already in the pipeline which aim to conclude a hassle-free experience of an ODR session. Such apps need to be designed in a way that everything can be conducted online without the service takers being called offline.

This also requires legislative backing like allowing E-stamping and online notarization. For this purpose, automated notarization and E-stamping tools need to be developed. Electronic records also need to be stored online securely. Ways of authentication of the users and the intermediaries conducting the process must be one of the features of the app. Following all this, certain basic principles like transparency, consent of the parties, neutrality, fairness, impartiality, confidentiality, and competence need to be addressed.

Conclusion
As India envisioned by Dr. APJ Abdul Kalam, where the aggrieved can directly knock on the doors of the court to seek justice, ODR fosters the same spirit of establishing a way between a dispute and a remedy. If the capacity of ADR is fully utilized, a huge withstanding burden of millions of cases on the traditional Indian Courts can be relaxed.

However, to fully implement mechanisms like ODR in India, high expenditure on time and resources is necessary. India also needs to keep itself abreast with the latest technological advancements in the field. After these hurdles are crossed, ODR can work wonders for all the stakeholders and the disputing parties, being a very user-centric and easily accessible mechanism. ODR has the power to decentralize the process of dispute resolution in India with the help of IT and AI.

Though a lot has already been achieved in this area, the present is just the tip of the iceberg. There are still greys that need to be explored and uncovered. To brighten the future of ODR in India, consistent efforts from the govt, judicial system, people, and all the stakeholders are essential.

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