ODR Emerging as a Hope in the Pandemic
Suhasini Singh, Student, Sau. Kusum Tai Dabke (SKTD) Law College
Today, when the world is facing pandemic situation, when the only measures to contain the spread of this novel Corona virus is social distancing and lockdown and with this we are well aware that the conditions are far from being normal even in the near future and with all these situations the judiciary of India which is already burdened with n no. Of cases happens to be worsen with this conditions. Though the SC has now allowed the online filling and hearing if cases, but still the situation has just got worsen in this COVID-19 condition with tons of more cases adding up during the lockdown. And to all these problems ODR has emerged as only solution to ease pressure on courts and judiciary system.
Online Dispute Resolution (ODR) is basically a process to settle disputes outside the courts with the help of technology and ADR (Alternative Dispute Resolution) mechanisms.
ODR provides faster, quicker, transparent and accessible options for companies to resolve their disputes via online mode. In past few years India has witnessed a significant growth in the volume of online transactions, therefore in this present pandemic situation ODR is an efficient mechanism and more convenient to resolve disputes as it may implement a fast and fair dispute resolution system.
Online Dispute Resolution is an online mechanism very equivalent of ADR involving the methods such as negotiation, mediation or arbitration for resolving disputes. This public facing digital space includes methods such as:
Synchronous ODR is method to resolve dispute between the parties by having the parties communicate with each other in real-time via video-conferencing applications.
Asynchronous ODR method is a method where communication between the parties is not conducted in real time rather it includes communication via email or other such communication applications..
Online Mediation is emerging out to be the another most favourable form of ODR with nearly 70% of ODR platforms using it to reach a conclusion. Online Mediation typically starts with sending an email to parties of all the information about the proceedings followed by virtual meetings and conference conducted in the chat rooms.
Electronic Arbitration is though less popular method of an ODR but it still cover-up the process up to a certain extent.
Hence, it can be said that every practicable method of ODR is unique in itself and efficient to itself as its beauty is that it can be tailored as per the needs of the parties and circumstances.
In India today, a shift in the pattern of resolving disputes can be established as more and more ODR platforms have become operable in the country facilitating particular kinds of dispute resolution for many national and international companies. These ODR platforms have made easy the process of dispute resolution by combining the already existing process of ADR with cutting edge technology, making the process feasible and time convenient altogether.
Centre for Alternate Dispute Resolution Excellence (also known as CADRE)
CADRE is a website based platform which is founded by Shalini Saxena and Kanchan Gupta. Initially here, one party approaches the platform subsequently contacting the other party. After which of both the parties agrees then an arbitrator is appointed who further guides them throughout all the procedure and informing them result will be binding upon them. Further, both the parties are informed about all the information via e-mails or whatsApp. Generally, both the parties are not allowed to meet physically face to face instead of which video conference is kept if necessary. Furthermore, the decisions are declared within short span of 20-25 days of time.
It deals with disputes arising between tenant and rental contracts for an online home rental startup NestAway Visit the website: https://www.cadreworks.org/
It is yet another ODR platform which provides easy access to high-quality ADR service providers and helps resolving matters via online mode. SAMA got more into news when it was used by ICICI Bank to resolve nearly 10,000 disputes with values going up as high as INR 20 lakh.
It is another non-profit ODR platform that aspires to create a better system of law and justice by providing time-efficient, cost-efficient and attainable dispute resolution methods.
It is also a ODR platform which is one of its kind platform for resolving legal disputes online in a quick and cost-effective manner. The Presolv360 platform is open and accessible for public use where you can register your disputes. Moreover, this platform has also been recognised by the Ministry of Law and Justice, Government of India as a provider of Online Dispute Resolution ('ODR') services and is working with the government, judiciary and India Inc. to help you resolve your disputes in quicker and better way.
Centre for Online Dispute Resolution also known as CODR
It is a private institution which positions itself as an institution that administers cases online end to end. It lets the client and advocate control the whole process for a smooth process avoiding complexity.
Advantages of ODR
ODR is a mechanism in which a dispute is resolved via online mode. ODR offers all modes of Alternative Dispute Resolution such as arbitration, mediation, negotiation online which just advances the advantages of ADR. Depending on the nature of the dispute submitted, the potential advantages of ODR includes:
Time – We all are well aware of the Indian court system where over burdened cases, shortage of judges and protracted court proceedings is now, no more a secret. On one hand where court proceedings may take years to resolve a case on the other hand according to Section 29A of the Arbitration and Conciliation Act, 1996 (‘the Act), requires that the arbitral award in a domestic arbitration be rendered within 12 months from the date of completion of the proceedings. Moreover, the parties may, by consent, extend this 12-month period by six months. However, parties may experience delays if the opposing party may contest arbitration, choice of arbitrators or appeal against the arbitral award. Though cost may vary depending upon the type of technology used and the time frame required but still ODR mechanism is generally far way cheaper than traditional litigation and hence notably less expensive than in-person ADR.As ODR, does not require parties to travel it results in extreme savings of time of parties.
Flexibility – Court litigation is controlled and administered according to statutory and procedural rules. Whereas, parties opting for ODR may mutually agree upon the rules and the manner in which the disputes proceedings may be conducted.
Cost efficient – ODR is often promoted as a cheaper mode to resolve disputes between parties compared to litigation. As, ODR offers, arbitration, mediation and negotiation via online mode, ODR just advances these benefits even further. Hence, both ADR and ODR are cost effective and time effective. As ODR, does not require parties to travel it results in extreme savings of parties as well.
Expertise – Arbitrators appointed in ODR Arbitration are often appointed from a pool of professionals typically experienced in the subject matter of the dispute and may provide a greater level of expertise than a judge.
Convenience- ODR has this advantage of convenience as Cyber-dispute resolution allows parties to resolve their matters and claims from their respective offices or residences.
Moreover, unlike courts or arbitral tribunals, ODR service providers are generally available twenty-four hours a day, seven days a week, every day of the year. It lets parties to communicate at any hour of the day and hence, diminishing difficulties faced by parties located in different time zone.
Moreover, another winner here which must be mentioned in the current situation could be ADR: in cases where application of force majeure and hardship clauses, also insurance coverage, is not straightforward, in order to resolve their disputes parties may conveniently opt to alternatives to litigation and arbitration, like mediation, conciliation, and direct negotiation. It is recently seen that most arbitral institutions are promoting their ADR services. And what’s better to go for virtual arbitration during this pandemic situation.
In the light of the novel coronavirus, many activities is getting effected the reason behind this is social distancing “stay home & stay safe” for unspecified period, people activities have become impossible. Nevertheless, when there are difficulties there are solutions too.
Arbitration remains a preferred dispute resolution mechanism in the business world as well. For instance, Price water house Coopers validated in its 2013 survey on topic ‘Corporate attitudes and practices towards Arbitration in India’. According to which 91% of the companies that responded include arbitration (not litigation) for resolution of disputes. On asking the corporate participants during the same survey that what are the top three factors (or identify top three factors) which make arbitration the preferred dispute mechanism, they listed three factors that were “speed, flexibility and confidentiality”. So, when during this tough times, when court hearings, arbitration and many other physical activities has become impracticable the Online Dispute Resolution seems to be the best solution having alternative way of virtual arbitration viz., video conferencing or telephonic hearing. Unique use of Technology during the Covid-19 pandemic for virtual Arbitration, may emerge as technology boon.
As, by the name “virtual arbitration” it is suggests that the disputes or clashes gets resolved with the help of technology. These online hearings will be conducted with same laws as provided and mainly provided in Information Technology Act, 2000.
Under this pandemic situation, it looks like the best option to go with is the technological option, in hope to find out the best outcomes and courts to ensure giving justice and resolve the disputes.
As there is a novel pandemic continues for how many days nobody knows, and the lockdown in India has been done several times and can be done in near future as well depending upon circumstances, so people are trying to figure out another ways for this and exploring technology for settling their legal issues. This time is very crucial for each and everyone as we are facing a lot of struggles for exploring options to use technology and various online methods to maintain social distancing and carry on with physical distancing and take all the safety measures. In this reference, one major step taken by Indian judiciary is the emergence of virtual hearings via video conferencing etc., whether it is arbitration or court proceedings for important and urgent cases.
The Supreme Court has already passed the guidelines for the courts functioning through video conferencing on 06-April-2020. The Indian judiciary has included information and communication technology systems via E- courts integrated mission mode project, (e-court project) as part of the national e-governance plan (NEGP). The first use of virtual court was witnessed in ‘state of Maharashtra v prafuldesai’ case. The court held that the term of evidence includes electronic evidence as well and the video conferencing may be used to record evidence for later proof also. The Indian judiciary noticed that development in technology have created a way possibility of virtual courts which are very much similar to physical courts.
Indian Governments with ODR
Coming to Indian government part, the government has undertaken several initiatives to monitor caseloads and promote alternative dispute resolution (ADR). For instance, once the Vice President of India, while speaking at a conference in 2018, remarked and mentioned that ODR was the need of the hour, which would also help to attract foreign investments by projecting and India as an investor-friendly country.
It is hugely beneficial to have online hearings, but such hearings may only be effective if they are well-run. And for a smooth and effective hearings tribunals, counsel and parties must cooperate to ensure a smooth process. For the sensitivity of the arbitrations, cyber security of the proceedings and personal data given (within) should be well maintained throughout. Arbitral tribunals may issue cyber-protocols for same and procedural orders to deal with the logistics of holding such hearings.
Also it was witnessed, that the department of justice (DoJ), in 2018, urged government entitled to explore alternative methods such as mediation, arbitration, conciliation, online or otherwise for dispute resolving. The DoJ also noted that more than 46% of these cases involved government entities. Hence, it was supposed that the increasing support for arbitration by private parties, government and judiciary could ensure ease of doing business and make India a preferred destination for foreign direct investment.
The outbreak of novel corona virus (2019-nCoV or COVID-19) is causing widespread consequences. The virus is affecting each and every aspect of life: courts have been forced to close due to current situation, trials by jury have been postponed in some jurisdictions, some business disputes are now kept at hold, and businesses are facing ever increasing economic uncertainty.
The novel corona virus has created terrifying situation but people were trying to make new paths with the help of technology. Indian judiciary system is working hard for giving the best and justified judgements of the cases of virtual arbitration keeping in mind of “Stay At Home & Stay Safe”. Despite the difficulty in drawing conclusions at this current stage, there is still a concrete reason to hope that ODR will emerge from this crisis and pandemic undefeated. The proactive attitude of arbitral institution is not only inspiring and encouraging but also it develops a new hope for economic growth in these challenging times and hence thereafter.ODR witnessed a boom globally with the e-commerce sector at the time when E-bay and Paypal began resolving their dispute via online mode. ODR mechanisms has been widely accepted in countries like U.S.A, Brazil, China by constituting their separate platforms to resolve disputes arising out of e-commerce transactions. It has already witnessed globally that millions of disputes have been dealt successfully without even filing a single suit in a traditional court of law.
It is indeed proving the fact that technology just gets better with time and as technology being the prime ingredient of different ODR methods, hence, there is no deniable in saying that ODR will come up with new and more desirable techniques.
In India today, ODR is still in its early stage but it is just a matter of time before ODR is adopted and accepted at a large scale by people all over India. This electronic and technology form of dispute resolution helps enabling new possibilities that were previously unavailable. It provides the virtual simultaneous presence of all the parties without needing any sort of personal attendance at any particular place and time. With millions of cases pending in courts it goes without a doubt that India today needs more and more ODR platforms as to come up to the rescue. ODR mechanism being so simple and effective has all the potential to come into mainstream dispute resolution systems and hence acceptance of it cannot be called into question. In the near future, ODR mechanism not just has potential to serve as a platform for quick disposal but also it can be seen as an area of employment for thousands of arbitrators or advocates.
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