Online Dispute Resolution Series – What is ODR and how does it affect ADR

Online dispute resolution is the modern and digitized iteration of the traditional ADR with the major noticeable difference only being the use of machines and networking for communication. Various developed countries have, from nearly two decades ago, implemented it in full force and the results have always been impressive. It not only holds great promises for the future, its slow but formidable implementation has started growing its roots in the Legal system of India.

Though the Origins of ODR from the worldwide purview can be seen to go as far back as 1994, it has had a slow start in India. The need for ODR in the current scenario has been evident with the increased burden on the courts, in fact, to the point that even the current CJI expressed his concern regarding the same last year in a conference in Chandigarh.[1] And so, ODR has been recognized as the next big change that will revolutionize the world of ADR and the ease of its access.


DEFINING ODR IN INDIA

Alternative Dispute Resolution(ADR) is a method by which parties choose not to go to the courts and solve their disputes in any other manner, the outcome of which shall be binding. ODR is a fusion of ADR with the Information and Communication Technology(ICT). It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect, it is often seen as being the online equivalent of alternative dispute resolution (ADR).[2]

The paper focuses on defining ODR from the standpoint of India and in doing so seeks to list all of its major components that have been recognized in India. Some of the Authoritative definitions of ODR are as follows:

‘Online Dispute Resolution’ to mean utilizing information technology to carry out alternative dispute resolution.[3]– Farah

Schiavetta explained that the online dispute resolution comprises a process to resolve dispute exclusively online and also other dispute resolution process that uses the internet.[4]

According to Katsh and Rifkin[5], the three important factors, namely convenience, trust and expertise forms the essence of ODR.

In the case of India, as a developing country, there are many other factors which are equally essential to an ODR process, such as affordability, accessibility and infrastructure, flexibility, transparency, awareness and basic general acceptance amongst other factors.

Types of ADR: ADR has always been a dynamic concept. As seen by common law, the development of society causes changes in the values and the types of laws needed as per the time. The change always begs for a change in types and motives of disputes. ODR, being the digital version of it, encompasses most if not all of its scope. That dynamism has still not completely pierced into the legal envisage of India and only the most basic forms can be properly identified. These are –

  1. Negotiation: In its simplest form, negotiation involves an exchange of views and proposals when a dispute opposes parties who wish to settle out of court. Unlike mediation or arbitration, negotiation does not involve the intervention of a third party. Finding a mutually acceptable solution to the dispute lies entirely in the hands of the parties. The negotiation process is confidential and completely voluntary; generally, the parties can withdraw at any point. Negotiation is all about communication and perceptions. What we say, how we say it, and when we say something. Tone, inflexion, facial expression, and body language are as important, if not more important, than the spoken word. Some psychologists estimate that seventy to eighty percent of communication comes from nonverbal cues. As a result, negotiation dynamics vary depending on many of the factors just discussed in conjunction with the form of the negotiation such as face-to-face, written, telephonic, or some technological form of ODR.
  2. Mediation: Mediation can be defined as a process by which two people agree to submit their dispute to a neutral third party, the mediator, who uses various methods and techniques to try to guide the parties toward an out-of-court settlement. Managing the mediation process can also be collegial, in other words, performed by a number of individuals. While it is impossible to force a recalcitrant co-contractor to put real effort into mediation, it is widely accepted that including an optional mediation clause in a contract is still useful. Given the power relations often involved in negotiations to resolve a dispute, a mediation clause allows one party to suggest mediation without having the suggestion interpreted as an admission that the legal arguments for its position are weak. The mediation clause can also have a restrictive effect when it is a prior condition that must be met in order to have recourse to a court of law or arbitration. The classical example of such a mediation clause is one that bases the restriction on a prior condition that is especially easy for a court to establish: compliance with a deadline. This type of contractual mechanism makes the dispute inadmissible to the courts or arbitration before the expiry of a cooling off period during which contractual provisions commit the parties to using mediation. It can also be seen in a growing number of commercial contracts. As noted above, mediation can also be part of a multi-step process beginning with negotiation and flowing through mediation to arbitration, as required.
  3. Arbitration: Arbitration is a voluntary process in which disputing parties engage the services of one or more neutral third parties. This dispute resolution process is most closely analogous to litigation because it is adjudicatory; the arbitrator renders a final decision much the same way a judge enters a final judgment in a litigated case. As in the case of mediation, arbitration is sometimes very advantageous for parties that are in conflict but nonetheless wish to pursue their contractual relationship and maintain the confidentiality of the proceedings. It should be noted that arbitration is generally more flexible and much less formal than court proceedings, but results in a decision that is as binding as a judgment and for which enforcement is greatly facilitated internationally. Parties can provide for recourse to arbitration right when they sign the contract that unites them. This is done through an arbitration clause such that all disputes arising out of their contractual relationship are subject to arbitration in accordance with the conditions set out in the clause or in legislation. Of course, it is also possible to provide for recourse to arbitration after the contract is signed using an adjunct, in other words, an additional legal instrument modifying the initial contract. Finally, the parties can also initiate the arbitration process after a dispute has arisen by signing an arbitral compromise, but this rarely occurs because it is generally difficult to come to an agreement after a dispute has occurred, even when what is at issue is how to resolve the dispute. In each of these cases, it will no longer be possible to bring the dispute before the courts, except if there is a criminal offence involved, for example. An arbitration agreement involves renouncing the right to regular recourse before the court.

 

 

[1]Ajay Sura, “Need to adopt Online Dispute Resolution Mechanism: Justice Dipak Misra,” (Times of India, May 14, 2017)  <https://timesofindia.indiatimes.com/city/chandigarh/need-to-adopt-online-dispute-resolution-mechanism-justice-dipak-misra/articleshow/58667405.cms&gt; accessed 20 February, 2018

[2]Arthur M. Monty Ahalt,, “What You Should Know About Online Dispute Resolution”, 784, <http://files.ali-aba.org/thumbs/datastorage/lacidoirep/articles/PLIT0903_Ahalt_thumb.pdf&gt;

[3]Farah C, Critical analysis of online dispute resolution :optimist, realist and the bewildered, Computer Telecommunications Law Review, 11(4), 123-128. Zondag and Lodder defined online dispute resolution as using internet for alternative dispute resolution, constructing computer assisted dispute resolution system by developing generic language to analyse information exchange in conflict discourse, International Review of Law, Computer and Technology, 21(2), 191-205.

[4]Schiavetta S., Relationship between e ADR and Article 6 of European Convention of Human Rights pursuant to case law of European Court of Human Rights, Journal of Information Law and Technology, 2004 (1) JILT.

[5]Katsh E, Online Dispute Resolution : some implications have emergence of law in cyber space, Lex Electronica, vol.10n.3,hiver/winter2006, http://www.lex-electronica.org/articles/v10-3/katsh.htm

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