In the previous article, we defined what ADR and ODR mean. This article poses a more real-world view of these seemingly perfect concepts. The technical requirements for a successful ODR setup, The process of ODR, and Its Position in India are dealt with in the current article.
Requirements of ODR: 1. Mode of Communication (A Secure portal on the Internet).
- Means of Communication (Networking Devices with cameras such as PC’s and Tablets).
- General Requirements of ADR.
The Stages of ODR:
- Stage 1 of the ODR model shall provide Online Evaluation.
This facility will help users with a grievance to classify and categorize their problem, to be aware of their rights and obligations, and to understand the options and remedies available to them.
- Stage 2 of the model shall provide Online Facilitation.
To bring a dispute to a speedy, fair conclusion without the involvement of judges, this service will provide online facilitators. Communicating via the Internet, these individuals will review papers and statements and help parties through mediation and negotiation. They will be supported where necessary, by video conferencing facilities. Additionally, they will be assisted by some automated negotiation mechanisms, which are systems that help parties resolve their differences without the intervention of human experts.
- Stage 3 of the model shall provide Online Arbitration.
There will be certified arbitrators who will decide suitable cases or parts of cases on an online forum largely on the basis of papers submitted to them electronically as part of a structured process of online pleading. This process will again be supported, where necessary, by video conferencing facilities.
The use of ODR in criminal cases: The use of ODR will allow parties to be present in a physically distant place which can become a great help for traumatized victims and dangerous accused. ODR will help the legal system of India in saving a great amount of taxpayer’s money by allowing such feats and allocating it in some other place of need.
ASSESSING THE SITUATION OF ODR IN INDIA
A legal overview of ODR in India:
- Section 89, repealed by Arbitration act, 1940 of Code of Civil Procedure, 1908 promotes the use of alternative dispute resolution between parties.
- Information Technology Act 2000, as well as the Arbitration and Conciliation Act 1996 together form the legislative base for ODR
In State of Maharashtra Vs. Dr Praful B. Desai, the Supreme Court acknowledged the use of video conferencing to record witness statements. Therefore, the submissions and the proceedings can take place online. For this, the International Chamber of Commerce has laid some guidelines which ought to be followed for uniformity. These include agreeing upon the time zone, the format of documents and other paraphernalia.
There have been instances where the parties have decided upon arbitration through emails in cases like Shakti Bhog Foods Ltd. V. Kola Shipping Ltd., and Trimex International FZE Ltd. v. Vedanta Aluminium Ltd. Also, In-Grid Corporation of Orissa Ltd. vs. AES Corporation (2002) 7 SCC 736, the Supreme Court explicitly mentions that:
“when an effective consultation can be achieved by resort to electronic media and remote conferencing, it is not necessary that the two persons required to act in consultation with each other must necessarily sit together at one place unless it is the requirement of law or of the ruling contract between the parties”.
Various Government and Private organizations have taken a keen interest in digitalizing the world of ADR in India throughout the decade. There have been a lot of programs and websites that have been formed and initiated. Some of these are as follows: –
- Techno Legal Centre of Excellence for Online Dispute Resolution (ODR) in India (TLCEODRI) was formed in 2005 and has been dealing with ODR related issues ever since. Chittu Nagarajan, co-founder of Modria (which is the most renown ODR platform of the world) started ODR India in 2004.
It is known as the first techno legal law firm of India and is also working on building the ODR India mechanism.
It is Based in Rajiv Gandhi Chandigarh Technology Park in Chandigarh and has Presence in over 90 major cities in India. Its Purpose is to help consumers in filing complaints to Police/Regulatory Agencies and Consumer Court. It is the official Dispute Resolution and Debt Recovery service provider for Google, Yahoo, Pepsi etc.
It was Launched recently on 19th September 2015 and is still in infancy. It Enables users to resolve disputes with anyone in the world through the process of online mediation and negotiation.
It was launched in 2016 and is based in Delhi. Its Prime objective is to resolve the consumer disputes between the Consumer and the Company amicably without litigation. The idea is to represent and assist the Consumers in a professional and credible manner before the Appropriate Authority/Forum/Tribunal dealing with the issue
It is known as the Consumer Online Resource and Empowerment Center(CORE). They provide E-mediation service for consumer complaints It is managed by Consumer Coordination Council (CCC) and supported by the Department of Consumer Affairs, Ministry of Consumer Affairs and Food and Public Administration.
- Online Consumer Mediation Centre
The Online Consumer Mediation Centre (OCMC) aims to provide for a state-of-the-art infrastructure for resolving consumer disputes both through physical as well as online mediation through its platform. The Centre is established at National Law School of India University, Bengaluru under the aegis of Ministry of Consumer Affairs, Government of India.
Alarming Case Pendency: It is common knowledge that India is riddled with an overbearing number of civil and cases. But while the applicability of ODR in criminal shows great promise, its current scope in India is limited to civil cases. The total no. of pending civil cases as on 11/02/2018 in District courts all over India are 80,69,568, and in High courts are 1683230 and total cases in Supreme Court of India, [As on 01.11.2017] are 55,259.
As will be explained in further topics, ODR requires a significant amount of technological development. It can, thus, be seen that if the government wants to test the waters with new ODR programs, it can do so in the technologically advanced cities of India like Delhi, Mumbai and Bengaluru. The statistics of these cities are:
- Delhi- HC 30111+ DC 179299 = 20,410 cases
- Bengaluru- HC 117280 + DC 76362= 1,93,642 cases
- Mumbai- HC 302656 + DC 65936= 3,68,592 cases
Although these hardly come close to 5% of total cases of India, they still will be the most benefiting to start from given that the roadblocks for the same will be considerably less.
Challenges for ODR:
- Mutual consent to adopt such methods is a sine qua non for its being.
- The scope of ODR revolves around ADR methods.
- The legislation for ODR in India is lacking.
- Sensitive disputes relating to constitutional law, criminal law etc. cannot be conducted through such means.
- Limited jurisdiction and varied laws of different lands and parties can still opt for litigation.
- Even the judicial system is not currently fully in favour of this.
- Internet security.
- Technophobia among stakeholders.
- Impartiality and other privacy concerns.
- Infrastructural deficiency in the majority of regions.
- Lack of awareness of basic ADR rights let alone ODR.