ABSTRACT

With the growth of technology and e-commerce, new aspects of disputes with diverse nature, have surfaced the virtual world. These cultural, political, social and commercial disputes or conflicts, often involve parties or individuals that belong to different jurisdictions or territories. The disputes could arise between individuals of different State as well. In such a scenario, the Courts of another jurisdiction are way off the reach, for the individual of another territory.

The Online Dispute resolution (ODR) neutralises the situation for both the parties, by making a software or the application of it, as the third component and to conduct this online, seems to be a practical and viable solution in such a case. It is essentially a dispute resolution process, which utilises network based, Information Communication technology (ICT) to resolve disputes. It is the substitute for the traditional method of face to face dispute resolution, like processes such as arbitration, negotiation or mediation.

INTRODUCTION 

At the beginning, the Online Dispute Resolution process only aimed at focussing towards providing us, the online dispute resolution platform but where, the actual mediators were humans that solve the disputes and conflicts. Though, the idea of ODR was a new one but, the concept and application of it, was very similar to the traditional approaches of dispute resolution.

However, the concept of Online Dispute Resolution outgrew its initial model and was transformed to a system, which solves all kinds of disputes arising in the community, through the mode of technology or the online applications. The function of the ODR modified to such system, that combined the dispute resolution with the scope of prevention of disputes later as well.

The virtual world of Cyberspace is well acknowledged by everyone and the internet is the best preferred means, for interaction globally[1]. In such a world, contrary to the conventional methods of litigation, the ODR is the best option that provides a practicable solution. The parties or individuals involved in this ODR process, have to submit the required or estimated amount online, which is promised to be kept confidential.

The independent regulations and rules of the ODR service provider may be changed or applied to the request of an independent judge’s panel, by the parties for settling their disputes. Also, there is no permanent system or prescribed method yet, for reporting the number of individuals that are currently using the ODR. Similarly, there is no record or lists of the system, that offer the online method for reporting disputes.

PROCEDURE OF THE ODR

The procedure of ODR entails the e-documents, where parties may use encryption, electric signatures, to ensure security and safeguard integrity of all the documents and payment transactions details. Generally, the individuals or parties of the case, prefer a structured and clear process, of dispute resolution. This process is definite and simple as well, institutions like WIPO, ICC and many others have established provisions of online dispute resolution through mediation and other methods.

If the respondent consents to take the part in the process, he has to submit a detailed set of his replies. Whereas, the complainant, who files the complaint seek the remedies, to get compensation. The dispute resolution process, may or may not include oral hearing via video conferencing or telephonic conversation. There may be a possibility, where automated software resolves the dispute and there is no need of appointing a third party.

The most important components required for application of the ODR are existence of advanced technology, user friendly interface, trained professionals and above all, the maintenance of privacy and security of information of the disputants. With the principles of infrastructure, affordability, accessibility, expertise, trust and convenience, it tries to attract more users and services over time. Unlike the other ADR processes, ODR sought to present, as a tool to ‘real world setting’ with more efficiency.

SUPPORT FROM INDIAN LEGAL SYSTEM

The Indian legal framework has its support to the ODR process, from Section 89 of the Code of Civil Procedure, 1908, that promotes the dispute resolution between parties and alternative ways for it. Whereas, the Section 5 of the Information Technology Act, 2000 permits legal recognition of the use of electronic signatures and e-records.

Rules 1A to 1C of Order10, were inserted that made the Courts settle with one or other Alternative Dispute Resolution (ADR) methods, for settlements, when called upon for resolution by the parties[2]. The Section 7(3) of the Arbitration Act provides that agreement must be in writing but, if both parties agree to the arbitration dispute resolution by ODR service provider, it will be considered valid, in the court of law.

In the case of State of Maharashtra vs. Dr. Praful B. Desai [3], the Supreme Court held that the Video Conferencing will be an acceptable method and source of recording evidence, for the testimony of the witness. The Supreme Court in the case, Grid Corporation of Orissa Ltd. vs. AES Corporation [4], held that if an successful and effective consultation can be achieved through the electronic resources and modes like video conferencing etc. then, both the parties may not be required to sit together, at the same place, unless it’s a case where this may be the requirement of the law or such ruling contract, as between the parties.

So, both the legal framework and the precedents laid by the Supreme Court of India, are in support of the use of online community, that is the technology for the resolution of disputes. As a matter of fact, they encourage the use of Online Dispute Resolution (ODR) processes for such cases. Thus, this is a more approachable and time efficient source, when compared to the traditional methods of litigation.

CHALLENGES IN IMPLEMENTATION OF ODR

The paramount concerns of the parties for confidentiality and securing data protection, continues to grow. And, not all the individuals are technologically equipped, this may result as a big hindrance for the growth of the ODR processes. Critics may hold these points, against the aspect of ODR. Also, the challenge is the usage of language, in the ODR platforms. Currently, most ODR service platforms use English but, for the non-speakers, it can be difficult to express the accurate information and avoiding miscommunication.

Another barrier could be the bridge of communication between the parties and the mediator. The ODR with text based mediation and arbitration, may make it easy for the mediators but takes a lot time for accessing. Another question of concern, for the ODR is the enforceability of these online arbitration processes and their outcomes. The jurisdiction of these ODR providers are not fixed and hence, people question the safety and security of their information, which is entrusted to them. 

Even the most well operated and highly designed ODR system, cannot eliminate the digital divide between the different sections of people in society. Though, the ODR platforms provide us with many opportunities, that try to increase the access rate of justice. But, there will always be the high needs of the justice users, with limited capacity of interaction, no matter which form of justice they opt for.

SCOPE OF ODR [5]

India has restricted its support to the ODR process in a limited way. When it comes to the disputes related to e-commerce, online transactions and online shopping, India is moving gradually in accepting the possibility of the ODR as the method of resolution. Since the beginning of the 21^st century, the applicability and dimension of internet has grown, at a high rate with results of rapid evolution. ODR has a long lasting impact, when it comes to fast and effective manner, to the disposal of dispute cases.

 Various new subject areas such as labour law, telecommunication law are being added to the ODR process, to increase its scope of applicability. The ODR process promises to enable ADR, to become more fast, efficient and less cost effecting. It is mandatory to refer to the regulations, regarding the alternative methods of dispute resolution, to completely analyse the legal grounds in the cases. However, if any non-binding ODR is successful then, it leads to a successful binding of a contract of settlement, between the parties that will be enforceable in the court of law.

In case of the ODR mechanisms, the technology plays a vital role, in establishing its effectiveness. Each ODR may use a different system of technology, to analyse the individualizing and giving course for the dispute. Thus, ODR is also recognised by the International organisations as well. The European Union (EU) focusses on the methods of alternative dispute resolution. The European Commission regulated its own ODR platform, which has been in operation since 2016 [6].

This new methods of alternative dispute resolution by the way of internet has gained popularity, in the countries like U.S.A, Europe and international guidelines support for the future ODR is remarkably exceptional. Thus, ODR will soon, become the way of arbitration for the entire world and the necessity for every disputant. With respect to India, the growth of technology and the trends of arbitration, have rapidly grown since the past few years.

CONCLUSION

In order to make the ODR process more appealing for the general people, the need is to first establish a connection with the people through the online community. By making them aware of the advantages and applications of the ODR process, it changes the regular way of dispute resolution for them. By including information communication technology, the online community will help the ODR, to change its way and overcome its shortcomings. It can be used in cases, where there is a default or damages in the payment method, in the dispute.

All the benefits of ODR must be communicated to the general public. Overall, the ODR is capable to resolve the real disputes, in a cost effective manner. It saves more time than the traditional dispute redressal method, which is now equipped with online technology, for a better resolution method. Through ODR, the tools for identifying options and the interests, now work in a faster and convenient manner. This process is not restricted to online disputes only, it supports the mediators and arbitrators as well, by providing them with an automated program.

The legal maxim ‘Justice delayed is justice denied’ means that if the justice is administered in more time then, it is equivalent to justice not served at all. The delay in the procedure of justice, has high costs of pitfalls. It results in the loss of faith and believe, of the people in the administration of Justice by the Indian judicial system. Thus, these alternative dispute resolution methods are fast and far better, than the traditional rigid methods, in solving disputes effectively.

REFERENCES

·          BIBLIOGRAPHY Bar and Bench: https://www.barandbench.com/columns/is-online-dispute-resolution-the-need-of-the-hour

·         M.S. Abdel Wahab, E. K. ; Online dispute resolution: Theory and practice. Eleven International Publishing, Hague (2012).

·         Mania, K. ; Online dispute resolution: The future of justice.

·         Mehta, S. ;  Is Online Dispute Resolution the need of the hour?

·         Rastogi, A. ; Online Dispute Resolution. LawTimesJournal.

·         Seth, K. ;  Online Dispute Resolution. 16.

•  http://www.legalserviceindia.com/legal/article-839-online-dispute-resolution-mechanism-prospects-and-challenges-in-india.html

•      https://www.scl.org/articles/3197-addressing-new-challenges-to-odr-implementation#:~:text=Issues%20around%20identity%2C%20confidentiality%2C%20privacy,to%20embrace%20the%20online%20world.