ONLINE DISPUTE RESOLUTION
Dhana Eshwar, 16 October, 2020
We are all aware of the present pandemic situation which affected physical court hearings. As an alternative to physical court hearings, online mode hearings have been introduced in the present situation to reduce community transmission of COVID-19. Due to less physical hearings cases are piling up and becoming a burden for courts.
To de-clog, these piled up cases online dispute resolution mechanisms have been proposed by the government and various senior law professionals. But there is a huge problem: all cases can’t be resolved through the online dispute mechanism, it is impossible for serious offence cases to be dealt through online mode.
So, many law professionals suggested that at least medium and minor offence cases should be resolved through this mechanism. It is a huge debatable issue and after considering all the views of professionals the government can take appropriate action on this matter. Let’s discuss and understand the core of this topic.
Description of Online Dispute resolution
ODR(Online Dispute Resolution) is a process to resolve cases by using technology and it is a branch of Alternate Dispute Resolution. ODR is the outside court settlement mechanism.
Alternate Dispute Resolution(ADR) is an alternative to court hearings but with the time ADR itself became complex and expensive. So, ODR is introduced as an alternative to the ADR mechanism in which cases are settled through e-Arbitration, e-Mediation and e-Conciliation.
In the Indian context usage of Online Dispute resolution as a resolution mechanism has a no. of advantages they:-
- Overcome Jurisdiction issues
- Eradicate geographical hurdles
- Administrative policy automation
- Enhance the regulation and productivity of dispute resolution professionals.
- Protects the environment and minimizes the usage of paper in trials.
- Inspires an environment to be liberative not litigative.
- Gives quick, effective and economical solutions to resolve disputes.
- Cultural challenge: This type of challenge is predominantly found in developing nations, especially in India with diverse cultures. In these nations people found a lack of confidence in online activities which results in less participation in this field. Ideas are regulated culturally in an unregulated manner. Government needs to introduce proper schemes to solve this problem.
- ICT Infrastructure challenge: Most important challenge faced by developing nations including India don’t have a sturdy internet infrastructure which is the first and foremost requirement to resolve disputes through ODR. Most of the law professionals found with lack of technological equipment needed for the ODR mechanism.
- Regulatory challenges: There is an admin to create a uniform legal framework for the disputes relating to e-commerce.
- Adaptability to the present scenario: In this type of challenge people face a lack of infrastructure and Low personal computer perforation. Due to expensive internet and broadband connections, it became a barrier to general masses to adapt Online Dispute Resolution.
- Efficiency: As we are all aware that court proceedings are expensive, complex and inaccessible. Therefore, we need a proper platform and software for effective legislation.
- The Economic divide between Developed and developing nations: – Due to globalization, developing countries share the common characteristics of unequally distributed wealth the developed nations have more potential for ODR than the developing and the underdeveloped states which causes a disparity to arise. A perfect ODR system has become a science fiction fantasy for developing and underdeveloped nations.
- “Private ODR and ADR providers need to be added in the system to ensure that online resolution can reach different industries, locations and parts of the country and also support the public institutions.
- Making ODR or ADR voluntary will defeat the purpose so it should be made mandatory(for specified categories) and it should cover about three sessions so that parties don’t feel that it’s a mere formality.
- More recognition should be given to the online redressal processes so that its idea reaches people and they can use these online processes.”
- “In some cases, the consumer may make contact with the merchant to clarify the charge on their card. We encourage open discussion with the consumer to try and reach an amicable settlement before a dispute transaction is processed. If a refund is issued to the consumer, please ensure they provide written evidence of their request to withdraw the dispute claim.
- The banks will ideally wish to see signed evidence to show that the ‘true’ cardholder authorised or participated in the transaction, and/or the relevant authorisation was obtained. To guard against the unauthorised or fraudulent use of credit cards, we recommend appropriate due diligence processes to assess the consumer’s validity before shipping/releasing goods or services.”
Online Dispute Resolution in other legislations:
Following legislation or schemes paved a way for Online Dispute Resolution:-
- Parliament of India passed ‘Pre-Institution Mediation and Settlement Rules’ in terms of Section 21A(2) of Commercial Courts Act.
- Finance Ministry had uncovered the Sabka Vishwas scheme, 2019 (Legacy dispute resolution).
- Reserve Bank of India constituted a high-level committee in May 2019 which submitted a report on ‘Deepening Digital Payments’ in India. The committee was set up in the view of payment systems should move towards using machines, Online Dispute Resolution mechanism for a fast-track resolution of cases.
- Consumer Protection (Mediation) Regulation, 2019 drafted by the National Consumer Dispute Redressal Commission under Consumer Protection Act, 2019.
- Lately, Hon’ble Chief Justice of India S.A. Bobde and His Excellency Ram Nath Kovind emphasized the adoption of Mediation as an instrument for dispute resolution and integration of Artificial Intelligence.
- In the 2020 parliamentary budget session, the Finance Ministry uncovered the Amnesty Scheme ‘Vivad se Vishwas’ for direct taxpayers to resolve appeals through the ODR mechanism.
The key points of this initiative:-
- NITI Aayog brought an initiative in the meeting with Agami and Omidyar Network India for advancing in Online Dispute Resolution in India.
- The theme of the meeting was based on multi-stakeholder agreement to work collaboratively to secure efforts to the lamina of Online dispute Resolution in India.
- ODR was proposed especially for resolving small and medium disputes through digital technology and techniques of Alternate Dispute Resolution i.e. Arbitration, Mediation and Conciliation.
- With efforts of the judiciary, courts are now turning into online hearing courts for resolving disputes but the more effective, scalable and collaborative mechanism to be needed urgently. So, ODR can help in bringing effective and affordable mechanisms.
- In a meeting Senior judges of the Supreme Court, secretaries from key government ministries, leaders of the industry, legal experts, and general counsels of leading enterprises contributed their knowledge, inspected the opportunities and specifics of what lies ahead.
- In India, they adopted the UNCITRAL model of law on International Commercial Arbitration and UNCITRAL conciliation rules. UN General Assembly suggested
By, concluding above all the matter, I just want to create awareness among readers that this Online Dispute Resolution clears so many problems of the judicial process like recording evidence of person living in another state or even country, removes the delay applications filed by parties during the trial by mentioning some reasons, promotes fast-track resolution, removes burden off from the courts etc.
But this concept can only apply for small and medium offences, serious criminal offences cannot be tried using this mechanism; it is an impossible task. Although, it helps in clearing all other cases and removes the burden of courts and clears all pending cases which yet to be tried. Lastly, I want to say that this mechanism will be the life-changing process of our lives.