Dispute Resolution as a concept is still at a fairly nascent stage in India, especially arbitration which has not kept pace with global developments. Controversial remarks during mediation session have also been centre of attention. In such a setting, both the Courts and the Government have been trying to standardise dispute resolution in India, to unclog the Courts. A major development to make the same accessible has been the provision for Online Dispute Resolution, where Court-mandated and institutional sessions can take place on video-conferencing platforms, making it possible for dispute resolution to happen even when both the parties might not be in town. This originates from the works of Katsh and Rifkin in 2001.

What Is The Government Doing?

In 2021, the National Institute for Transforming India (NITI) Aayog, presented a report titled: “Designing the Future of Dispute Resolution: The ODR Policy Plan for India”. This Report has called for legal reforms, changes towards open and transparent mode of government and investment to improve digital structure. The Report acknowledges the support for ODR by the legal community and states the ODR should be the primary mode for dispute settlement before litigation. It uses terms such as “cost-effective” and “speedy” to describe ODR. The government, in its press release, stated that it had proposed for online mediation under the Mediation Act, 2023, which would be governed by rules laid down by the Mediation Council of India. Further, it has been stressed that a certain category of disputes, such a motor accident claims, cheque bouncing cases, etc., do not necessarily need to go through the courts and be settled through ODR. The formation of e-Lok Adalats is also a major cog in the machinery of ODR, which has helped to reduce some burden upon the Courts.However, in a nation, where the Mediation Act, 2023, was left unused for a year after it was passed, due to non-notification by the government, will ODR really turn out to be that effective in India?

Challenges To Online Dispute Resolution

In India The primary and the most obvious challenge to ODRs is the digital divide in India, with large rural populations lacking digital literacy and access to strong network connections. This was majorly highlighted during the COVID-19 pandemic, where a switch to online court hearings showcased that even urban pockets have been terrorised by shaky network connections. This also jeopardises access to justice as discussed in Swapnil Tripathi v Supreme Court of India. Another major concern is the confidentiality risk posed by conducting online sessions, especially in light of data leaks that have occurred in the past. There is also the problem of complexity in such cases, especially in filing matters, due to technological limitations. A lack of understanding may also exist, because a physical presence makes a huge difference any day, because of lack of body language recognition and difficulty in understanding the technology. There is an absence of standard operating procedures and regulation is a major issue. The SC even stressed that the reason people opt for ad-hoc arbitration over institutional arbitration is lack of proper guidelines. In Indian Oil Corporation v Amritsar Gas Service, the SC highlighted the importance of having well-defined framework for arbitration cases. Algorithmic bias which occurs when machine learning algorithms provide with discriminatory outcomes, often reflecting existing socio-economic, racial and gender biases or even produce new biases is an under-current which can occur due to implementation of AI software in ODR. This has the effect of adversely hampering a fair and impartial decision-making process. The last concern, and one of the bigger concerns is the legality and binding value of ODRs. Whether an ODR carried out and leading to a settlement can be recognised and enforced is a butt of major concern. There still exists uncertainty surrounding the time-periods for ODRs, how will it be conducted, who will preside over it, and also whether there can be scope for hybrid dispute resolution sessions or not. This is perhaps the biggest concerns stopping financial institutions at least, from exploring ODR for loan recovery from non-performing assets (NPAs).

What Can Be Done?

In a paper titled, “ODR: The Future of Dispute Resolution in India” by Vidhi Centre for Legal Policy, the authors the adoption of the Italian ‘opt-out model’, which has already been implemented in multiple nation and has proven to be successful. This model proposes that both the parties along with their counsels, must attend a mandatory mediation session before litigation begins. Subsequent to this, if both the parties agree, then they can continue with mediation, and during the entire process, either parties can ‘opt out’ of the proceedings. Further, sector-wise ODR schemes can be implemented. One good example is Hong Kong, which provides for three-tiered ODR scheme for the MSME sector, where claims amounting up to HK$ 500,000 can be resolved under the scheme, and it further provides for a strict timeline adherence policy and has a very minimal platform usage fee. China also now provides for internet arbitration, whereby a person can access a 24/7 legal telephone service, book an arbitral proceeding by furnishing the requisite documents and start the arbitral proceedings in as less then seven days! This should be coupled with awareness campaigns by the NITI Aayog and the Ministry of Law and Justice, along with collaborations, either through Memorandum of Understanding (MoUs) or through tender-bidding process, with ODR service providers with global recognition. Lawyers and judges both should be trained to understand the technology such as audio-video conferencing tools, e-Filing websites and any Language Models which may be used to facilitate decision-making. Language Models must be coded in a way that it does not show regressive bias. This can be done by omitting information on adverse, maybe patriarchal decisions on such Models. An easy referral mechanism and clear classification of the type of cases fit for ODR must be provided as well. International standards must be incorporated into the ODR scheme and inspiration from sources such as the Technical Notes on Online Dispute Resolution by UNCITRAL can be taken. Further, ODR mechanism must be amended into existing statutes, such as the Arbitration and Conciliation Act, 1996, Mediation Act, 2023 and the Companies Act, 2013. The opt-out model can be amended into the Commercial Courts (Pre-institution Mediation and Settlement) Rules, 2018. Further, better network access to rural areas (and even urban pockets for that matter) will prove to be of immense help for the promotion of ODR. ODR modules must also be incorporated into the course outline for Alternate Dispute Resolution (ADR) paper by the Bar Council of India. Further, law schools must necessarily conduct ODR exercises, such as allowing students to observe and take notes on how real-life ODR sessions take place, apprise the students of the platforms used for ODR and teach them as to why ODR is a better solution than going for litigation. Lastly, ODR should also be incorporated by private dispute resolution forums such as Mediation Council of India, India International Arbitration Centre (IIAC), Delhi International Arbitration Centre (DIAC) and Mumbai Council for International Arbitration (MCIA). ODR must be amended into the institutional rules of these organisations, so that ODR can truly become the norm across all levels of dispute resolution, either court-mandated or private.

Conclusion

ODR can become the foremost forum to resolve disputes. It has the potential to alleviate the pain of heavy litigation costs from the back of the litigants while also easing the Courts from additional small causes which can be resolved without the Court’s intervention. Perhaps, ODR can be the final string to finally remove the Small Causes Courts from the structure, which essentially lie poorly used. Perhaps, ODR can be the final act to make India a leader in commercial dispute resolution and increase the commerciality of the nation as a whole.

**The views and opinions expressed in this blog are solely those of the author**