Online Dispute Resolution in India

NITI Aayog recently released a handbook on the Online Dispute Resolution mechanism. ODR has the potential to decentralize, diversify, democratize, and disentangle the justice delivery mechanism in India’s courts.

Present Scenario in India’s Courts & Associated Issues

• The pendency of over 40 million cases in our judicial system remains a focal point for reform and reduction.
• This pendency makes a strong case for online dispute resolution (ODR).
• Nearly a third of these cases have been pending for 3 to 30 years.
• They are pending due to resource-dwindling litigation, case adjudication and difficulty in consensus resolution.
• There are barriers to conflict resolution for the common man, because,
  1. Lack of access to courts and representation, or
  2. Entry-level barriers such as linguistic or technology challenges.
• All of this is routinely brought up by those who are impacted by it.
• With the pandemic disrupting basic services delivery, the discussion is only going to expand in scope and volume.

Online Dispute Resolution During COVID

• Around 40 million cases are pending cases at the Supreme Court, High Courts and district courts.
• This seems more than significant, except that the courts are performing in an exemplary fashion to dispose of cases.
• Around 25 lakh cases were heard virtually by courts across the country in the wake of the Covid-19 pandemic.
• However, the key statistic is that the number of cases filed surpassed the disposal capacity.
• The pandemic has, of course, accelerated this trend.
• Given the escalating pendency, it is important that alternative methods for avoiding, containing and resolving disputes are adopted.
• Access to justice isn’t just about having the means to resolve disputes but also ensuring that the means are efficacious and expeditious.
• Keeping this context in mind, the growing focus on ODR in India is not without reason.

Significance of Online Dispute Resolution and Associated Benefits

• Cost-Effective – ODR has the potential to reduce legal costs. First, by way of reduced time for resolution and second, by doing away with the need for legal advice in the select category of cases
• Convenient and quick dispute resolution – ODR eliminates the need for travel and synchronisation of schedules
• Increased access to justice – As part of India’s commitment and leadership to attain the Sustainable Development Goals adopted by the UN General Assembly in 2015, India is committed to ensuring equal access to justice for all. Since ODR tools such as online negotiation and mediation are premised on mutually arriving at an agreement, they make the dispute resolution process less adversarial and complicated for the parties
• Removes unconscious bias – ODR processes lessen the unconscious bias of the neutral while resolving disputes
• Exploring the massive potential of Online Dispute Resolution (ODR) can enhance the Ease of Doing Business in India
• ODR aligns with the current socio-economic setting.
• It has a global precedent of being extremely successful, and above all, has principles of natural justice in its essence.
• The foundational pillars of any successful ODR regime are trust, convenience and expertise.
• India now has a long legacy of citizens trusting technology, whether in e-payments or in education and healthcare.
• To augment dispute resolution mechanisms, Lok Adalats and Gram Nyalayas have been created as alternative options for affordable justice.
• ODR has significantly large-scale potential for innovation.

Online Dispute Resolution in India

• The origins of ODR can be traced to the evolution of the Internet in the 1990s, which increased online transactions, and thereby disputes related to such transactions.

• The United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985 and the UNCITRAL Conciliation Rules in 1980. In the context of international commercial relations, this Model Law has been recommended by the United Nations General Assembly (UNGA).
• India incorporated these uniform principles of ADR in the Arbitration and Conciliation Act, 1996.

Online Dispute Resolution in India Post COVID-19

• During the ongoing Covid-19 pandemic, the target is to look into Covid-related disputes (most notably in lending, credit, property, commerce and retail) through ODR, which is an important part of the economic revival.
• It will set into motion the use of technology towards efficient and affordable access to justice, especially in post-pandemic times.

Recent Initiatives

Challenges in ensuring Online Dispute Resolution

• Digital literacy – ODR requires a basic level of digital literacy as a prerequisite. In India, digital literacy often varies across age, ethnicity and geography. This digital divide needs to be addressed to ensure that ODR is adopted by society at large and not remain limited to urban areas
• Digital infrastructure – A broad base adoption of ODR will require essential technology infrastructure across the country
• Lack of trust in ODR services – A lot of people in the country do not trust the emerging technology which is a major challenge for the people of India
• Privacy and confidentiality concerns – Greater integration of technology and reduced face-to-face interactions create new challenges for privacy and confidentiality, especially in dispute resolution

Way Forward

• ODR has the potential to raise equity, fairness, access in the dispute resolution ecosystem in India.
• The convenience brought by ODR has been exhibited by e-Lok Adalats conducted in several states, where disputes were resolved simply over WhatsApp audio/video calls.
• Supply-side capabilities could also be enhanced through a relatively large and competent services pool for adjudication and representation.
• ODR has the potential to be an effective alternative that utilises technology to bridge barriers and access in resolution.
• Through facilitating low-cost, technology-augmented, linguistically- friendly and incentivised dispute avoidance, containment and resolution, ODR could enhance justice delivery to all.