EXPLORING ONLINE DISPUTE RESOLUTION (ODR)
Sarthak Bharsakale[1]
For some years now, mobile phones and computers with internet have become most ubiquitous communication devices worldwide. Considering the present condition of justice delivery system and the exponential rise of internet users, Online Dispute Resolution (ODR) mechanism offers a plethora of opportunities on how technology may contribute to effective and efficient dispute resolution. Initially, ODR first emerged in the past few years to respond to a growing number of disputes arising out of online activities. But ODR has now started being seen as an online equivalent to alternative dispute resolution (ADR) which falls outside judicial domain. By way of this work, the authors have made an attempt to explore the online dispute resolution mechanism, track the opportunities and also to examine the challenges which lay ahead. Attempt to analyse the legal enforcement of ODR mechanism and the suggestions for ODR’s effective implementation & management has also been briefly discussed.
Alternative Dispute Resolution (ADR) is the use of mechanisms like conciliation, mediation, arbitration and even negotiation for resolution of disputes without the involvement of the state and its judiciary.[2]ADR as a way of dispute resolution was also present in ancient times. Before formation of law Courts in India, people were settling the matters of dispute by themselves by mediation. The mediation was generally supervised by a person of higher status and respect among the villagers and such mediation was called in olden days Panchayat.[3]
While ADR methods have returned to the spotlight over the last few decades, in reality they precede the emergence of our society and civilizations. Today justice dispensing system in India is on twisted road at the one end failure of formal law Courts resulting in backlog of cases, and on the other end ADR fails to get much need public support, under this circumstance it is essential to rethink on the new ways out for coming generation. Accordingly, it is essential in this context to study various forms of ADR, their development, and mode of working of ADR so as to assess it pros, cons and applicability to the pluralistic Society of Indian.
Online dispute resolution, or ODR, is a mechanism for resolving disputes through the use of electronic communications and other information and communication technology. The process may be implemented differently by different administrators of the process, and may evolve over time.[4]The Online Dispute Resolution mechanism seeks to change the way various ADR mechanisms are performed, making them even more accessible through smooth functioning.
ODR Platform
ODR requires a technology-based intermediary unlike offline alternative dispute resolution. ODR proceeding cannot be conducted on an ad hoc basis involving only the parties to a dispute and a neutral, there is a requirement of an administrator. Also, to permit the use of technology to enable a dispute resolution process, an ODR process requires a system for generating, sending, receiving, storing, exchanging or otherwise processing communications in a manner that ensures data security. Such a system is referred to as an ODR platform.
Trail of Opportunities
The Internet provides a promising technological platform for resolving differences. Online Dispute Resolution (ODR) plays a role in many areas of dispute resolution, it has a wide range of Internet sites, scholarly attention, organizations, and conferences dedicated to it. According to many scholars, ODR is an important new form of dispute resolution and is increasingly only gaining popularity. The more we understand ODR and how its settings can influence the resolution process from local to international levels, the better it can be deployed.[5]
The world of online dispute resolution is growing rapidly, and at an accelerating pace, based both upon purely online initiatives and because all mediators and arbitrators are now online mediators and arbitrators. In near future, ODR will become the most effective solution to cross-border e-disputes.[6]
A glaring example from India is that of “ODR ways” which is a team of young minds, committed to bringing reforms to the Indian Justice System and working towards promoting mediation in India through integration with technology. Through this initiative they aim towards making mediation services easily accessible to the common people in India. They have created an online platform having presence in 21 cities across India, with 97 mediators and has 100 plus mediations in less than four months and have become one of the top 12 ADR centres in India with a recognition by the Union Ministry of Law and Justice.[7]
Challenges Ahead
ODR is emerging as a successful platform, but there are still a number of factors that may pose barriers to advancement of ODR and ultimately may affect ODR’s utility. A major problem is that ODR involves basic issues like in person communications prove to be more effective that the computer based communication. A number of advocates of ADR argue that the practice of mediation cannot easily be reproduced in the online environment because cyberspace is not a mirror image of the physical world.[8] Further, some argue that cyber-mediation loses the dynamics of traditional mediation because it takes place at a distance and in front of computer screens, rather than with face-to-face communication. The other issues faced relate with the basic problems involved with cyber space such as poor connectivity and difference in access to quality technological space. Lack of cyber literacy on the part of parties and practitioners may be major impediments to the uptake of ODR. Low acceptance of ODR by consumers may represent the combination of low familiarity with ADR combined with low familiarity with online communication.[9] ODR may be taken up by parties who are comfortable interacting in the virtual environment.
Legal Enforcement
Enforceability of the e-award: Another concern relating to the use of ODR is the enforceability of the online award rendered. Which court should the party approach to enforce the award? Will it be the court of the place where the arbitration agreement was signed? Or will it be the court of the place where the arbitrators were sitting? Or will it be the court of the place where the award was rendered? Or where the ODR institution is physically established? Or where the parties are established? The answer lies in the Arbitration Act itself. Section 36 states that the award will be enforced under the Code of Civil Procedure, 1908 as if it were a decree of the court. As per Section 2(e) of the Act, ‘Court’ means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject matter of a suit. Therefore, the court in which the award will be enforced is dependent on the subject-matter of the arbitration and not on the place where the arbitrator sits or renders the award or where the parties are established.
ODR institutions also offer online ‘Peer Jury’ and ‘Panel Jury’ processes to help in the evaluation and resolution of disputes. In Peer Jury online trials, volunteer jurors select the cases they would like to decide, review the parties’ claims, pose questions and ultimately give their verdicts. The parties receive a summary including the number of votes cast, the median award and a compilation of juror comments. In Panel Jury trials, the parties choose specific jurors. Parties can decide whether the verdict of the jury will be binding on them or not. www.iCourthouse.com is the Internet’s court house.
It is an online courthouse where you can present your disputes for trial before a jury of your peers. The idea is to agree before hand to submit the dispute to iCourthouse where the jury will give its verdict. Filing a regular case at iCourthouse is free. One can present his/her claim and the other side can present his/her defense. Then, the dispute is judged by a Peer Jury, that is any person who wishes to act as a juror on the Internet. There can be any number of jurors. The dispute can also be put forth before a Panel Jury which is selected by the parties themselves. They are given access to the plaintiff’s and defendant’s opening statement, evidence and closing statement. Thereafter, the juror is required to give his/her verdict. One can look at the verdict delivered by the other jurors. The parties can agree whether to count a majority, two thirds, or what proportion of the verdicts will constitute a decision. The trial book shows all the verdicts entered so far, juror comments, and a median verdict. Results are enforceable by agreement5 between the parties. For privacy protection, iCourthouse’s User Agreement and Rules prohibit the use of proper names, or identifying information such as addresses.
Concerns and Suggestions
One the greatest concerns for an ODR institution are whether its services will be accepted at large by the online public. After all, if one is agreeing to arbitrate through an ODR institution, the very thought that the online arbitrator’s decision would be binding on the person and can be enforced as a decree of the court, is in itself very scary. Towards this effort, the American Bar Association Task Force on E-commerce and ADR proposed Guidelines for Recommended Best Practices by ODR Service Providers to assist consumers make an ‘informed and intelligent decision’ and which is very aptly applicable to India as well.[10]
1) Transparency and adequate means of providing information and disclosure.
2) Minimum Basic Disclosures like contact and organizational information, terms and conditions and disclaimers for the service, explanation of services/ ADR processes provided any pre-requisites for use of service like geographical location or membership, etc.
3) Use of Technology and the Online Environment for Dispute Resolution.
4) Costs and Funding: Disclosures as to the up front costs for the process and what portion of the cost each party will bear is necessary.
5) Impartiality
6) Confidentiality, Privacy and Information Security
7) Qualifications and Responsibilities of Neutrals
8) Accountability for ODR Providers and Neutrals
9) Enforcement: ODR institution should disclose the steps they take to ensure quick and complete enforcement of the awards rendered.
10) Jurisdiction and Choice of Law
11) ODR Providers should disclose the jurisdiction where complaints against the ODR Provider can be brought, and any relevant jurisdictional limitations.[11]
Disputes arising out of large international commercial transactions, which constitute the major part of the traditional arbitration caseload, are unlikely to be referred to ODR. These disputes will progressively assimilate IT techniques as a means of improving the management of the arbitration, but will never be entirely online. By contrast, small and medium-sized disputes, including B2B disputes, can very effectively be resolved by way of ODR. There is no reason to restrict ODR to contracts entered into electronically and no reason to limit ODR to disputes submitted to private justice. Some courts already accept online filing and some plan to allow proceedings to be conducted exclusively online.[12]
[1] A 3rd Year B.A. LL.B (Hons.) student at National Law University, Nagpur
[2]. Research Report by Konoorayar Vishnu; Pillai K. N. Chandrasekharan; V. S. Jaya, Alternative Dispute Resolution in India-status/effectiveness study, (2014).
[3]. Shivaraj S. Huchhanavar, IN SEARCH OF TRUE ALTERNATIVE TO EXISTING JUSTICE DISPENSING SYSTEM IN INDIA, Vol. 7, No. 1, NALSAR Law Review.
[4]. http://www.uncitral.org/pdf/english/texts/odr/V1700382_English_Technical_Notes_on_ODR.pdf, (last visited on 20th September, 2018).
[5].http://doj.gov.in/page/online-dispute-resolution-through-mediation-arbitration-conciliation-etc, (last visited on 5thOctober, 2018).
[6]. http://www.oecd.org/internet/consumer/1878940.pdf, (last visited on 1st October, 2018).
[7]. https://odrways.com/domain/about-us.php#0, (last visited on 8th October, 2018).
[8].Eisen, Joel B. “Are We Ready for Mediation in Cyberspace”, Brigham Young University Law Review, Vol. 1998, no. 4 (1998): p. 1305-1358. HeinOnline, https://heinonline.org/HOL/P?h=hein.journals/byulr1998&i=1315.
[9]. https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/online-adr-background-paper.doc, Background Paper on On-line ADR, Secretariat of the National Alternative Dispute Resolution Advisory Council (NADRAC), Commonwealth of Australia, (last visited on 8th October, 2018).
9.Operating Standards for Using IT in International Arbitration (“The Standards”)’ in Using Technology to Resolve Business Disputes, ICC ICArb. Bull. Special Supplement (ICC Publishing, 2004) 75.
10.For a list of existing (and former) ODR providers and further global statistics, see M. Conley Tyler, ‘115 and Counting: The State of ODR 2004’ in M. Conley Tyler, E. Katsh& D. Choi, eds., Proceedings of the Third Annual Forum on Online Dispute Resolution, . For a description of the most significant ODR providers, based on empirical research and interviews with representatives of these institutions, see G. Kaufmann-Kohler & T. Schultz, Online Dispute Resolution: Challenges for Contemporary Justice (The Hague: Kluwer Law International, 2004) at 249–76.
- The cybercourt of the State of Michigan; see L.M. Ponte, ‘The Michigan Cyber Court: A Bold Experiment in the Development of the First Public Virtual Courthouse’ (2002) 4 North Carolina Journal of Law & Technology 51 at 58–67; L.M. Ponte & Th.D. Cavenagh, Cyberjustice: Online Dispute Resolution (ODR) for E-Commerce (New Jersey: Prentice Hall, 2004) at 110–11.