Online Dispute Resolution

Introduction:

Online Dispute Resolution is the resolutions of disputes, particularly small or any medium valued cases, using the digital technology and techniques of the Alternate Dispute Resolution, such as Negotiation, Mediation or Arbitration.

While the courts have started becoming digitized through the efforts of the judiciary, there are more effective, scalable, and collaborative mechanisms of containment and resolution, which were urgently needed. For such situations, this Online Dispute Resolution can help resolve disputes efficiently and affordably. This was specially created for the E-Commerce sector.

Online dispute resolution thus means different things to different people and as such, a straightforward definition as to what this concept means has proven difficult. Many authors have defined Online Dispute Resolution. Online Dispute Resolution has been defined as the resolution of disputes that result from online conduct[1].

Relevance of the Online Dispute Resolution

In giving a simple and precise definition, Morek defined Online Dispute Resolution to mean resolving disputes on the internet[2]. From the definitions given so far, it can be summarized that Online Dispute Resolution is only concerned with internet disputes.

Online Dispute Resolution is a branch of dispute resolution, which uses technology to facilitate the resolution of disputes between parties[3].

Scope of Online Dispute Resolution

Online Dispute Resolution is particularly convenient and efficient where parties are located at a distance; hence, it discards the need to travel since parties can communicate even at a distance. It can be used to resolve internet-related disputes more particularly e-commerce disputes. Use asides disputes arising from online interactions and transactions, Online Dispute Resolution can also for traditional offline disputes[4].

Being a contemporary issue in the Alternate Dispute Resolution community, Online Dispute Resolution has attracted so many authors. Most of these authors have further described Online Dispute Resolution using other names. Some of the names used are[5]:

1. Internet Dispute Resolution (iDR).
2. Electronic Dispute Resolution (eDR).
3. Electronic ADR (eADR).
4. Online ADR (oADR).

Various authors have used the above names interchangeably. However, Online Dispute Resolution has emerged as the most used term in recent years.

Most Significant Initiatives

1. The European Commission is due to publish a Directive on Consumer Alternative Dispute Resolution and a Regulation on Consumer ODR establishing an Online Dispute Resolution Platform by the end of November.[6]
2. UN Commission for International Trade Law (UNCITRAL) Working Group III (Online Dispute Resolution) is drafting procedural rules for ODR to settle disputes arising from e-commerce[7].

History of the Online Dispute Resolution

Online Dispute Resolution was born from the synergy between ADR and ICT, as a method for resolving disputes that were arising online, and for which traditional means of dispute resolution were inefficient or unavailable[8].

Online Dispute Resolution’s origins closely follow the history of digital interactions, particularly commercial transactions. As the volume of interactions increased, so too did the volume of disputes, and a need for redress native to the internet itself.

Courts’ initial engagement with online disputes were more focused on how to resolve online disputes through traditional litigation than on engaging in solutions that utilized technology.

A key step in the development of ODR came through the website eBay[9]. Since 1999, the online marketplace giant has provided an internal system for parties to a transaction to settle their disputes online. Today, that system helps parties resolve over 60 million disputes each year, a number that closely resembles the total annual volume of cases filed in all US civil courts. This sort of capacity demonstrates what Online Dispute Resolution is capable of, both in terms of the number of cases handled, and the ability to empower parties to expeditiously resolve their own disputes[10].

Who can approach the Online Dispute Resolution?

Any citizen can approach the judiciary in case of infringement of his right. However, the Indian judicial system has been plagued with the below-mentioned challenges, which is hampering its function of dispensing timely, cost-effective, and efficient justice:

1.  Lack of use of technology
2. Exorbitant ‘cost of litigation’
3. Insufficient budgetary allocation
4. Complex procedures and inefficiencies
5.  Massive backlog of cases and vacancies

Thus, it has become imperative to adopt quicker, cost-effective, and accessible alternatives to traditional dispute resolution mechanisms. Alternative Disputes Resolution (ADR) and its branch, Online Dispute Resolution (ODR) serve as a viable solution to these challenges.

Usage of the Online Dispute Resolution in India as a Means For Resolving the Disputes

This has a number of benefits, especially in the context of the Indian scenario. Here are a few mentions:

1. Overcomes jurisdictional issues
2.  Eliminates geographical barriers
3.  Automation of administrative procedures
4.  Improves the efficiency and productivity of dispute resolution professionals
5.  Eco-friendly process as paper-based trial is minimized
6.  Encourages an environment that is liberating and not litigation
7.  Delivers a quick, economical and effective solution to disputes

International Perspective

The Online Dispute Resolution (ODR) refers to a broad and flexible set of systems that are meant to integrate technology into various approaches towards and steps of the dispute resolution process. These processes and programs are proliferating, including in court systems, with an established precedent internationally in countries such as the UK, the Netherlands, and Canada, and increasing adoption stateside. Software companies and courts are developing online platforms in 25 countries and ODR is currently resolving millions of e-commerce, insurance, auto accident, domain name, online gaming, property tax, and “sharing economy” customer disputes each year[11].

Pros and Cons

Digital technology has boosted efficiencies and reduced costs in many industries during the past few decades. However, there may be some residual reticence about Online Dispute Resolution in the legal field, not least because of concerns regarding the dehumanization of human-centric processes.

While there are clear safety and timesaving advantages offered by Online Dispute Resolution, there are several risks and disadvantages to be considered[12]:

1. Risks to confidentiality when using third-party applications
2. An inability for technology to handle the varying complexity of legal cases.
3. Difficulty for the advocate, arbiter and mediator in building rapport with parties
4. Drawbacks of not appearing in person, including less fluid discussions, less engagement or strategic discussion of issues, more difficulty in reading body language
5. Absences of human insight and empathy
6. Disadvantages for those who are not tech-savvy
7. Lack of accountability, regulation and guidelines
8. The potential for algorithmic bias

Present Scenario

In the present scenario, we must realize that the Online Dispute Resolution mechanism cannot be kept aloof from court procedures, since various jurisdictions across the globe are increasingly adapting to technological advancements to enhance access to justice.

Today, Online Dispute Resolution is regarded as a significant ingredient in the evolution of the legal paradigm[13]. The application of ODR in courts as well as in the field of ADR can prove to be instrumental since technology can make the dispute resolution processes comparatively more accessible, faster, and affordable[14].

Conclusion

Trade, investment, industrial policy, and promotion are the backbone of an economic superpower, but India’s progress is being weighed down due to lack of conflict management creativity and an overburdened court machinery. While it is commendable to witness these momentous steps to promote Alternate Dispute Resolution (ADR) in our country, infusion of technology will only speed up the disposal of cases and help us create a conducive environment for commercial and overall growth.

Today, there are millions of people in the remotest of our cities, towns, and villages who have no access to justice, but they do have access to smartphones. With the help of technology, we can improve the access to justice significantly and bring equity at the fingertips of every Indian irrespective of their location. Promoting a technology-enabled dispute resolution system will not only help the litigants but will also help in easing the burden and improving the efficiency of the Indian legal ecosystem.

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References:

[1] Gralf-Peter G, 2003, Online Dispute Resolution: Consumer Redress in Global Market place. Vol 7 No.8 German Law Journal 647 at p. 651.

[2] Rafal M., 2005, Regulation of Online Dispute Resolution: Between Law and Technology, Available at (https://heinonline.org/HOL/LandingPage?handle=hein.journals/utol38&div=17&id=&page=). (Last visited on 7th August 2020)

[3] Petrauskas F and Kybartiene E. 2011, Online Dispute Resolution in Consumer Disputes. Available at http://www.mruni.eu/en/mokslo_darbai/jurisprudencija/ (last visited on 27th August 2020). p.922

[4] “Traditional offline dispute refers to disputes that do not occur online.

[5] Petrauskas F. and Kybartiene E. (online Edition), op.cit. at p. 928

[6] Digital Agenda for Europe COM (2010)245 p. 13, and Green Paper on ADR (2001) and Responses at  http://ec.europa.eu/consumers/redress_cons/adr_en.htm#consultation

[7] A/CN.9/WG.III/WP.109 – Online dispute resolution for cross-border electronic commerce transactions: draft procedural rules. Available at http://www.uncitral.org/uncitral/commission/working_groups/3Online_Dispute_Resolution.html

[8] E. Katsh, and J. Rifkin, J. Online Dispute Resolution: Resolving Conflicts in Cyberspace (San Francisco, Jossey-Bass, 2001).

[9] Rule, Colin, “Designing a Global Online Dispute Resolution System: Lessons Learned from eBay,” 13.2 U. of St. Thomas L.J. 353 (2017).

[10] Resolutions Systems Institutions, History of ODR, (https://www.aboutrsi.org/special-topics/online-dispute-resolution#ODR-history), (last visited on 28^th August 2020).

[11] ADR-ODR and Conflict Resolution Skills Committee, Subcommittee on Online Dispute Resolution.

[12] When You Cannot Meet in Court: Pros and Cons of Online Dispute Resolution- Alternative Dispute Resolution During the Coronavirus Crisis. (https://www.lexisnexis.com.au/en/COVID19/blogs-and-articles/when-you-cant-meet-in-court-online-alternative-dispute-resolution-during-coronavirus-covid19), (last visited on 28th August 2020)

[13] Richard Susskind, the End of Lawyers? Rethinking the Nature of Legal Services 99 (2008)

[14] Ayelet Sela, Can Computers be fair: How automated and human-powered online dispute resolution affect procedural justice in mediation and arbitration, 33(1) Ohio State Journal on Dispute Resolution 91, 97 (2018).