The primary purpose of ODR is to allow the parties to resolve their dispute with the use of electronic technology. It may occur in “real time” or unroll in an asynchronous manner, depending on the rules of the ODR Provider, as well as the wishes of the parties. Often, this process is more convenient and cost efficient than face to face meetings in order to negotiate, mediate, or otherwise resolve existing disputes.
The actual terms of the agreement that the parties come to can be as broad or as specific as the parties desire, particularly if the matter is concluded at the negotiation or mediation phase. The enforceability of the settlement agreement may depend on the rules and jurisdiction of the ODR Provider, particularly if the dispute is international.
ODR PROCESS
Much depends on the rules of the ODR Provider, and whether or not the ODR component will take place at the negotiation, mediation or adjudication phase.
Generally, the ODR process will begin with contacting the other party to resolve the dispute, either directly or through the ODR Neutral.
● The process of an ODR proceeding may consist of stages including: negotiation; facilitated settlement; and a third (final) stage.
When a claimant submits a notice through the ODR platform to the ODR administrator , the ODR administrator informs the respondent of the existence of the claim and the claimant of the response. The first stage of proceedings — a technology-enabled negotiation — commences, in which the claimant and respondent negotiate directly with one another through the ODR platform.
● If that negotiation process fails (i.e. does not result in a settlement of the claim), the process may move to a second, “facilitated settlement” stage . In that stage of ODR proceedings, the ODR administrator appoints a neutral, who communicates with the parties in an attempt to reach a settlement.
If facilitated settlement fails, a third and final stage of ODR proceedings may commence, in which case the ODR administrator or neutral may inform the parties of the nature of such a stage.
Commencement of ODR proceedings
In order that an ODR proceeding may begin, it is desirable that
the claimant provide to the ODR administrator a notice containing
the following information:
(a) The name and electronic address of the claimant and of
the claimant’s representative (if any) authorized to act for the claimant in the ODR proceedings;
(b) The name and electronic address of the respondent and
of the respondent’s representative (if any) known to the claimant;
(c) The grounds on which the claim is made;
(d) Any solutions proposed to resolve the dispute;
(e) The claimant’s preferred language of proceedings; and
(f) The signature or other means of identification and authentication of the claimant and/or the claimant’s representative.
● ODR proceedings may be deemed to have commenced when, following a claimant’s communication of a notice to the ODR administrator, the ODR administrator notifies the parties that the notice is available at the ODR platform.
● It is desirable that the respondent communicate its response to the ODR administrator within a reasonable time of being notified of the availability of the claimant’s notice on the ODR platform, and that the response include the following elements:
(a) The name and electronic address of the respondent and the respondent’s representative (if any) authorized to act for the respondent in the ODR proceedings;
(b) A response to the grounds on which the claim is made;
(c) Any solutions proposed to resolve the dispute;
(d) The signature or other means of identification and authentication of the respondent and/or the respondent’s representative; and
(e) Notice of any counterclaim containing the grounds on which the counterclaim is made.
● As much as is possible, it is desirable that both the notice and response be accompanied by all documents and other evidence relied upon by each party, or contain references to them. In addition, to the extent that a claimant is pursuing any other legal remedies, it is desirable that such information also be provided with the notice.
Negotiation
The first stage may be a negotiation, conducted between the parties via the ODR platform.
The first stage of proceedings may commence following the communication of the respondent’s response to the ODR platform and:
(a) Notification thereof to the claimant; or
(b) Failing a response, the lapse of a reasonable period of time after the notice has been communicated to the respondent.
It is desirable that, if the negotiation does not result in a settlement within a reasonable period of time, the process proceeds to the next stage.
Facilitated settlement
● The second stage of ODR proceedings may be facilitated settlement, whereby a neutral is appointed and communicates with the parties to try to achieve a settlement.
● That stage may commence if negotiation via the platform fails for any reason (including non-participation or failure to reach a settlement within a reasonable period of time), or where one or both parties to the dispute request to move directly to the next stage of
proceedings.
● Upon commencement of the facilitated settlement stage of proceedings, it is desirable that the ODR administrator appoint a neutral, and notify the parties of that appointment, and provide certain details about the identity of the neutral below.
● In the facilitated settlement stage, it is desirable that the neutral communicate with the parties to try to achieve a settlement.
If a facilitated settlement cannot be achieved within a reasonable period of time, the process may move to a final stage.
Final stage
If the neutral has not succeeded in facilitating the settlement, it is desirable that the ODR administrator or neutral informs the parties of the nature of the final stage, and of the form that it might take.
The concept of ODR in India is at a nascent stage. The NITI Aayog had constituted a high level committee to take it forward and the report of the Committee released on 29.11.2021 inter-alia recovers for mainstreaming of ODR in India, as a cost effective, convenient, efficient process which can be customized to the specific needs of the parties. The Ministry of Law & Justice is taking proactive steps to ensure that the state level initiatives by NITI Aayog are given proper support. In this regard the govt. is giving due support to the Online Dispute Management platforms.