The world has witnessed a pandemic and the conditions are far from being normal even in the near future. The administration of justice in India has a history of being delayed and the coronavirus has made the situation even worse. Although the Supreme Court has allowed the online filling and hearing of cases, one cannot neglect the fact that the judiciary is already overburdened with tons of cases. An improvised and efficient solution is required to ease pressure on courts and the answer to this can be Online Dispute Resolution or ODR.
Court-related Online Dispute Resolution (ODR) is a public facing digital space in which parties can convene to resolve their dispute or case. This definition of court-related ODR can encompass a variety of methods and tools to assist in dispute resolution.
In simple words, ODR (also known as Online Dispute Resolution) refers to a dispute resolution mechanism that involves technology to resolve the dispute between parties. The term covers disputes that are partially or fully settled over the Internet, having been initiated in cyberspace but with a source outside it (offline) (Abdel Wahab, Katsh, & Rainey, 2012).
However, the concept of ODR is still in its embryonic stage. The United Nations Commission on International Trade Law ODR Working Group defines ODR as “ a mechanism for resolving disputes facilitated through the use of electronic communications and other information and communication technology”.[1]
There is no clear legal definition as to what falls under ODR. According to some sources, ODR is ADR conducted through electronic means. And some others say there is no difference between ADR and ODR[2]. However, as per the Draft report by NITI Aayog Committee on ODR, ODR should not be limited to the integration of ICT in ADR. It should also include intelligent decision support systems, smart negotiation tools, automated resolution, and machine learning[3].
There are three main types of dispute classifications within the ODR framework:
Business to Business (B2B)
Business to Business (B2B) disputes revolve around two commercial parties that are seeking to resolve a dispute over a specific transaction. The parties in B2B tend to be sophisticated users, and there is generally less concern over party vulnerability, and a greater emphasis placed on the convenience and expertise of the process. With many B2B disputes resolved with some form of ODR, the use of arbitration is prevalent.
Business to Consumer (B2C)
Business to Consumer (B2C) disputes are becoming more common, particular with the expansion of e-commerce. B2C disputes tend to be low-cost, but high-volume, and may involve unequal bargaining power between the consumer and the business. An ODR process may meet consumers’ need for redress against businesses and to provide the necessary support for due process rights.[6]
Consumer to Consumer (C2C)
Consumer to consumer (C2C) disputes involve transactions between two consumers (i.e. the sale of a used item). These types of e-commerce transactions are also becoming more common with websites such as eBay or Craigslist acting as facilitators between two parties, although the website is not an actual party to the dispute.
There are 3 essential components that differentiate court-related ODR from other forms of technology-supported dispute resolution [4]:
The first is that the program operates exclusively online. In contrast to other court programs that provide an online interface with which to accomplish discrete tasks (e.g., e-filing, video hearings), ODR users do not otherwise interact with the court for traditional in-court procedures or events.
The second is that the program is explicitly designed to assist litigants in resolving their dispute or case, rather than a technology platform to support judicial or court staff decision-making. Dispute resolution inherently includes the potential to challenge the validity of claims or to raise affirmative defenses; court-related ODR is not merely a platform for defendants to negotiate a payment schedule to satisfy debts.
Third, the program is hosted or supported by the judicial branch. It is not a form of private ADR, but instead integrates and extends dispute resolution services offered by the judicial branch into digital space to serve citizens efficiently, effectively, transparently, and fairly.
ODR Methods
Online Dispute Resolution can be seen as an online equivalent of ADR as it primarily involves the use of negotiation, mediation or arbitration for dispute resolution. But the main difference between them is that every practicable method of ODR is unique and efficient to itself and the beauty of ODR is that it can be tailored as per the needs of the parties.
1. Synchronous ODR is a method of dispute resolution where the parties communicate with each other in real-time by using various video-conferencing applications.
2. Asynchronous form is where communication is not conducted in real-time but via email or other such communication applications.
3. Online Mediation is coming out to be the most favorable form of dispute resolution with nearly 70% of ODR platforms using the same to reach a conclusion. Typically online mediation starts with sending an email to parties that contain basic information about the proceedings followed by virtual meetings to be conducted in the chat rooms.
4. Electronic Arbitration is a less popular method of online dispute resolution but it covers-up the process up to a certain extent.
Conclusion
ODR mechanism being simple and effective has the potential to come into mainstream dispute resolution systems and the acceptance of it cannot be called into question. In the near future, ODR will not only serve as a platform for quick disposal of cases but also as an area of employment for thousands of arbitrators or advocates.
Globally ODR witnessed a boom with the e-commerce sector. Countries like the U.S.A, China, Brazil and some European Union nations have already adopted the ODR mechanism by constituting their separate platforms to resolve disputes arising out of e-commerce transactions. Millions of disputes have already been dealt with successfully without even filing a single suit in a traditional court of law and it is certain that ODR will come up with new and more desirable techniques.
In India, ODR is still in its infancy stage but it is just a matter of time before ODR is adopted at a large scale in India. The electronic form of dispute resolution tries to enable new possibilities that were previously unavailable such as the virtual simultaneous presence of all the parties without needing personal attendance at a particular place and time. With millions of cases pending in high courts and district courts and thousands of backlogs in the top 5 central tribunals, without a doubt we are in need of more and more ODR platforms and to come up to the rescue.
[1] United Nations Commission on International Trade Law,
‘UNCITRAL Technical Notes on Online Dispute Resolution’ (2017)
<https://www.uncitral.org/pdf/english/texts/odr/V1700382_English_Technical_Notes_on_ODR.pdf
> accessed 01 December 2020
[2] Colin Rule paper on ODR
[3] NITI Aayog pg 9