Blog Details

Author - Bhaven Shah & Mehak Vohra

The human race could never have imagined the devastating impact of a virus that has managed to bring majority of nations across the world, their citizens and their economies to a grinding halt. This deadly virus spared none and even managed to knock the doors of our judicial system, and drove us to categorize ‘essential’ to urgent and non-urgent issues. 

The Supreme Court, in order to avoid the spread of the virus in court premises, advised higher and lower judiciary to peruse video conferencing for judicial proceedings. Essentially the use of digital technology has been given a thrust in these difficult times and perhaps will become the new norm in the post-corona era. 

Though the courts are technically closed, new cases continue to be filed electronically, adding to India’s already overburdened judicial system. While there is an ongoing debate as to whether courts should be considered ‘essential’ or not, one thing is certain – in times of crisis, the judicial machinery is what can bring calm to the chaos. The term ‘urgent’ is, however, very subjective – what is imperative to one may be irrelevant to another. In such scenarios, wouldn’t it be better if justice is continued to be served without necessarily dropping issues into urgent and non-urgent buckets? 

Can we not imagine a society that embraces online dispute resolution (‘ODR’) systems that use mediation and arbitration to aid the traditional bar, bench and court trio, and unburden the load not only during the lockdown but even after things start to normalize? While none of us need to revisit the benefits of alternative dispute resolution (‘ADR’) mechanisms, what we need to reflect on is the adoption of technology to make dispute resolution accessible, convenient and systematized. 

We, humans, have an inherent quality to be able to adapt to changing circumstances and equip ourselves suitably. Even though the concept of ODR is not novel and has been in existence since the advent of information and communication technology, its importance has only been realized in such times of health and humanitarian crises. ODR gives governments, institutions, corporates and the common man a new venue for resolving disputes, and as we gear up for unseen, extraordinary circumstances that are most likely beyond our preparedness, we must rise to the occasion and incorporate these novel ways to beat the likes of this novel virus. Afterall, humanity is stronger than anything that has ever challenged it.

The use of ODR has been colossal in countries like UK, USA, Canada and China. But the rise of online resolution in India has been snail paced and the experts are still talking about it more than its actual use. The traditional justice system regard ODR as niche area with limited relevance but that idea seems to change as we step into the third decade of the existence of ODR around the globe and in the third week of this contactless society.

The Supreme Court of India, in Meters and Instruments Private Limited and anr. v. Kanchan Mehta, (2018) 1 SCC 560 observed that “Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There appears to be need to consider categories of cases which can be partly or entirely concluded "online" without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated.”

Justice D. Y. Chandrachud, Chairperson of the Supreme Court E-Committee, while reviewing the measures taken by High Courts for hearings during the lockdown, stated that “the use of technology must be institutionalized even after the lockdown is lifted and normalcy returns.”

Chief Justice of India S. A. Bobde too has stressed on the need of integrating artificial intelligence in judicial processes.

With a strong anchor found in its guiding principles created through the collective wisdom of many organizations around the world, ODR is likely to become an integral part of our justice delivery system even after we curb the damaging effects of the virus. Accessibility, affordability, transparency, fairness, innovation and relevance top the list of the fundamental dimensions of ODR. The spirit of confidentiality and privacy controls the movement of dispute-related information amongst the parties and a principle-based approach towards decision-making encourages trustworthy outcomes. 

These principles provide adequate flexibility to cope with the demands of modern society, without harming the underlying characteristics of each principle. The understanding of these dimensions allows us to uncover various opportunities available to serve stakeholders and offer best quality solutions. These principles, therefore, promise greater support to an ideal ecosystem which requires less time, less money and more efficiency. 

China, being widely affected by the pandemic, is encouraging its enterprises to bolster their ODR capabilities with a view to bring the economy back on track and to deal with the upswing in disputes arising out of complications due to the pandemic. The Chinese government has urged its citizens to opt for online mediation and arbitration in light of stringent government restrictions on the movement of people. While we may blame China for creating, curating and cultivating the virus, we must extract the method of containing, curbing and curing its impact on health, the economy and most importantly, the future of humanity.  

Prime Minister Narendra Modi prepared us for a 21-day lockdown with a self-imposed Janta Curfew and while, most of us have conditioned ourselves to be productive while working from home, we may want to explore and experience the benefits of ‘resolving from home’. In such times, ODR can perhaps be regarded as amicus curiae and allow governments to govern, courts to dispense justice, businesses to flourish and our fellow citizens to enjoy a stress-free life.

Co-author Bhaven Shah is a co-founder of Presolv360 – a legal-tech company that specializes in online commercial dispute resolution. With an academic background in finance and law, he has a decade of experience in understanding law, human relations and conflict resolution.

Co-author Mehak Vohra is a Research Scholar at the Law Department of Manipal University Jaipur. She completed her LL.M in business laws from ILS Law College, Pune. She keeps keen interest in research of Indian Legal System and emerging trends.