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According to the e-Courts website, there are about 49.15 million cases waiting before the District Judiciary and 5.46 million cases pending before the High Courts. Similarly, tribunals created to use specialised knowledge for technical topics and relieve courts of their obligations are plagued by their own problems, causing further delays in conflict resolution. Alternative Dispute Resolution (ADR) procedures, such as arbitration, mediation, conciliation, and Lok Adalats, which were viewed as solutions to real issues affecting India's traditional court system, have struggled to take off on a broader scale, despite some success. 

Furthermore, the COVID-19 pandemic and the resultant necessity for social distancing measures have caused all the foregoing modalities of dispute resolution to operate at sub-optimal capacities, worsening the difficulties already present. The way forward is to use technology to modify the dispute resolution ecosystem so that it can adapt to shifting justice needs. Online Dispute Resolution (“ODR”) or mechanism of electronic alternative dispute resolution (e-ADR) has been at the vanguard of this global shift. 

Online Dispute Resolution in simple terms is the use of technology to resolve disputes outside of the public court system without litigation through means such as video conferencing for hearings or by sharing electronic document for filing. It is cost effective, paperless, convenient, and quick thereby improving the ease of doing business.

Going through the Niti Aayog report on ODR Policy, Designing the Future of Dispute Resolution – The ODR Policy Plan for India, it can be contended that mainstreaming ODR in India is the way of the future for conflict resolution in India. It also considers how to improve ADR in the country as a precondition for a strong ODR system. The analysis is the capstone of an implementation strategy developed by a committee led by Supreme Court Justice (Retd) A.K. Sikri and formed at the height of the Covid-19 crises. The report further adds that using arbitration, mediation, and negotiation, ODR aims to resolve issues outside of the judicial system. 

ODR refers to the use of ICT technologies to assist parties in resolving disputes. This covers the use of simple to complex communication technologies with the goal of enabling conflict settlement without the parties physically gathering. ODR can make use of AI/ML-powered technological tools such as automated dispute resolution, script-based solutions, and curated platforms that cater to certain types of disputes. The mere setting of dates through email or the exchange of documents via the internet does not qualify as ODR. ODR differs from virtual courts. ODR is the use of ICT tools outside the court system.

ODR, on the other hand, should not be interpreted as only e-ADR. At a later point, ODR can act as a fourth party by utilising algorithmic aid tools that assist parties in reaching a resolution. Intelligent decision support systems, clever negotiating tools, automated resolution, and machine learning are examples of such technologies.

ODR is a low-cost method of resolving disputes. It also provides a speedier and more comfortable mechanism for resolving disputes, ODR can reduce delays created by an overburdened judicial system. For specific types of disputes, ODR can provide multi-door dispute resolution through a curated and tailored procedure.   As a result, the dispute resolution procedure may become more cost efficient and comfortable for the user. ODR Limits the impact of implicit bias generated by human judgement. ODR allows parties to exercise their rights and explore paths that they would not have taken otherwise due to the lengthy and expensive nature of litigation and, to a lesser extent, ADR. As a result, it has the potential to be one of the methods for increasing access to justice.

INTERNATIONAL EXPERIENCE

What is, however, certain is that our conceptions of normal are vastly changing. In the dispute resolution ecosystem, ODR is that change. ODR is the future, and that future is now.

ODR platforms have shown to be beneficial not just in resolving disputes originating from online transactions, but also in settling traditional conflicts such as labour disputes, tenancy disputes, and so on. The ODR Platforms can be divided under three categories:

Government ODR Platforms: 

Platforms developed by Government Departments to guarantee effective dispute resolution have shown to be useful in offering quick and cost-effective conflict resolution, particularly for consumer and labour issues.

Court-annexed ODR Platforms:

Building ODR capacity in court annexed platforms fosters a symbiotic relationship between ODR and the judiciary, with ODR receiving legitimacy as a result of the cooperation, and the judiciary benefiting from lower caseloads since conflicts are addressed outside of the official court system.

Private ODR Platforms: 

This category comprises private ODR service providers as well as platforms developed by private firms, such as e-commerce entities, to settle disputes that arise during their operation.

The three major themes for trends that are rising all across the world that might be used as a starting point for India include:

1. Structure and models of ODR

There are also other trends in how ODR has been structured or modelled. Tiered dispute resolution models provide disputing parties an alternate ODR solution if the previous ODR procedure fails to produce a resolution. The components of these tiered models, however, differ between ODR institutions. These models filter conflicts via several ODR procedures and provide an end-to-end solution for dispute resolution.

The purpose of ODR tools is to augment existing dispute resolution processes rather than to totally replace them. A hybrid dispute resolution model, based on this idea, reinforces existing offline dispute resolution methods while also creating ODR alternatives for enhanced efficiency and access. 

Consumer disputes are one of the most appropriate types of conflicts for which ODR may be used. To that purpose, the governments of Brazil, Mexico, and the European Commission, among others, have created specialised government-run ODR platforms to facilitate fast consumer dispute resolution.

2. Role of private sector

There is a rise in private players adopting ODR as private businesses, particularly those in e-commerce and other internet-based industries, are increasingly turning to ODR to save time and money in resolving disputes that arise during the course of their operations. The platform also informs the businesses about the problems faced by the consumer to build a healthy and safe marketplace.

Many government-run and court-annexed ODR Platforms have collaborated with private ODR service providers and incorporated off-the-shelf technological solutions to create a comprehensive ODR framework and such collaborations have been proved to be very successful.

3. Good Practises in ODR mechanisms

It is to be noted that Education and evaluation is the preliminary stage of ODR.  It is intended to inform users about their claims and potential defences. Some of the key needs that independent platform must fulfil to establish trust in the ODR procedures are cyber security and the protection of documents supplied to the platform and during virtual proceedings.

It is critical to establish clarity on the enforcement of final agreements since defining ways of enforceability of ODR agreements has been repeatedly mentioned as a fundamental difficulty that an ODR framework would have to address.

PRESENT STATUS IN INDIA

Interestingly, in developing countries like India, the existing ecology and readiness have been highly encouraging. Executive readiness, in the shape of Government Departments and Ministries, has also been a driving force.

It can be seen through the development the SAMADHAN portal, with facilities for e-filing and online settlement of Micro and Small Enterprises’ (MSE) dues against Public Sector Enterprises, Union Ministries, Departments and State Governments, the Draft National e-Commerce Policy which was issued by the Department for Promotion of Industry and Internal Trade (DPIIT).

The legislative preparedness can be seen through the enactment of Arbitration and Conciliation (Amendment) Acts of 2020 and 2019,  the Commercial Courts Act, 2015  which introduced mandatory pre-litigation mediation unless a party requires an urgent interim relief, Insolvency and Bankruptcy Board of India (Model Bye-Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 which establishes Establish Grievance Redressal Committee that receives complaints against the members of the Agency and attempts redressal through mediation, The Indian Evidence Act, 1872 also now recognises the electronic evidence and provides conditions for its admissibility.

In addition to the executive and legislative, the judiciary has developed an enabling environment for ODR in India through its judgements and practises. The courts legitimised similar initiatives in ADR procedures through growing dependence on ICT in judicial proceedings and explicit acknowledgement of the necessity for technological solutions to meet judicial system difficulties. The following measures demonstrate the judiciary's preparedness to implement ODR.

1. E-Courts Mission Mode Project

2. Support through judicial pronouncements for instance Recognition of online arbitration, recognition of video conferencing, expansion of disputes that are arbitrable, recognition of electronic summons etc

CHALLENGES FACED IN ADOPTION OF ODR

While the future looks hopeful, there are still many obstacles to conquer along the road. The various challenges that have been includes the

1. Structural changes which include lack of digital infrastructure, lack of digital literacy, divide in access to technology.

2. Behavioural changes which include within its ambit lack of awareness regarding ODR, lack of trust in ODR services, role of the government and the PSUs - Adoption of ODR would be a key step in boosting confidence in the process.

3. Operational challenges which include privacy and confidentiality concerns, archaic legal processes, uncertainty regarding enforcement of ODR outcomes etc

RECOMMENDATIONS

Making ODR a reality will require coordinated efforts from all stakeholders. The recommendations listed below can assist in resolving these seemingly large difficulties through innovative solutions: - 

1. VIRTUALIZATION OF LEGAL PROCEDURES

To amend the Indian Oaths Act, 1969 and introduce provisions permitting online oath taking and affirmation of pleadings thereby not requiring physical presence of witnesses during the trial. 

Introduce provisions in the Notary Act and the Rules permitting online notarisation of documents because as per the Notaries Rules 1956, notarisation of documents can only be done in person. 

Amend the State Stamp Acts and Rules to explicitly recognize electronic agreements and introduce provisions to pay stamp duty electronically without any requirement of attaching physical copies to the agreements when the agreements are electronic in nature because the rules framed by the State Governments still require parties to attach a copy of e-Stamp certificate to the agreement as a proof of payment of stamp duty.

2. INCREASE AMBIT OF ODR PLATFOMS: 

MSME SAMADHAAN covers only issues related to delay of payments. However, this portal can be scaled up to incorporate settlement of all MSME related disputes, and thereby provide a single window dispute resolution facility for MSMEs.

3. IMPROVE DIGITAL INFRASTRUCTURE ACCESS

Access to digital infrastructure is a prerequisite for all technological breakthroughs, including ODR. For instance, The 'Digital India' initiative, PM WANI (Prime Minister Wi-Fi Access Network Interface) plan for public wi-fi access. The government can establish kiosks in rural regions and educate paralegal volunteers to assist with their use.

Such access should be understood to encompass not just physical access to technology and its instruments, but also their use, necessitating digital literacy. Furthermore, such access must address disparities generated by variations in class, caste, gender, and age, as well as include people who are frequently on the fringes.

For ex: the National Company Law Tribunal & Appellate Tribunal Bar Association, Delhi and NCLT Bar Association of Chandigarh set up few computers with access to internet at their respective bar rooms thereby allowing advocates without access to these facilities to use the computers for the Virtual Hearing in wake of the covid-19 pandemic. There have been several such pivotal initiatives through the e-Courts Mission Mode Project in this direction.

4. DIGITAL LITERACY 

To impart Digital literacy i.e., the judicial and court staff need to be equipped to manage the e-filing process. Given the unique nature of ODR, Judicial Academies, Bar Councils, and universities can be encouraged to provide training through such remote course. For example: NCLT benches of Delhi are equipped with monitors during the hearings and rely only on electronic documents which are e-filed rather than relying on physical files like other benches of NCLT. So, there is a long way to go for other district and civil courts.

5. INCREASE CAPACITY

Increased professional and service provider capacity is required if ODR is to be scaled up in India. To increase capacity while maintaining quality, the types of institutions that can give training can be expanded, and introduction of training at all levels, uniform training standards. This training should involve hands-on experience as well as simulations on ethics and best practises. 

Strengthening paralegal services within communities will not only broaden the potential reach of ODR to rural regions but will also address wider challenges of access to justice. For instance, NALSA established the Para-Legal Volunteers Scheme with the goal of providing legal training to PLVs who disseminate information about free legal services. It has spread the word about Lok Adalats, conciliation, mediation, and arbitration.

Encouraging private-sector growth will play a major role and will aid in the implementation of ODR. This can be achieved through setting up legal tech hubs, encourage development of different variants of ODR etc

Increase the capacity of court-annexed ADR centres will also help in growth of ODR. For instance, providing court-annexed centres with ODR services, simplify the standards for appointing mediators and recognising institutions for court-annexed mediation.

ODR has been adopted not only by courts across the world, but also by other government agencies trying to resolve conflicts before they reach the courts. Thus, adopting ODR for various government sectors would not only aid in the expansion of ODR but will also aid in the facilitation of access to justice.

6. BUILD TRUST IN ODR

Increased trust in ODR procedures from its end users-individual disputants, corporations, and governments-will be required for successful deployment of ODR. This confidence can only be developed via the collaborative and coordinated efforts of all stakeholders–neutrals, attorneys, ODR/ADR institutions, ODR Platforms, as well as the government and judiciary. Adopting ODR for Government litigation, introducing awareness campaigns for ODR, introducing targeted incentives for stakeholders will help building trust in ODR.

7. SUITABLY REGULATE ODR

The government may implement this light touch regulatory model380 in two ways, using legislative and non-legislative powers. First, it can change current laws to include ODR and make pre-litigation online mediation essential for certain types of cases. An opt-out paradigm can be used to boost the chance of success. Second, it can establish a set of voluntary principles that serve as the ideal set of criteria that stakeholders can adhere to. These principles can guide the technology and architecture of ODR platforms, as well as the ethical responsibilities of ODR Centres and Neutrals.

The Government can strengthen the existing legislative framework by introducing a regulatory framework for mediation and e-mediation, introduce ODR related amendments or an umbrella legislation, strengthen existing regulation of online interactions, digitise and innovate legal processes and mandate pre-litigation mediation.

The voluntary collection of principles is intended to be broad and will serve as guides for the future creation of best practises and standards. They are not meant to be a replacement for any current or future legislation. The principles can serve as a guide for ODR start-ups and institutions that provide ODR services, as well as in-house ODR Platforms that have been integrated by specific enterprises to handle their conflicts.

It is advised that ODR platforms be constructed in such a way that it may communicate and collaborate with internal and external systems, networks, and entities, as well as with integration capabilities for old and new technologies, that data can be moved from one platform to another without incurring additional charges, that it can serve as the foundation for future developments and enable for iterative development. Platforms shall also implement reasonable protections to protect its users' privacy as well as the security and should ensure that they are transparent and responsible to all stakeholders.

They should be developed to cater to diversity in terms of language, context, device, connection, capacity, and so on, and to guarantee that the system provides tools and material to users with unique requirements. Offline benefits and drawbacks should not be reproduced in the ODR process, according to the platforms. Principles for Neutrals should include the concepts of transparency, independence, competence, confidentiality, fairness, impartiality, and equality.

8. IMPLEMENT ODR IN A PHASED MANNER

It is advised that ODR be adopted gradually and in stages. For instance, Phase 1 could be setting up infrastructure and utilising existing capacity and capabilities, Phase 2 could be mainstreaming ODR, in implementing it, a favourable legal and policy environment would be required. It will also necessitate government actions to assist ODR, such as the deployment of digital infrastructure, the development of faith in ODR, the modification of legislation to allow ODR, and the training of personnel to act as neutrals in ODR proceedings and Phase 3 could be making ODR as a primary mode of dispute resolution.

However, to give a boost to ODR in India, the Government and the judiciary must lead by example. For instance, adopting ODR for Government litigation will increase the trust that people place in ODR processes. ODR can also be integrated within some Government Departments such as the Department of Consumer Affairs or help resolve disputes under the Insolvency and Bankruptcy Code, 2016. The development of Consumidor.gov in Brazil and the European Online Dispute Resolution Platform in the European Union are some of the examples of initiatives being taken to resolve consumer disputes.

Parliamentary Standing Committee report on Virtual Courts noted that virtualization of proceedings will help overcome major challenges in justice delivery, such as distance, delays, and cost. It further stated that justice delivery through virtual courts will increase access to justice and result in an affordable and citizen friendly legal system. Recognizing the benefits of digital justice systems, the Committee recommended extending the concept of virtual courts to arbitration and conciliation to make justice delivery efficient and cost-effective.