The pandemic has taken a complete toll on everything around us, and hence common man’s life has come to a standstill with the enforcement of many restrictions in place. In India during the initial period of lockdown phases, courts and workplaces being non-essential to and sanitation and public health were ordered to shut down operations temporarily. For the later phases of lockdown, even though severe restrictions have been taken off, the working of all institutions, in general, is not in full swing. However, advancements in technology have definitely made our lives a lot easier. This is because “work from home” has become the new standard and reality, thereby enabling firms to continue their operations remotely while simultaneously giving employees the benefit of not having to be physically present at office amidst this global pandemic. However, the number of pending cases in the courts is alarming, and even the ideals of work from home cannot counter that.
It is an undisputed fact that Dispute resolution mechanisms in India have not kept up with the technological advancements over time. Absence of proper alternate dispute resolution mechanisms can add on to number of new cases being filed in addition to the already pending enormous backlog of cases that courts must deal with subsequent to them resuming operations. This creates a never-ending loop of cases being filed one after another. The pandemic has created an unprecedented necessity for arbitral organizations, institutions and courts, to adapt at short notice to comparatively new and different ways of working and offer solutions to parties and practitioners that will enable dispute resolution in a time where social distancing has become the new norm. Hence, it’s reasonable to assume that the additional overburdening of the already burdened courts will further slowdown the process of delivery of justice if adequate measures are not taken. Hence ever since the lockdown was announced, SC issued orders stating that it would hear urgent matters via prescribed standard operating procedures of video conferencing, including for advocates and parties for mentioning cases, e-filing and hearings. Given the uptick in COVID-19-related disputes and existing backlogs of already pending cases, arbitration may be the preferred forum as opposed to judicial proceedings. (Swaminathan, 2020)
Online Dispute Resolution popularly known as ODR, is a branch of dispute resolution which facilitates resolution of disputes using Communication Technology and Information. It serves as a modern counterpart of Alternative Dispute Resolution (ADR) mechanisms like Arbitration, Negotiation, Mediation, or a combination of all the three or any two. Hence to sum up, ODR involves various methods of alternate dispute resolution including e-Conciliation, e-Negotiation, e-Arbitration, e- Mediation, and hybrid mechanisms such as Mini trial, Neutral Listener Agreement, Med-Arb, Concilium-Arbitration, Rent a Judge, Fast track arbitration etc. To have its decision non-binding or binding upon parties, it may adopt either a non-adjudicatory or adjudicatory process. (Jha, 2020)
Just like the other forms of alternate dispute resolution, ODR is confidential, has a casual setup and is much informal in nature compared to the traditional court litigation process. It ensures speedy access to justice and thereby helps in efficient time-management. The most significant advantage of ODR, which definitely makes it stand out is that it can be accessed easily from any place around the globe without any geographical limitation acting as a barrier. The asynchronous internet communications of ODR have the advantage of taking away impulsive responses that often can take place in real-time face-to-face mediation discussions which further could ideally aggravate the issue. Though not often talked about, making a switch from the traditional litigation process to Digital mode can help to protect and save the environment. Wondering how that’s possible? Well its no doubt that the traditional litigation procedures make use of paper extensively at all stages, be it filing of cases, issuing orders, writs or judgements, awarding of sentence, other court related formalities etc. So, by switching to digital means like ODR, we help to save millions of trees that are slayed down. Might sound like a simple switch, but its consequences are definitely rewarding in the long run. (Pramod, 2020)
However, despite perks that it has to offer, the applicability of ODR in India has always been questioned regardless of the pandemic scenario. The lack of acceptability to technological advancements in the litigation sector, limited range of disputes, negative mindset of lawyers, educational, cultural, and language barriers, lack of trust and confidence, and the most pivotal and crucial challenge being the admissibility of ODR. Owing to the pandemic outbreak, ODR had gained significant prominence in India. On a conjoint reading of the provisions of the Arbitration and Conciliation Act, 1996 with that of the Indian Evidence Act, 1872, and the Information Technology Act, 2000, it is quite evident that the Indian laws do provide for technical viability and legality of the ODR mechanisms. Additionally, common issues in alternate dispute resolution pertaining to geographical limitation and other issues pertaining to jurisdiction seem to be eliminated along with ensuring, improved productivity of professionals, promotion of eco-friendly processes and automated administrative tasks. The ease of ODR have been exhibited by e-Lok Adalats conducted in several states such as Karnataka, Rajasthan, Gujarat and Chhattisgarh where disputes were resolved simply over WhatsApp video/ audio calls. (Shah, 2020)
While courts are becoming accessible and digitized through the efforts of the judiciary, more reliable, efficient, collaborative, effective mechanisms of resolution and containment are urgently needed. ODR can help resolve disputes affordably and effectively. To enable ODR (online dispute resolution ) to reach its full potential, there is a need for the change of mindset. Hence the need of the hour is to maximize the reach of access to justice delivery system to all the sections of the society by making use of technological advancements. A strong infrastructure for ensuring justice, easy access in minimal time, reducing cultural and language barriers, increasing literacy rate, and easy access to e-courts facilities like ODR might be the stepping stone towards the achievement of the same.
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