DESIGNING THE FUTURE OF DISPUTE RESOLUTION

DESIGNING THE FUTURE OF DISPUTE RESOLUTION

The ODR Policy Plan for India

NITI AAYOG

Online Dispute Resolution (“ODR”) is often conceived as e-ADR, symbolizing conventional ADR mechanisms using updated technology. However, the benefits offered by ODR go far beyond ADR. ODR has the potential of not just dispute resolution, but also dispute containment and dispute avoidance because of the technology which ensures access to justice. Recently NITI Aayog formed a high level Committee under the Chairmanship of Hon’ble Justice (Retd.) A.K. Sikri. The Report introduces the concept of ODR, briefly traces its evolution and discusses its benefits. It provides a detailed discussion with a repository of international use cases for ODR that provide a solid foundation for precedents and leading practices. It also discusses the structural, behavioural, and operational challenges that ODR in India currently faces. Towards the end it lays down certain recommendations wherein augmenting accessibility, building capacity, creating trust, designing regulatory frameworks, and finally the phased implementation are discussed for ODR in detail.

Benefits of ODR

ODR uses technology actively to resolve disputes. As stated above, the use of ADR extends beyond being an e-ADR platform. It is powered by AI/ML in the form of automated dispute resolution, script-based solution and curated platforms that cater to specific categories of disputes. Additionally, ODR is cost effective, convenient, efficient and it can be customized as per the need of the parties. It also ensures, by means of using technology, that there is no human bias in resolving a dispute. Its widespread use can improve the legal health of the society, ensure increased enforcement of contracts and thereby improve the Ease of Doing Business Ranking for India. During the pandemic, a widespread increase was seen in disputes relating to consumers, tenancy and labour issues. By efficient and effective use of ODR the burden on the courts can be reduced, by leveraging the capacity of the private sector, which has already seen some innovation and capacity building in the last few years. 

ODR Development in India

The Report also talks about the development of ODR in India. In order to be mainstreamed and broad-based in India, sufficient capacity and infrastructure will have to be developed in the country. For instance, one of the pre-requisites for ODR in India is greater access to technology. This access is both in terms of the physical access to infrastructure as well as increase in levels of digital literacy. To expand capacity while ensuring quality, the kinds of institutions that can provide training can be widened and uniform training standards can be mandated. Such training should include practical experience and simulations training on ethics and best practices. 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. 

Regulating ODR

Since ODR is still in its nascent stages of development in India, it is important that the governance framework encourages the growth of innovation both within the Government and in the private sector. To enable this, a balance has to be struck between protecting the rights and interests of its users while ensuring that over-regulation does not stifle innovation. The Committee has adopted a two-pronged approach to governance. First, is to strengthen the existing legislative framework for ADR and introduce ODR related amendments. Second, is to introduce a light-touch approach to regulation wherein guidelines or principles that, though voluntary, should be adopted in letter and spirit by stakeholders that provide ODR services. The Report recommends three sets of principles i.e. Design Principles for ODR Platforms and separate sets of Ethical Principles for ODR centres and third-party neutrals. 

International Experience in ODR

The last two decades have witnessed an exponential development in ODR. ODR Platforms and institutions have emerged across the globe to provide efficient redressal to a variety of disputes. These ODR Platforms have not only been effective in resolving disputes arising from online transactions, but also, traditional disputes such as labour disputes, tenancy disputes, etc. Some recent trends and themes emerging in ODR are described as follows: 

Structure and models in ODR

The report identifies four models of dispute resolution. These are: 

1. Tiered dispute resolution: In order to  maximise the benefits of ODR and enable effective resolution of disputes, institutions across the globe have adopted multi-tiered online dispute resolution models. These tiered models provide disputing parties with an alternative ODR solution when the prior ODR process fails to achieve a settlement.
2. Hybrid models of dispute resolution: A hybrid dispute resolution model strengthens the traditional offline dispute resolution mechanisms along with developing ODR solutions for increased efficiency and access. The parallel introduction of ICT tools in the traditional dispute resolution processes increase its efficiency while gradually building public trust on the inclusion of technology tools in the dispute resolution process.
3. Primacy of consumer disputes redressal: Consumer disputes have been identified as one of the most suitable categories of disputes where ODR can be adopted. In the private sector, companies like PayPal and eBay have instituted in-house mechanisms and technology solutions for resolving customer disputes.

Role of private sector in ODR

Private enterprises, especially those working in e-commerce and other internet- based sectors, are increasingly resorting to ODR to save on time and money in resolving disputes that are arising during the course of their business. While some of these private enterprises, such as eBay and PayPal, have incorporated ODR mechanisms within their own structure, others have partnered with private ODR Platforms for these services. Given the initial requirement for technical expertise, many Government run and court-annexed ODR Platforms have partnered with private ODR service providers and have incorporated off-the-shelf technology solutions to establish a comprehensive ODR framework. For instance Federal Mediation and Conciliation Services (US) uses technology solutions developed by eRoom, mimio, FacilitatePro and NetMeeting to support their ODR Platform. 

Good practices in ODR

1. Education and evaluation are key: Educating both the plaintiff and the defendants regarding the methods of dispute resolution, providing detailed Frequently Asked Questions (FAQs), chat and negotiation features, and document preparation can help individuals navigate the dispute resolution process better. For instance in Utah, the first stage of the Utah Small Claims Court’s ODR process is called ‘Education and Evaluation’. The stage is intended to inform users about their claims and potential defences.
2. Technological solutions have to be directed towards cyber security: Confidentiality of proceedings is one of the primary concerns for companies while using independent ODR Platforms for dispute resolution. Cyber security and safety of the documents submitted to the platform and during virtual proceedings are some of basic requirements that independent platforms must ensure to generate trust in the ODR processes.
3. Clarity in enforcement of final agreements: Determining methods of enforceability of ODR agreements has time and again been cited as a key challenge that an ODR framework will have to resolve. Agreements can usually be automatically enforceable, enforceable upon obtaining consent of the court or not automatically enforceable. This calls for a for a customised ODR framework for India as well.

Present status in India

The Report analyses the present status of ODR in India and where we are now with respect to integration of technology into our dispute resolution system. It analyses the preparedness of the Government in incorporating ODR, the legislative position vis-a-vis ODR, acceptance of ODR by the judiciary and the innovations in the private sector. The following timeline provides an overview of some key events that have paved the way for ODR growth in India. 

Executive preparedness

In the recent past, Ministries and Departments within the Government have acknowledged the potential of ODR and launched programmes that help resolve disputes in the sectors regulated by them. 

1. National Internet Exchange of India’s (NIXI) Domain Dispute Settlement Mechanism: National Internet Exchange of India (NIXI) have adopted a .In Domain Name Dispute Resolution Policy (INDRP), which sets out the terms and conditions for resolving a dispute arising out of the registration and use of the .in Internet Domain Name. Under its procedure, complaints can be filed online and disputes are decided by an arbitrator/s on the basis of written submissions.
2. Department of Consumer Affairs: The Department of Consumer Affairs, in 2005, launched the National Consumer Helpline (NCH) to disburse information on issues pertaining to consumers and promote consumer welfare. In 2016, the Department of Consumer Affairs extended this service with the launch of Integrated Consumer Grievance Redressal Mechanism (INGRAM) initiative to offer a platform for consumers to get their complaints and grievances addressed directly by the companies who have voluntarily partnered with NCH. In 2016, Online Conciliation and Mediation Centre (OCMC) was established at the National Law School of India University under the aegis of Ministry of Consumer Affairs with an aim to propel online mediation as a first choice for resolving consumer disputes. This initiative has been recognised by the Department as well.
3. SAMADHAAN Portal: The Ministry of Micro, Small and Medium Enterprises launched the SAMADHAAN 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, which accounts for nearly 94 per cent of the dues payable to MSEs. The platform can also be used by MSEs to file payment due applications against private enterprises, proprietorship and others in State specific MSE Facilitation Councils.
4. Draft National e-commerce Policy: the Department for Promotion of Industry and Internal Trade (DPIIT) released the Draft National e-Commerce Policy which suggests the use of an electronic grievance redressal system including dissemination of compensation electronically for disputes arising from e-commerce.

Legislative preparedness

1. Key legislations: While this legislature recognises arbitration procedure, the power of the court to refer parties to not just arbitration but all forms of ADR comes from the Code of Civil Procedure, 1908. Section 89 of the code empowers the court to refer a case for resolution through one of the ADR modes recognised under the provision–arbitration, conciliation, judicial settlement including settlement through Lok Adalat or mediation.
2. Parliamentary Standing Committee report on virtual courts: due to the COVID-19, the Government and the judiciary have actively embraced technology tools in justice delivery processes. The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its recent report on ‘Functioning of the Virtual Courts/ Courts Proceedings through Video Conferencing’ has recognised this contribution of technology. This report is reflective of shift in outlook of the judiciary and the Government towards technology in the dispute resolution processes. It therefore, sets the stage for further technological innovations in dispute resolution such as ODR.
3. United Nations Convention on International Settlement Agreements Resulting from Mediation, 2018: The Government has also chosen to be governed by international obligations and standards of global best practices to strengthen ADR in India. One of the recent steps in this direction is bringing to force the United Nations Convention on International Settlement Agreements Resulting from Mediation (also referred to as the ‘Singapore Convention’). It allows for direct enforcement of mediated settlement agreements and enables swift enforcement of settlement agreement arising from international mediation

Judicial preparedness

In addition to the executive and the legislature, the judiciary through its judgments and practices, has created an enabling framework for ODR in India. 

1. ICT integration within judiciary: The eCourts project has deployed technology infrastructure and standardised software in District Courts across the country. Some of its key successes include the setting up the eCourts websites, creation of the National Judicial Data Grid (NJDG) and establishment of a unified CIS (Case Information System). Electronic signature is another crucial step towards digitising legal processes. Considering the low availability of the hardware cryptographic token for eSignature on pdf documents, the eFiling Portal launched under the eCourts Mission Mode Project also provides a facility for eSigning. Lastly, the Supreme Court has now harnessed the potential of artificial intelligence through the development of SUVAS i.e. Supreme Court Vidhik Anuvaad Software. This artificial intelligence powered software has the capability to translate judgments, orders and judicial documents from English to nine vernacular language scripts.
2. Support by setting judicial precedents: The Supreme Court, in Shakti Bhog v Kola Shipping,  and in Trimex International v Vedanta Aluminium Ltd., recognised the validity of use of technology in the arbitration process. The court also upheld that the validity of online arbitration agreements through emails, telegram or other means of telecommunication which provide the record of agreement. In Grid Corporation of Orissa Ltd. v AES Corporation it allowed consultation amongst people through electronic media and remote conferencing for the purpose of appointing an arbitrator. In the case of State of Maharashtra v Praful Desai the court extended this recognition for modern modes of communication and upheld video-conferencing as a valid mode for recording evidence and testimony of witnesses.

Challenges faced in adoption of ODR

The report identifies the following challenges that need to be addressed in a phased manner for successful implementation of ODR:

Structural

1. Digital infrastructure: A pre-condition to ODR integration is robust technology infrastructure across the country. This includes access to computers, smart phones and medium to high bandwidth internet connection for at least the length of time it takes to conduct meaningful hearings. The lack of such requirements is likely to disadvantage those that have limited access to digital infrastructure.
2. Digital literacy: In India, this digital literacy often varies across age, ethnicity and geography. For instance, out of the 743.19 million internet subscribers in India, the internet rural penetration rate is only 32.24%. To enable the large scale adoption of ODR it is necessary that such a digital divide be addressed. To achieve this, there is a need for programmes that focus on boosting internet accessibility in rural areas combined with dedicated initiatives to popularise basic skill sets required to access ODR services.
3. Access to technology: In India, there exists a divide with respect to the access to technology across gender, geography, class and age. As per Internet India Report 2019, women constitute only 1/3rd of internet users in India.272 The situation is even worse in rural India where women constitute only 28 per cent of the internet users. Such divide in accessing the internet might result in uneven access to ODR services, thereby exacerbating the divide that already exists in terms of access to justice through traditional courts.

Behavioural

1. Lack of awareness regarding ODR: It is essential that apart from strengthening ADR processes that people are already familiar with, initiatives should be taken to build awareness regarding ODR. At present, the lack of awareness regarding ODR translates into litigants and businesses having low confidence in ODR processes and restricted application of ODR in sectors with huge potential for such as MSME, consumer disputes etc.
2. Lack of trust in ODR services: Similar to other emerging technologies, ODR is bound to be met with scepticism from potential users, especially regarding its effectiveness given the lack of in-person interactions, as well as regarding data security and confidentiality.
3. Government’s role: The Government and Public Sector Undertakings (PSUs) are amongst the biggest litigants in India. Adoption of ODR to resolve inter and intra Governmental disputes would be a key step in boosting confidence in the process. This will automatically address the issue of trust in ODR processes and outcomes.

Operational

1. Privacy and confidentiality concerns: Greater integration of technology and reduced face to face interactions create new challenges for privacy and confidentiality, especially in dispute resolution. ODR service providers should be extremely mindful of building robust data storage and management frameworks to address these concerns. Digital signatures, encryption of documents to ensure confidentiality etc. are some of the measures that need to be taken to sustainably integrate ODR for large scale of disputes.
2. Availability of Neutrals: A robust training ecosystem for ADR/ ODR professionals that caters to the demand is necessary while pushing towards integration of ODR as a preferred dispute resolution mechanism.
3. Enforcement of outcome of ODR process: A key challenge towards meeting the objectives of this report itself is the existing uncertainty regarding enforcement of ODR outcomes. There is still a lack of clarity in enforcement of mediation agreements and enforcement of arbitration agreements is complex as well as burdensome in India.

Recommendations

Access to digital infrastructure

A pre-condition for all technology related innovations, including ODR, is widespread access to digital infrastructure. Such access should not just be understood to mean physical access to technology and its tools but also include its utilisation and thus necessitate digital literacy. Additionally, it is important that such access addresses gaps created by differences in class, caste, gender and age and include those individuals who are often on the margins 

Increase capacity and training

While access to digital infrastructure is necessary for the inclusion of the end user, increase in capacity of the professionals and the service providers is necessary if ODR is to be scaled up in India. This can be achieved only through systematic and co-ordinated engagement of all concerned stakeholders ranging from the Government to the businesses and the judiciary. To achieve this, there is a need to introduce training programmes, strengthen paralegal services within communities, encourage growth within the private sector, increase capacity of court-annexed ADR centres and co-opt ODR into specific government sectors. 

Building trust in ODR

While access to digital infrastructure is necessary for the inclusion of the end user, increase in capacity of the professionals and the service providers is necessary if ODR is to be scaled up in India. This can be achieved only through systematic and co-ordinated engagement of all concerned stakeholders ranging from the Government to the businesses and the judiciary. To achieve this, there is a need to introduce training programmes, strengthen paralegal services within communities, encourage growth within the private sector, increase capacity of court-annexed ADR centres and co-opt ODR into specific government sectors. While building infrastructure and ensuring adequate capacity can form the foundation for ODR, its mainstreaming will require increased trust in ODR processes from its end users- individual disputants, businesses and governments. This trust can be built only through collaborative and coordinated efforts from all concerned stakeholders–Neutrals, lawyers, ODR/ ADR institutions, ODR Platforms along with the Government and the judiciary. 

Regulation of ODR

The Government can adopt a light touch regulatory model through a two- pronged approach that uses legislative and non-legislative tools. First, it can amend the existing legislations to incorporate ODR and introduce mandatory pre- litigation online mediation for certain classes of cases. To increase the likelihood of success, an opt-out model can be adopted. Second, it can introduce a set of voluntary principles that act as the ideal set of standards that stakeholders can follow. These principles can govern the technology and design of ODR platforms and ethical obligations for ODR Centres and Neutrals.