Disputes are the problems that arise between two contracting parties, and to solve such problems there is a process called dispute resolution. Now, to solve a dispute there are two methods by which parties can agree to get their problems resolved. One is the traditional method of getting the matter to the court involving litigation. And the other method is the Alternate method also called Alternate Dispute Resolution. The traditional method involves filing cases to courts of appropriate jurisdiction and abiding by the rules of the court and legislature, while the latter is all about informal ways of solving a dispute by the consent of both parties with flexibility in their procedure and solutions. Since ADR is a new concept for many, the first question which arises in our mind is what ADR is.
What is ADR?
Alternate Dispute Resolution is a form of solving disputes without litigation and involvement of courts. ADR is a fast and cheap process to resolve a dispute for both parties, where both parties are not willing to give their time and money to the court and want to have a midway solution to their disputes. ADR is a more creative process to solve a problem as it helps both the parties to acknowledge each other's position in the problem and offers the possibility of providing a solution that cannot be imposed by courts due to legal barriers. The word “alternate” itself describes its purpose: the alternate method to the Court proceeding system.
Disputes can be solved alternatively, through arbitration, mediation, negotiation, Lok adalats, and conciliation. In the current crisis, where physical presence is almost impossible, and even courts are being digitalized through online and virtual proceedings, it is impossible for the parties to meet for mediation, arbitration, or negotiation. For such a scenario, there lies another method for carrying out ADR without disruption and that is Online Dispute Resolution(ODR).
What is ODR?
ODR stands for Online Dispute Resolution, which helps in resolving problems between contracting parties using the techniques of an ADR but on an online platform. In other words, ODR is the online form of ADR. “ODR is the resolution of disputes, particularly small- and medium-value cases, using digital technology and techniques of alternate dispute resolution (ADR), such as negotiation, mediation, and arbitration.”[1]ODR uses the advantages of technology to meet the shortcomings of real ADR and replace it with virtual setups with the help of E-mails, Video Conferencing, and Telephonic Communications. ODR has helped the ADR system to have a higher success rate as it makes the process of ADR more flexible, friendly, and much cheaper. Most of the e-commerce websites have undertaken this process of dispute resolution and found it very feasible, as complaints registered throughout the world and various countries make it very difficult to go by real-time meetings for ADR. Hence, ODR is best suited for both the parties to conclude within a short period without incurring many expenses. Also, in the current pandemic of Covid-19, ODR can be proved to be an essential tool in dispute resolution practices as acknowledged by Amitabh Kant in a webinar “There will be a deluge of cases post COVID and we need a collaborative mechanism for dispute resolution that do not require parties to approach Courts for most small and medium value disputes and they could potentially be resolved by adopting alternate means of dispute resolution. We need a range of ADR and ODR Solutions and we will work to strengthen them.”[2]
Since ODR is the online form of ADR, there are certain techniques of ODR which are followed while resolving an issue.
Firstly, where the parties solve their dispute by participating in virtual meetings of online video conferencing, called Synchronousform of ODR.
Secondly, where the parties do not appear virtually face to face but, the conversation takes place through e-mails, telephonic communications, and other such modes, called the Asynchronous form of ODR.
These synchronous and Asynchronous forms of ODR are used to perform the various types of Dispute Resolution Techniques on an online platform, and they are:
1. Negotiation:
It is a non-binding voluntary procedure which the parties undertake to solve the dispute on their own without the intervention of 3rd parties. It is a form of communication between the parties to discuss the problems and agrees on a solution. Although there is no statutory status given to negotiation, it offers a wide aspect of solutions to solve the problems as it is taken up voluntarily and has no set procedures to be followed. This method of the technique used in ADR is based on Communication skills and wise use of words as it is a form of the bargain over a dispute. Any negotiation which can be done using technological advancement or on an online platform is called ODR.
2. Mediation:
Another method of ADR is Mediation. In this method, disputes are resolved between the parties through a Neutral party. The neutral party takes various methods to mediate between the parties so that a fruitful outcome for both parties can be yielded. The mediator oversees the correspondence process between the gatherings decently, genuinely, and fair-mindedly. The mediator does not favor any side, rather offers legitimate guidance and gives advice. They don't go about as a Judge. They help by explaining the issues in context and recognizing the basic concerns. They aid each gathering to comprehend the other party's inclinations. Mediators, at of times, host the gathering meets close and personal. On different occasions, a mediator may carry information to and fro between the parties. The job of the mediator is to advise a way out and not to impose any solution to the parties. A memorandum of agreement is registered on agreeable terms if the advice by the mediator is accepted by the parties. Mediation is done through Video Conferencing, or initiated through e-mails to invite the parties for mediation, are the methods of performing the Online Dispute Resolution. ODR in such cases saves a lot of money of the parties and reduces the burden of the mediator as well. The Delhi Government Mediation and Conciliation Centres and The Delhi High Court Mediation Centre, has set out that cases must go into mediation centers before litigation and the same have proven very successful. It should be followed by more courts and tribunals.
3. Arbitration:
Arbitration is a method of ADR in which parties voluntarily take this process and make use of the resources of the courts, which act as third parties to the dispute being neutral. Here the interests of the parties are discussed by the neutral party on behalf of the disputing parties and they reach a conclusion. The conclusion gained at this point makes the parties submissive to the decision. Unlike mediation, the arbitrator here gives the decisionwhen the parties agree to a conclusion. The arbitrator acts no less than a Judge in a court and its decision can be enforced in the court of law. Arbitration is nowadays performed as e-Arbitration, conducted over an online platform, without going to the arbitration centers. In ODR mode, parties discuss their agenda with the arbitrators as per their suitability as a lot of time is saved through it.
4. Conciliation:
It is an informal type of dispute resolution given position under Section 61 of The Arbitration and Conciliation Act, 1996. It states that all the disputes, whether or not arising out as legal relationships must be considered for conciliation until any other law makes the exception for the same. In this, an individual acts as a conciliator and plays an active role himself in solving the dispute between the parties. The conciliator proposes a solution and pursues both the parties to cooperate in the situation and accept the proposal of the solution. The conciliator appeals to both parties to continue working in the same frame of mind and accept the midway of their stands. Now, the work of a conciliator sounds familiar to that of a mediator. But there is a procedure difference between them. In mediation, parties in dispute voluntarily hire a mediator and the mediator pursues both the parties to cooperate and reach a solution on their own, while the conciliator voluntarily comes forward and proposes a solution and then pursues both the parties to agree on it. Conciliation is an effective catalyzing tool for ODR as it is on a more personal level, the parties and the conciliator can consult through the online platform or from telephones. It enhances the conversation with the conciliator on one on one basis.
CONCLUSION
It is time for our country to look upwards to the transition from traditional methods to alternative methods. As the law is all about changing dimensions of society, we need to move along with the technology. We need to take out the best from technological evolvement for our society and deliver it in its best form. Relying on courts and tribunals, though is not disappointing but there are several other factors that the society jewels. Time, money, progress are the major factors which people look for in any organization and value as much as justice. People want their work to be done in a fast and precise way, which might or might not be facilitated by courts.
ODR favors such needs of the time and is proving to be helpful in many countries like Europe and the US. India should be nowhere left behind in this field. Moreover, it reduces the burden on courts to a huge level.
REFERENCES [1] NITI Aayog, A., & Network India, O. (2020, June 12). Catalyzing Online Dispute Resolution in India. Retrieved August 16, 2020, from https://niti.gov.in/catalyzing-online-dispute-resolution-india [2] The leaflet.in. (2020, June 29). NITI Aayog CEO calls COVID-19, an opportunity to strengthen ODR culture in India. Retrieved August 16, 2020, from https://theleaflet.in/niti-aayog-ceo-calls-covid-19-an-opportunity-to-strengthen-odr-culture-in-india/
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