Sandeep Bhalothia and Nisshant Laroia
Mediate.com
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This article will provide a brief overview of the current status of Online Dispute Resolution (ODR) in India by examining the opportunity and challenges the ODR brings and faces receptively in India.
OPPORTUNITIES:
We recently engaged in a zoom call with our colleague, who works with a well-known and established startup. This gentleman couldn’t understand why the two of us were always promoting mediation as a means of dispute resolution. Most of the major legal disputes at the start-up giant, where he worked, were referred to court or arbitration. Naturally, he assumed that all other organizations followed the same route. This made him feel that we were wasting our time trying to promote Mediation or Consensual Dispute Resolution.
With the corporate world struggling to live through the stifling business environment created by the pandemic and the functioning of courts coming to a grinding halt, the legal team at his startup had no other choice but to explore Mediation. Seeing the increasing use of the consensual dispute resolution mechanisms, he called the two of us to say “When all else failed, Mediation came to the rescue”. We had our “we told you so moment” and had a good laugh. What followed was a very pertinent question from a user stand point. Why can’t the legal system in India adopt Online Dispute Resolution mechanisms? Upon reflection, this is our response:
We as Humans are harnessing technology in every possible sector. Be it agriculture, manufacturing or the services. I don’t see any reason for our legal system and more specifically consensual dispute resolution mechanisms to not harness technology for the benefits that it stands to provide the disputing parties. The current pandemic has pushed many companies and individuals to rely on technology. A significant number of individuals got their first-time experience of using video calls, relying on electronic signatures, and sharing files through secured and encrypted systems. The dramatic increase in use of video calling applications like Zoom is clearly paving the path for introduction of online mediation, negotiation and conciliation in India.
Going digital with mediation, negotiation or conciliation proceedings undoubtedly reduces or removes three major challenges that disputing parties in India face.
- Geographical Barriers – Parties can be located anywhere in the world.
- Never ending timelines to obtain a result – Frequency and length of each proceeding lies in the hands of the parties.
- High costs – With not much of the physical infrastructure in play and with shorter time periods to reach an outcome, there is considerable reduction in costs.
CHALLENGES:
There is still a lot of work that needs to be done before we make the complete transition to digital dispute resolution. Online dispute resolution is attractive, especially looking at Indian scenarios where the justice delivery system is suffering from clogged and slow-moving courts. But we first need to address the elephant in the room.
- Availability of training for professionals. Trainings should not be considered as a means of completing 40 hours to have the tag of a Mediation professional. Trainings need to be carried out with an aim to equip or fine tune the communication skill set, tools and techniques that a trainee needs, to become a consensual dispute resolution professional. These trainings should then be followed by independent graded evaluations. An untrained professional might fail to bridge the gap between parties which will lead to lower satisfaction and ultimately lead in decreased interest and popularity of mediation in India.
- There is significant need for online dispute resolution and the law permits it, however, the infrastructure needs to support it. Not everyone has access to digital infrastructure and availability of strong internet service. India has more than 600 million internet users, however, the internet penetration rate in India is still around 50%. A recent research conducted by Centre for Communication and Development Studies (CCDS) has blamed it on lack of infrastructure, various gender related issues, lack of affordability and awareness.
Without the availability of the above, even initiating a proceeding between parties won’t be possible. We have personally heard our colleagues share their experiences where something as small as continuous video call drop or video lags completely derailed the communication between the parties and put an end to the resolution process.
3. One cannot ignore the importance of the online CDR platforms which needs to be highly user friendly (and secure) to ensure easy transition from offline to online CDR. CDR mechanisms being confidential in nature, security of the proceedings becomes extremely important. With documents and settlements being exchanged over the digital medium, we need robust data privacy policies as well. There need to be mechanisms in place for the parties as well as the neutral to authenticate themselves irrefutably. Additionally, a secured and encrypted case management platform would go long way in securing the trust of the parties in online CDR.
THE OBVIOUS:
Once the above challenges are resolved, incentive mechanisms need to be created to ignite aspirations of disputants for online CDR by giving it an explicit legal recognition for both process and enforcement of settlement agreements. India is grappling with the problem of lack of access to justice, and if online mediation is implemented effectively, strategically with proper training, infrastructure, and policy stimulus then it would able to ease the burden on Indian justice delivery system.