Unravelment of ODR in the Indian Landscape: Hurdles and Possible Solutions.
A Blessing In Disguise!
- How beneficial can it be for you to have the services of legal dispute
resolution on your laptop
- How about filing a complaint online and making your concerns heard by way of a
simplistic setup like that of an app?
- Resolving disputes without courtroom hassles all in the comfort of your
vicinity, YES, all this is possible with ODR!
NITI AYOG has given an ultimate push to ODR, with its policy titled 'Designing
the Future of Dispute Resolution: The ODR Policy Plan for India', the first of
its kind comprehensive document on ODR released by the government of India,
which provides much-needed insight on the distinctive mechanism. Online dispute
resolution is a way of resolving disputes virtually involving the modes of
alternative dispute resolution with technology being a major role player.
Dispute resolution involves techniques like negotiation, mediation, arbitration,
conciliation, etc. Arbitration and Conciliation Act 1996 has governed the
advent of commercial arbitration in India following which the act has undergone
several amendments. ODR as a mechanism of resolving disputes is very
advantageous over other methods of solving grievances that might involve
courtroom litigation hassles. The process is cost-effective, convenient,
time-saving, and easily accessible.
The growth of ADR in the recent past has
been enormous but a lot needs to be done in making ODR a success in India. If
the potential of ODR is optimized to the fullest, the mechanism can work wonders
in achieving expedient dispute resolution. To achieve this goal, it becomes
crucial to discuss the challenges that are hindering the effective
implementation of ODR in India and what might be the prospective solutions to
overcome such challenges.
Digital Infrastructure Vis A Vis Digital Literacy
There is a dire need for a robust technological framework for making the dispute
resolution process simple and effective. Necessities like smartphones,
computers, high bandwidth, and a stable internet connection are still
inaccessible across all the groups nationwide. There is a deep digital divide
that needs to be overcome for making ODR a success. According to the 75th round
of the NSS (National Sample Survey) report, 2017-18, household-level statics
reveal that only 4.4% of rural households own a computer as compared to 23.4% of
urban households. The basic skill set required to access ODR and put technology
to use is still unpossessed by a major chunk of the Indian population.
disparity in access to technology exists across various groups that are divided
on the parameter of gender, geography, class, age, and financial background. The
women and the elderly population are still lacking to utilise technology for
their interests as compared to their counterparts. People from weak financial
backgrounds are still not able to afford the infrastructure that is required to
The government, too, has undertaken various initiatives to
overcome this technological divide by implementing policies like The national
Digital communication policy 2018, which aims to provide universal broadband
connectivity, and the National Broadband Mission, which promises to provide
broadband connectivity to villages by 2022. People must be digitally literate to
overcome the challenge of integrating technology with dispute resolution.
Unfolding The Potential
Due to the lack of application of such dispute resolution mechanism in India
people are not aware of the scope of ODR and its utilization. Disputes related
to Consumer Protection, E-challans, small MSMEs, etc can be resolved effectively
through ODR. People are largely dependent on courts for such types of disputes
which can be handled more efficiently through the ODR mechanism. There is a lack
of reliance amongst the people despite the costs and delays associated with the
Indian Judicial system.
According to the Economic Survey 2018-19, about 3.5 crore cases are pending in the judicial system, especially in the district and
subordinate courts, and 87.54% of the total pendency of cases is in the district
and subordinate court. The capacity to provide quality ADR services for less
severe disputes has still not been achieved. Also, the ambiguity that surrounds
the enforceability of ODR outcomes makes people lose their trust in such
mechanisms. The process of execution of awards through courts can be cumbersome
and counterproductive to the spirit of ADR.
Lack Of Training Mechanisms For ADR/ODR Professionals
The lack of proper training for the officials in government departments and PSUs
creates a hindrance in the process of resolving disputes. A training mechanism
needs to be developed for ADR and ODR professionals so that the benefits of the
technique can be maximized. Listeners who are neutral in their approach and well
versed in operating online dispute resolution are necessarily required.
are concerns about privacy and confidentiality as ODR involves a greater
integration of technology and less face-to-face interaction may lead to
activities like online impersonation, breach of confidentiality, fake
identification, and spread of sensitive information and documents. A
well-equipped robust data storage and management framework need to be developed
for overcoming the insecurity that people have towards their privacy while
choosing ODR to resolve their disputes.
Making Technology Accessible
Access to technology has to be achieved in every facet including both digital
infrastructure and digital literacy. The people may be provided with one-stop
redressal centers where they should get access to every piece of equipment that
might be necessary for a virtual dispute resolution session. Such centers must
ideally be maintained by the government for the strata of people who cannot
access such services in their homes and are not acquainted with the use of
The centres must be equipped with computers or PCs and the requisite
environment so that the process can conclude effectively. It is a fund expensive
process in which the government would act as a major stakeholder mediating
between the disputants and ODR. The Bharat Net Project of 2011 is a leading
example of how such initiatives may fail due to a lack of funds. Digital
literacy can be achieved through awareness programs and workshops starting from
the very basic level as that of a small village. Judiciary may run campaigns on
multimedia and social media platforms and may also publish the success rate of
ODR in resolving disputes.
Technology and digital infrastructure must be
integrated into the lives of people so that they adapt to such means. The
digital divide must also be reduced so that everyone can access the dispute
resolution ways like ODR to make them compatible with their counterparts. A
customized training plan should be adopted to target level-based learning
starting from the basic level to the practical skill acquisition.
professionals must also be trained similarly. Collaborations can be made by
bodies like Bar Councils, District Legal Service Authorities, Judicial
Academies, and District governments. The ODR training must also be infused into
the legal curriculum. The capacity of court-annexed ADR centres must also be
Adopting A Dispute-Specific Approach
As ODR can be fruitful for certain particular disputes, a dispute-centric
approach can be adopted. Money matters, E-challans, insolvency, and Matrimonial
disputes are some of the highlights. A single dispute resolution facility can
also be created for all MSMEs so that they can utilize the potential of ODR for
resolving such categories of disputes.
Consumer helplines must also be put in
place to create an integrated consumer grievance redressal mechanism. Government
initiatives like MSME SAMADHAAN have proved to be successful in taking the idea
of ODR further. The need of the hour is a more dynamic and capacitive
implementation that is inclusive of more categories of disputes and in larger
volumes. Implementing this can relax a lot of burden from tribunals like NCLT
and can help in avoiding delays.
Establishing Trust In ODR
Due to the uncertain and virtual nature of ODR, it is important to form a trust
for the mechanism in the minds of the people. This will require collaborative
and coordinative efforts from all the concerned stakeholders and the legal
fraternity. Awareness needs to be created for people to choose ODR above
litigation. ADR and ODR need to be differentially recognized so that their
significance is realized by the service takers. A clear description of the
services being provided by any institution is necessary for the people to
differentiate among various ADR mechanisms like E-Arbitration, E-Mediation,
E-Conciliation, etc. This can be established through various means.
be encouraged to adopt ODR for resolving disputes which will be more efficient
and less time-consuming for them. Government and PSUs being the major litigants
in the country must be made acceptive of ODR for resolving their disputes. A
hybrid model of ADR and litigation has to be adopted till the time ADR is
properly grounded as a way of resolving disputes in India. The common masses see
litigation as the only recourse available to them in case of a dispute. This
draws a need for the implementation of ADR in a phased manner using litigation
itself for spreading awareness about the same.
The government can mandate
certain categories of disputes to be necessarily solved through ODR. This can
give an instant boost in the people's trust in ODR. The Mediation and
Conciliation Project Committee is an example of the initiative taken by the
Judiciary to mainstream ADR in the country.
Incentives must be introduced for MSMEs and other service-takers to choose ODR
as their way of dispute resolution. Incentives can be categorized based on the
stakeholders, for instance, incentives for businesses, incentives for lawyers,
incentives for start-ups, etc. A waiver on penalties and sector-specific schemes
might be of interest to MSMEs, start-ups, and other bigger firms.
a very huge role when it comes to educating the common masses about ADR.
ADR/ODR, are right now very fancy terms known by a very small group of
influential upper-class people or wealthy corporates that opt for them for
addressing their concerns. Advocates are a connecting link between the people
and the remedy of which the masses are unaware. They should be provided with
incentives for spreading awareness about ADR to their clients. All these efforts
can translate into a high rate of adoption of ODR.
Strengthen Of Legislative Framework
ODR should be regulated in a way that is both uniform and flexible so that the
strict regulations do not hamper the dynamic nature of the process and the
rights of the users are fostered. The existing legislation can be amended to
incorporate mandatory pre-litigation ODR. The existing framework must also be
made strong so that a progressive mode of control can be adopted. The
Arbitration and Conciliation Act 1996 must be modified to include ODR which can
help ODR base its roots as one of the Dispute resolution frameworks.
is already a hurdle in the effective implementation of ODR in India, it becomes
certainly more necessary to have stronger and more transparent regulations.
Proper regulations need to be in place to protect the identity of the parties
and to keep a security check on any sensitive information that might be divulged
through the course of the ODR session.
For any sort of dispute resolution that
has to be conducted online, a suitable set of rules and regulations has to be
formulated. Shifting the process online brings a lot of challenges with it which
need to be addressed for smooth conduct. A special platform needs to be
developed for this process and specific legislation for its regulations needs to
be put in place. ADR, online and offline, are two very different things and
require separate, intricate guidelines.
Developing An Exclusive Platform For ODR
To develop a platform for the process of conducting ADR online, it is very
important to understand the difference between online dispute resolution and
virtual alternative dispute resolution. During the COVID times, ways such as
video conferencing, zoom meetings, and Webex meetings have been undertaken by
the Indian legal system to deliver justice.
Here, the point of difference is
that ODR is completely online from the filing of an application to the outcome
of the ODR session whereas virtual ADR is simply conducting ADR sessions online
using any of the video conferencing platforms.
So, to smoothen the process of ODR there is a need to design an exclusive platform to cater to the interest of
this process and the people availing it. Certain apps are already in the
pipeline which aim to conclude a hassle-free experience of an ODR session. Such
apps need to be designed in a way that everything can be conducted online
without the service takers being called offline.
This also requires legislative
backing like allowing E-stamping and online notarization. For this purpose,
automated notarization and E-stamping tools need to be developed. Electronic
records also need to be stored online securely. Ways of authentication of the
users and the intermediaries conducting the process must be one of the features
of the app. Following all this, certain basic principles like transparency,
consent of the parties, neutrality, fairness, impartiality, confidentiality, and
competence need to be addressed.
As India envisioned by Dr. APJ Abdul Kalam, where the aggrieved can directly
knock on the doors of the court to seek justice, ODR fosters the same spirit of
establishing a way between a dispute and a remedy. If the capacity of ADR is
fully utilized, a huge withstanding burden of millions of cases on the
traditional Indian Courts can be relaxed.
However, to fully implement mechanisms
like ODR in India, high expenditure on time and resources is necessary. India
also needs to keep itself abreast with the latest technological advancements in
the field. After these hurdles are crossed, ODR can work wonders for all the
stakeholders and the disputing parties, being a very user-centric and easily
accessible mechanism. ODR has the power to decentralize the process of dispute
resolution in India with the help of IT and AI.
Though a lot has already been
achieved in this area, the present is just the tip of the iceberg. There are
still greys that need to be explored and uncovered. To brighten the future of
ODR in India, consistent efforts from the govt, judicial system, people, and all
the stakeholders are essential.