ODR: A Tool to Enable Justice in The Post Coronavirus Era

Prologue

The UNCITRAL Technical Notes on Online Dispute Resolution issued in 2016, defines ODR as a “mechanism for resolving disputes through the use of electronic communications and other information and communication technology”. ODR is a form of Alternate Dispute Mechanism (ADR), which is why it is often referred to as e-ADR. Just as there is no smoke without fire; lately, ODR has been gaining momentum, and mainly for the right reasons.

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The Hon’ble Justice S. Ravindra Bhat, of the Supreme Court, in a very recent interview, had discussed the importance of the Judiciary to adapt to the post-Coronavirus scenario. He proceeded to reveal his S.W.O.T. analysis for the idea of the Judiciary going digital. Justice Bhat, of course, focused on the aspect of virtual courtrooms as well as e-filing options which can help rewrite the ways in which lawyers, litigants, and attorneys approach the aspect of arguing before a court of law.

Crazy as it may sound, but this pandemic has unearthed some opportunities which could be capitalized upon.

Smoke or Fire or both?

Furthermore, the Chinese already have a system of ‘Smart Courts’. The Government has been able to successfully merge technology with the judicial mechanism and create such courts. These Smart Courts employ novel information and communication technologies such as distributed ledgers, blockchain, and smart contracts solutions. They also attempt to merge and employ AI and machine learning here. They assist with basic, non-complex matters, real-time recording, and transcription of trial proceedings to enable justice in the post coronavirus era.

India, though, is miles behind implementing anything akin to ‘Smart Courts’. The Supreme Court of India, in Meters and Instruments (P) Ltd. v. Kanchan Mehta, had momentously observed that,

Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There appears to be need to consider categories of cases which can be partly or entirely concluded “online” without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated.

Online Dispute Resolution

The implementation of ODR to enable justice in the post coronavirus era could help settle a wide array of disputes, especially civil matters. In fact, ODR seems to be a good option to settle disputes relating to e-commerce, but its application must not be restricted. Disputes which are:

• cross-border;
• low value, and;
• high volume;

seem to be the perfect candidate for Online Dispute Resolution.

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Essentials of ODR

Some of the prerequisites of the ODR mechanism are—

• Awareness and knowledge about this technology;
• Robust internet services;
• User-friendly and adaptable platforms;
• Dedicated technological tools;
• Security and data protection;
• Mutual trust;
• Adept professionals;
• Enforceability of decisions.

E-commerce giants such as eBay and PayPal have a tiered ODR mechanism, using assisted negotiation software to settle disputes. In this way, PayPal settles roughly 60 million disputes a year. In India, ODR is yet to garner wide appreciation. Most of the work is still in its testing stage. India has to settle its own set of issues before being capable of fully embracing ODR to enable justice in the post coronavirus era.

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Points of Interest

It is easier to imagine than implement the transition to a virtual world. India faces two principal challenges in embracing ODR—

1. Demographic

The 21^st Century is only 20 years young. Add to it the final 10 years of the previous century, and that is the technologically proficient demographic. Most of the lawyers and arguing counsels are of age over 40, with technology still a rocket science for many. Basically, it is all about the approach and the mindset of the people. It is a daunting task to make technology approachable for the older generation.

The procedure and protocols for ODR would have to be very lucidly set out, such that even a layman would be able to operate on the platform and avail of the services.  A dedicated page, or a type of AI bot on the e-filing page, would also be required, that would assist with frequently asked questions. Moreover, the moment we envisage e-services, we cannot dispense with the requirement for customer care services, where there would be real people to assist when the AI would falter.

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2. Deficiency in services

A virtual world implies a world connected via the internet. One cannot forget that India is in itself a developing nation, having severely primitive pockets, where even running water and regular electricity are not very basic. It is extremely ominous indeed, to imagine that residents of such penury would be ready to transition into a virtual world.

The broadband speed and connectivity in most of the country is hardly anything to write about. In a future where the world is increasingly virtual, the bandwidth must improve from what it is now. As of July 2020, Ookla’s Speed-test Global Index, ranks India at 127 and 75 for mobile broadband and fixed broadband, out of 138 and 174 nations respectively. This paints a particularly unfortunate and sorry picture.

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Moreover, for people residing in rural areas, with generally poor internet and/or electricity connectivity, there may be a requirement for buildings through which we can arrange virtual hearings. If the courts were to go completely digital in the future, this type of infrastructure would be a must.

Most importantly, we would also require a central institution that would govern the ODR to enable justice in the post coronavirus era nationwide.

ODR-Hindrance or Opportunities?

In a perfect world, a transition into the virtual would be seamless, but this world is no Utopia, and neither should anybody expect it to be as such. The beauty of hindrances is that we can use them as opportunities for bettering the system. Imperfection is good too sometimes, for it helps to keep us grounded. For all its efficacy, the ODR mechanism is not omnipotent. There are still certain aspects of physical hearing which are absolutely indispensable, especially in the cases of criminal trials. The sheer ethos of examining a crucial witness, where the Justice observes the demeanor of the witness and applies the judicial mind, we cannot effectively substitute it.

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Online Dispute Resolution seems to be a fine way nonetheless, to capitalize upon the opportunities presented by this pandemic. The National Judicial Data Grid, which monitors the pendency of cases in India, paints a grotesque picture. 78.7% of the cases that are pending, which is about 26911058 cases, are more than a year old. There are 34195031 cases—including both Civil as well as Criminal, that are pending before the Indian Judiciary. This is exactly why there is a dire need for online dispute resolution mechanisms to be in place. It is through this way that we could reduce the mounting pressure on the Courts system even further.