Role of Online Dispute Resolution in Access to Justice: Efficiency, Accessibility & Fairness

Abstract:

Online Dispute Resolution (ODR) brings into service the use of technology and other digital platforms to resolve dispute among parties. It typically involves negotiation, mediation or arbitration, or a combination of all three in an online manner which allows the parties to participate in it remotely. It uses tools like virtual meetings, secure messaging and sharing of data in order to facilitate quick and efficient decision making unlike traditional methods of dispute resolution (litigation, arbitration or arbitration) in the offline mode which do not meet the needs of users involved in disputes regarding virtual transactions.

The motive behind writing this paper is involved in presenting an overview of the method of Online Dispute Resolution, its working mechanism, forms of ODRs, and their role in increasing efficiency, Accessibility and fairness in Access to Justice. This Paper will also deal with the new legal regulations in this area.

This paper is divided into two Sections. Section I defines the Primary aspects of Online Dispute resolution (ODR), including its definition & terminologies related to it and the convergence between ODR and technology. Section II is a study of how the employment of Online Dispute Resolution leads to increase in efficiency, accessibility and fairness in access to justice and its shortcoming.

Keywords: – ODR, settlement, resolution, mediation, arbitration, efficiency, accessibility, access to justice.

Introduction

As technology has become integrative in almost every segment of people’s lives in this digital age, the idea of dispute resolution is also experiencing transformation. The Draft Mediation Bill, 2021 acknowledged the use of Online Mediation and specified that it shall be implemented by regulations as directed by the provisions of the Information Technology Act, 2000. This step gave the much needed advancement for the implementation of Online Dispute Resolution (ODR) in India. Some other previous timelines which are significant for ODR Development in India are:-

• 2006: National Internet Exchange adopted .IN domain name Dispute Resolution Policy (INDRP).
• 2011: 10th Annual International Forum on ODR was held in Chennai, Tamil
• 2017: Government agencies were urged by the ministry of Law and Justice to involve online arbitration to resolve
• 2018: SAMADHAAN Portal was initiated to address delay of payment disputes involving Micro and Small
• 2019: E-ADR Challenge was launched to identity and support ODR start-ups.
• 2020: Panel formed under the Chairmanship of Justice (Retd.) K.Sikri by the NITI Aayog to expand the use of ODR in India.
• 2020: Chhattisgarh conducted the first virtual Lok ¹

Hon. Arthur M. Monty Ahalt (retd.) defined Online Dispute Resolution as “a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or combination of all three. In this respect it is often seen as being the online equivalent of ADR”

Traditional approaches to conflict resolution, although are satisfactory in most circumstances, fail to address such problems appropriately particularly in a world where digital interactions are becoming the norm and communication is shifting largely online. Indian courts, often overburdened, result in the process of litigation taking sometimes decades to conclude. ODR, using technology as its tool, presents a potential approach to a number of these age-old challenges.

Definitions And Terminologies Related To ODR

Online dispute resolution, hereinafter, (ODR) is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves the dual usage of Alternative Dispute Resolution (ADR) and Information & Communication Technology (ICT). Negotiation, mediation or arbitration, or a combination of all three are typically the tools used in the Online Dispute Resolutions. The use of tools based on internet and digital technologies enables the disputes to be resolved without the intervention and need of physical presence in traditional courtroom and mediation setting. This technology based new method has gained profound interest in the digital age and its usage keeps on gaining recognition and acknowledgement.

The important terminologies related with the concept of Online Dispute Resolution are:-

• E-Mediation – In this method, a mediator (a neutral third party) carries out the process of mediation (communication between the disputing parties) through online channels like video conferencing, messaging mediums, or other online methods. The mediators aims at clarifying the issues and settling the dispute among the parties by their own agreement through the online ²
• E-Arbitration – This method includes a neutral arbitrator who reviews the arguments presented by the parties online and makes a binding decision on In this process, there is utilization of online measures like sharing of document on different platforms, hearings through video conferencing and submission of evidence through electronic means.
• Automated Negotiations – This method employs use of established algorithms and complex software to facilitate the negotiation between the disputing parties. The parties share their arguments and settlement offers with the system while the system automatically determines whether there is a way to solve the disputes and determine a mutually beneficial resolution which is fair and in interest of all the parties serving their ³
• Online Hearing rooms – There is mimic of Traditional courtroom setup and medication settings, which helps in presentation of arguments in a structured manner, examination of witness and other courtroom
• Synchronization of communication – There is clear and continuous communication between the parties and dispute resolving officials through video conferencing and live chats which assists in solving of complex disputes and to provide immediate
• AI and machine knowledge – Online disputes resolution systems require the use of Artificial Intelligence and proper knowledge of machine.
• Block chains in ODR – Online Dispute Resolution make use of technologies of block chain systems to ensure that the integrity and security of records and arguments regarding the dispute resolution are safe and not disclosed to any other third party.
• Multi-Party Dispute Resolution – These systems are capable of handling complex issues regarding dispute between multiple parties in consumer or commercial ⁴
• Cross-Border Dispute Resolution – Due to their nature, the online dispute resolutions are capable of solving disputes involving parties from different nations i.e. involving international disputes as they are able to overcome geographical and jurisdictional
• Hybrid ODR – There can also be combination of both offline and online dispute resolution as some complex cases must be dealt more effectively with the use of both online and in- personal interactions between clients and resolution
• Case Management Systems – There are many different software platforms which are developed for the organization and tracking of the process of online dispute

Enhancing Access to Justice: The Impact of Online Dispute Resolution on Efficiency, Accessibility, and Fairness, Along with Its Limitations

ODR has emerged as a transformative approach in the landscape of conflict resolution resulting in enhanced access to justice. It aims to address the challenges present in the traditional dispute resolution methods i.e. complexities, time consumption, cost prohibitive and geographical constrains. Through virtual platforms, ODR presents itself as a significant tool in resolving disputes efficiently, with broader accessibility and enhanced fairness. However, there are also certain challenges accompanying the process of ODR.

Efficiency: Refining Dispute Resolution

ODR has the capability to improve the productivity of the Dispute Resolution procedure by diminishing the expenditure and the time taken to solve cases by the traditional methods. Traditional Litigation is time-consuming, requires more labor and is costly however ODR platforms enable the parties to participate in the process virtually which saves their time and cost. The flexibility offered by ODR platforms allows asynchronous communication leading to quicker resolutions. Cases are resolved in weeks or days through ODR which might have taken month or years through traditional litigation.⁵

Automated tools and algorithms also contribute to the smooth operation of ODR as it reduces workload on humans like lawyers or arbitrators. AI powered tools identify mutually profitable solutions and the document analyzing software reviews the relevant evidence to find the best alternative. This speeds up the resolution process as algorithms are employed to categorize cases and generate documents.

Accessibility: Overcoming Geographical and Socioeconomic Boundaries

There are many physical and economic barriers like geographical boundaries, financial constrains or health issues which might constrain individuals to seek legal recourse by participating in dispute resolution process. ODR addresses these shortcomings  of the traditional court proceedings by providing a platform which is a more user-friendly and confidential means of resolving disputes encouraging parties to engage without fear of public exposure which is a issue in traditional litigation.

It is a game changer for marginalized communities and individuals in rural areas as it has ability to connect parties located in different regions, irrespective of their physical presence. It makes dispute resolution more affordable and accessible to a broader range of population regardless of the language and geographical barriers. It serves as a important measure for low-income individuals who might lack resources and find themselves at a disadvantage.

Fairness: Promoting Impartiality and Transparency

ODR serves as a tool to reduce power imbalances between the parties. It enables the individuals to engage in an equal field as its platform standardizes the communication and limits prejudice which may lead to unfair disadvantage to any party. Some ODR systems also use algorithms for decision making process which contributes to a greater level of fairness as the cases are evaluated on established criteria which is impartial.⁶

ODR platforms also provide correct documentation and video recordings of the proceedings which lead to transparency and helps to build trust in the system by contributing to a more equitable and fair outcome. It also appoints third party intermediaries like online arbitrators or mediators ensuring neutrality in decision making. It makes sure that the outcome is impartial and unbiased, reducing all risk of undue influence and conflict of interest which may arise in traditional dispute resolution litigation.⁷

Limitations And Challenges Associated with Online Dispute Resolution

The access to justice can be hindered by these limitations and challenges linked to the use of Online Dispute Resolution:

• Technical Challenges:- Digital Divide between the parties may exclude individuals from low-income groups of rural areas who do not have the essentials of ODR like stable internet access, digital knowledge, and proper electronic equipments from availing its Also, technical glitches like malfunction of platform, failure of system, issue of connectivity may also disrupt proceeding leading to compromise in the process.
• Data security and privacy concerns:- Risk of Cyber threats like breach of data, unauthorized access, hacking is high because there is exchange of sensitive data. This compromise can erode the trust in the
• Lack of Personal Interaction and Acceptance Issues:- The virtual environment provided by ODR platforms restricts face to face communication and relation building between parties as they cannot read body language and facial expressions, which is present in traditional dispute
• Legal Enforcement and Regulatory Framework:- The implementation of ODR is complicated as there is a lack of standardized regulations and guidelines which leads to confusion regarding its enforceability. This leads to uncertainty and makes implementing decisions across different jurisdictions ⁸

Conclusion

ODR has brought a transformative change in the dispute resolution system by enhancing access to justice, especially in terms of efficiency, accessibility and fairness. It has modernized the traditional legal system through digital platforms, leading to quicker and cost-effective ways to resolve conflicts. A broader segment of population can take part in the dispute resolution process due to incorporation of ODR measures. It has particularly benefitted the under-served community and individuals who faced obstacles in access to justice through traditional system. It levels the playing field granting each party equal opportunity without any prejudice.

The various limitations associated with ODR need to be addressed in order to make it truly successful in promoting access to justice. The challenges like digital gap, cyber-attack threats, lack of human element, Enforcement Issues and confidentiality are concerning and it is crucial to address them in order to ensure positive impact of ODR and keep it inclusive, secure and effective.

While Online Dispute Resolution is not an ultimate panacea, it serves as a powerful transformation towards a more accessible, efficient and fair Dispute Resolution System. The full potential of ODR as a possible alternative to the traditional dispute resolution system can be realized after addressing its limitations. A more equitable justice system can be created if a balanced approach is adopted that leverages technological advantages while preserving the fundamental concepts of justice and fairness.

Notes:

¹ https://www.scribd.com/document/520370794/200727-The-future-of-dispute-resolution-in-India-Final-Version (last Visited on 9 Nov, 2024)

² https://www.semanticscholar.org/paper/AI-AND-ONLINE-DISPUTE-RESOLUTION%3A- MEDIATION/693e551ca4992bb04a153693f31b9a51b576c266 (last visited on 10th Nov,2024)

³ https://www.semanticscholar.org/paper/Online-dispute-resolution%3A-Does-the-system-actually-Sulistianingsih- Lembang/765d81465b0247c5f83c96f298547a10396a10b9 (last visited on 10th Nov,2024)

⁴ https://www.semanticscholar.org/paper/LLMediator%3A-GPT-4-Assisted-Online-Dispute-Westermann-%C5%A0avelka/8ac1c0bbfd89aa6811cc59a040eb62edf9ca2c78(last visited on 10th Nov, 2024)

⁵ https://www.scribd.com/document/210255213/Online-Dispute-Resolution-AS-A-SOLUTION-TO-CROSS-BORDER- E-DISPUTES (last visited on 10th Nov, 2024)

⁶ https://www.scribd.com/document/376014682/Comparision-of-Online-Arbitration-and-Ofline-Arbitration (last visited on 10th Nov, 2024)

⁷ https://www.scribd.com/document/690225136/Article-on-Online-Dispute-Resolution-in-India-NUJS-Law-Review (last visited on 10 Nov, 2024)

⁸ https://www.semanticscholar.org/paper/Developing-the-Legal-Regulation-of-Online-Dispute- Batdulam/d756d028a772509d3c5049879d7bade41e4ec136 (last visited on 10th Nov, 2024)

REFERENCES 

• https://www.scribd.com/document/520370794/200727-The-future-of-dispute-resolution-in-India-Final-Version
• https://www.semanticscholar.org/paper/AI-AND-ONLINE-DISPUTE-RESOLUTION%3A- MEDIATION/693e551ca4992bb04a153693f31b9a51b576c266
• https://www.semanticscholar.org/paper/Online-dispute-resolution%3A-Does-the-system-actually-Sulistianingsih- Lembang/765d81465b0247c5f83c96f298547a10396a10b9
• https://www.semanticscholar.org/paper/LLMediator%3A-GPT-4-Assisted-Online-Dispute-Westermann-%C5%A0avelka/8ac1c0bbfd89aa6811cc59a040eb62edf9ca2c78
• https://www.scribd.com/document/210255213/Online-Dispute-Resolution-AS-A-SOLUTION-TO-CROSS-BORDER- E-DISPUTES
• https://www.scribd.com/document/376014682/Comparision-of-Online-Arbitration-and-Ofline-Arbitration
• https://www.scribd.com/document/690225136/Article-on-Online-Dispute-Resolution-in-India-NUJS-Law-Review
• https://www.semanticscholar.org/paper/Developing-the-Legal-Regulation-of-Online-Dispute- Batdulam/d756d028a772509d3c5049879d7bade41e4ec136

Author: Adarsh Parashar, Patna