Strengthen the existing legislative framework for alternative dispute resolution with amendments supporting online dispute resolution
With the burgeoning case-load in our courts, the time has now perhaps come to change this status quo.
By AK Sikri
The weight and obligations of justice delivery have traditionally fallen solely on the shoulders of the judiciary and the formal court system. The induction of alternate dispute resolution (ADR) mechanisms into our legal framework decentralised this role, to an extent. However, ADR mechanisms—negotiation, mediation and arbitration—have for a variety of reasons, remained strictly an ‘alternative’ to the court system and not played a major part in justice for all. With the burgeoning case-load in our courts, the time has now perhaps come to change this status quo.
The Covid-19 pandemic has been extremely unfortunate, and has necessitated change. Justice delivery systems all over the world have inevitably embraced the integration of technology. In India, the judiciary has led the way in adopting technology solutions to keep the system accessible even while safety measures altered routines. The judiciary’s leadership and trailblazing in these difficult times has legitimised the use of technology to enable dispute resolution and thereby access to justice. A culmination of factors—the need to decongest our courts, the demands for affordable and effective dispute resolution mechanisms, and lastly, the availability of technology—have prepared India for a potential game-changer: Online Dispute Resolution (ODR).
ODR is often simplistically understood to mean e-ADR or ADR that is enabled through technology, however its potential benefits extend far beyond ADR. ODR can help in not just dispute resolution but also in dispute containment, dispute avoidance and promotion of general legal health of the country. Its potential is as yet quite unexplored since it goes in tandem with the developments in technology. ODR has already been integrated in several jurisdictions such as the US, Canada, Brazil, and the UAE wherein the government, the judiciary and private institutions are working together to exploit the benefits of ODR towards enabling greater access to justice.
The reason for ODR’s success can be attributed to its cost-effective and convenient nature. It relies on asynchronous communication, eliminates the requirement for the physical presence of parties and removes unconscious bias. Its widespread use ensures increased enforcement of contracts and, thereby, improves Ease of Doing Business parameters for India. Now is the time to mainstream it in India. To usher in this transformational change, the NITI Aayog has constituted a high level Committee. . This has representation from variousdepartments and ministries of the Government of India to develop an action plan for ODR. The report, to be released shortly, examines the current status of ODR globally and in India, identifies the current and potential challenges, and maps the way forward to broad base ODR in the Indian context.
Owing to Covid-19, a high number of cases such as labour, consumer, and tenancy disputes are likely to arise. ODR can help reduce the judiciary’s burden by efficiently resolving these categories of cases. ODR is also beneficial for low-value disputes. Further, ODR can be integrated to support the judiciary through technology integration in court-annexed ADR centres, e-Lok Adalats and introduced within government departments for internal disputes.
ODR cannot be rolled out and scaled up in India without a supportive ecosystem. There is a need for greater access to technology, both in terms of the physical access to infrastructure as well as increase in levels of digital literacy. Fortunately, some initiatives taken by the government such as the BharatNet Project are already working towards making this a reality. Even the capacity to resolve disputes through increased number of trained and qualified mediators and arbitrators has to see a rise. Coordinated and systematic efforts have to be initiated by all stakeholders. The ambit of the types of professionals that can be trained and the institutes providing such training can be expanded. To ensure quality, uniform training standards should be adopted with practical experience and simulations training on ethics and best practices. Innovation should be encouraged through the setting up of legal tech hubs among other incentives.
There is every indication that the government will play a leading role and it will be a huge win for dispute resolution if the judiciary too collaborates in this worthy effort.
As ODR grows, how it will come to be governed and regulated will have to be carefully crafted. A balance has to be struck between protecting the rights and interests of its users while ensuring that over-regulation does not stifle innovation.
In the context of India, this can be achieved through a two-pronged approach. The first is to strength the existing legislative framework for ADR and introduce ODR-related amendments. This can take the form of a legislation for mediation, introduction of a data protection law, digitisation of legal processes like notarisation and requiring mandatory pre-litigation mediation for a few categories of cases. Next is to introduce a light-touch approach wherein guidelines or principles that, though voluntary, can be adopted in letter and spirit by stakeholders that provide ODR services. It is recommended that ODR be rolled out in a phased manner in lieu of the need to ramp up capacity on all fronts. The benefit of embracing a minimalist, self-regulating model today, also means that, over time, if this is required, a more progressive regulatory role can be adopted. A permanent auditing mechanism and accreditation of institutions can be considered. The question of whether such a model will be required will be determined by how the ecosystem responds to the current guidance framework in the coming years.
This is a new era of justice delivery—one that will fulfill the Constitution’s promise of affordable and accessible justice for all. ODR can bind the goals of justice for all with a roadmap for helping justiciable matters see effective and affordable resolution.
The author is Former Supreme Court Judge, & Chair, Committee Constituted to Formulate an Action Plan for Online Dispute Resolution (Views are personal)