Recognising that online dispute resolution, or ODR, is here to revolutionise dispute resolution in India, the NITI Aayog has taken multiple initiatives over the past year to further research on the subject. In 2020, under the chairmanship of retired Supreme Court judge, Justice A. K. Sikri, the NITI Aayog set up an expert committee to come up with a policy plan to mainstream ODR in India. After multiple rounds of consultation, in October 2020, a draft was published for public comments. On 29 November 2021, after incorporating comments and being endorsed by members of the judiciary and industry leaders, the final policy plan was published.
This policy document comes at a particularly crucial juncture in India’s history. While the courts have traditionally borne the weight of resolving disputes, ADR (alternate dispute resolution) has already significantly decentralised this role and vested the power back in the hands of the litigants. Simultaneously, the Covid-19 crisis has shown that technology can, in more ways than one, alter solution-finding for everyday problems. ODR exists at the cusp of these developments and is set to re-structure dispute resolution not just in India but in other nations that are looking at India for inspiration.
ODR and its benefits
ODR is often conflated to mean e-ADR or technology assisted ADR. However, its potential benefits extend far beyond its genesis parent. ODR can help in not just dispute resolution but also in dispute containment, dispute avoidance and promotion of general legal health of the country. In its more advanced form, it can use blockchain technology, artificial intelligence and decision support systems to develop customisable processes that cater to resolving specific classes of disputes.
In comparison to traditional resolution through courts or even ADR, ODR is cost-effective, convenient and quick. Most importantly, by making dispute resolution accessible, it provides individuals, who would otherwise have been defeated by the thought of agitating for their rights, the encouragement to attempt resolution.
Many challenges to making India ODR ready
Though full of promise, many challenges resist its growth in India. The country still faces a sharp digital divide, in terms of both infrastructure and literature. Akin to other new forms of technology, given its newness, awareness has to be increased and trust has to be built in the process and service providers. Since ODR has the potential to significantly alter dispute resolution as we know it today, it is important that it receives buy-ins from all the different stakeholders in the legal ecosystem including businesses, lawyers, litigants and professionals.
While there are no laws that prohibit the use of ODR and there are some that have pushed the inclusion of technology, legal processes and laws can benefit from a rethink. For instance, there is a dire need for laws related to mediation and data protection. Similarly, some archaic processes need to be updated to account for digitisation such as eStamp certification and notarisation.
If ODR was to become a sustained long-term alternative, India also needs to see a visible increase in its service providing capacity. The number of trained professionals and service providers need to see an exponential growth while ensuring that quality standards are not diluted.
A comprehensive action plan is the solution
If one were to think about ODR as a movement or a revolution, the coming together of people from various walks of life would be a pre-condition. The central government, through its various wings and the judiciary, has to lead the way. By adopting ODR for government litigation, and requiring court-annexed centres to resolve certain classes of cases and introducing ODR platforms within government departments, this seemingly alien method to resolve disputes can obtain greater validity.
Thoughtful frameworks have to be introduced to ensure that quality and uniform training standards are adopted, which include practical and simulation exercises and teachings on ethics. Capacity has to also be increased in terms of other allied bodies such as District Legal Service Authorities and other paralegal volunteers. Businesses have to be provided benefits to adopt ODR and innovation has to be promoted in the private sector.
Important to regulate with caution
As is with most technology innovation, especially those in their nascent stages, ODR tools, processes, platforms are constantly and speedily evolving. Given the scepticism that comes along with new solutions, especially in a field of dispute resolution, the mandate for which has often rested with the State, the urge to pre-emptively regulate must be cautiously explored. An important balance has to be struck between protecting the rights and interests of its users while ensuring that over-regulation does not stifle innovation.
To address this, the policy plan recommends a two-pronged light touch approach. First, strengthen the existing legislative framework for ADR and introduce ODR-related amendments. This can take the form of an umbrella legislation for mediation, introduction of a data protection law, digitisation of legal processes like notarisation, and requiring mandatory pre-litigation mediation for pre-determined classes of cases. While multiple models of pre-litigation mediation exist, an opt-out model, which allows parties to opt-out after a select number of hearings, has seen the greatest success globally.
Second, introduce guidelines or principles that, though presently voluntary, should be adopted in letter and spirit by ODR service providers. The policy plan recommends that these service providers, which include technology platforms, ODR service centres and neutrals adopt design and ethical principles.
To ensure that capacity considerations are adequately met, ODR should be rolled out in a phased manner with lessons from each of these phases informing future steps.
Even if the light touch model is adopted today, it does not preclude a more involved regulatory model for tomorrow. Based on how the ecosystem responds, over time the government can consider, for instance, a permanent auditing mechanism or accreditation of institutions. The determination of how to best regulate the ODR of tomorrow will rest on how the ecosystem responds to the light touch model today.
The author is a Senior Resident Fellow at the JALDI (Justice, Access and Lowering Delays in India) initiative of the Vidhi Centre for Legal Policy and along with her colleagues assisted the NITI Aayog Expert Committee on ODR to draft the policy plan as a part of its Administrative Secretariat. Views are personal.
(Edited by Prashant)