By AK Sikri
The weight and obligations of justice delivery have traditionally fallen solely on the shoulders of the judiciary and the formal court technique. The induction of alternate dispute resolution (ADR) mechanisms into our legal framework decentralised this function, to an extent. However, ADR mechanisms—negotiation, mediation and arbitration—have for a selection of factors, remained strictly an ‘alternative’ to the court technique and not played a important portion in justice for all. With the burgeoning case-load in our courts, the time has now maybe come to modify this status quo.
The Covid-19 pandemic has been particularly unfortunate, and has necessitated modify. Justice delivery systems all more than the globe have inevitably embraced the integration of technologies. In India, the judiciary has led the way in adopting technologies options to retain the technique accessible even when security measures altered routines. The judiciary’s leadership and trailblazing in these tricky occasions has legitimised the use of technologies to allow dispute resolution and thereby access to justice. A culmination of factors—the have to have to decongest our courts, the demands for reasonably priced and successful dispute resolution mechanisms, and lastly, the availability of technology—have ready India for a possible game-changer: Online Dispute Resolution (ODR).
ODR is generally simplistically understood to imply e-ADR or ADR that is enabled by means of technologies, even so its possible advantages extend far beyond ADR. ODR can aid in not just dispute resolution but also in dispute containment, dispute avoidance and promotion of common legal well being of the nation. Its possible is as however really unexplored considering the fact that it goes in tandem with the developments in technologies. ODR has currently been integrated in many jurisdictions such as the US, Canada, Brazil, and the UAE wherein the government, the judiciary and private institutions are operating with each other to exploit the advantages of ODR towards enabling higher access to justice.
The explanation for ODR’s good results can be attributed to its price-successful and easy nature. It relies on asynchronous communication, eliminates the requirement for the physical presence of parties and removes unconscious bias. Its widespread use guarantees enhanced 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 modify, the NITI Aayog has constituted a higher level Committee. . This has representation from variousdepartments and ministries of the Government of India to create an action program for ODR. The report, to be released shortly, examines the present status of ODR globally and in India, identifies the present and possible challenges, and maps the way forward to broad base ODR in the Indian context.
Owing to Covid-19, a higher quantity of instances such as labour, customer, and tenancy disputes are probably to arise. ODR can aid cut down the judiciary’s burden by effectively resolving these categories of instances. ODR is also valuable for low-worth disputes. Further, ODR can be integrated to help the judiciary by means of technologies integration in court-annexed ADR centres, e-Lok Adalats and introduced inside government departments for internal disputes.
ODR can’t be rolled out and scaled up in India with no a supportive ecosystem. There is a have to have for higher access to technologies, each in terms of the physical access to infrastructure as effectively as boost in levels of digital literacy. Fortunately, some initiatives taken by the government such as the BharatNet Project are currently operating towards creating this a reality. Even the capacity to resolve disputes by means of enhanced quantity of educated and certified mediators and arbitrators has to see a rise. Coordinated and systematic efforts have to be initiated by all stakeholders. The ambit of the forms of experts that can be educated and the institutes offering such instruction can be expanded. To make sure excellent, uniform instruction requirements ought to be adopted with sensible encounter and simulations instruction on ethics and greatest practices. Innovation ought to be encouraged by means of the setting up of legal tech hubs amongst other incentives.
There is each indication that the government will play a top function and it will be a substantial win for dispute resolution if the judiciary as well collaborates in this worthy work.
As ODR grows, how it will come to be governed and regulated will have to be very carefully crafted. A balance has to be struck amongst guarding the rights and interests of its customers when guaranteeing that more than-regulation does not stifle innovation.
In the context of India, this can be accomplished by means of a two-pronged strategy. The initial is to strength the current legislative framework for ADR and introduce ODR-connected amendments. This can take the type of a legislation for mediation, introduction of a information protection law, digitisation of legal processes like notarisation and requiring mandatory pre-litigation mediation for a couple of categories of instances. Next is to introduce a light-touch strategy wherein suggestions or principles that, although voluntary, can be adopted in letter and spirit by stakeholders that supply ODR solutions. It is suggested that ODR be rolled out in a phased manner in lieu of the have to have to ramp up capacity on all fronts. The advantage of embracing a minimalist, self-regulating model currently, also indicates that, more than time, if this is necessary, a much more progressive regulatory function can be adopted. A permanent auditing mechanism and accreditation of institutions can be thought of. The query of irrespective of whether such a model will be necessary will be determined by how the ecosystem responds to the present guidance framework in the coming years.
This is a new era of justice delivery—one that will fulfill the Constitution’s guarantee of reasonably priced and accessible justice for all. ODR can bind the objectives of justice for all with a roadmap for assisting justiciable matters see successful and reasonably priced resolution.
The author is Former Supreme Court Judge, & Chair, Committee Constituted to Formulate an Action Plan for Online Dispute Resolution (Views are individual)