By Aditi Mishra and Kavya Arora
Introduction
In 2018, the Vice President of India, M. Venkaiah Naidu, while addressing a Conference organised by Construction Industry Arbitration Council, referred to Online Dispute Resolution (ODR) as “a logical and natural step” towards the future of dispute resolution.[1] ODR has become more relevant recently due to the effects of the COVID-19 pandemic. Social distancing and lockdowns have forced the judicial system to switch to virtual hearings and other remote justice delivery mechanisms. The pandemic has accelerated the acceptance of technology into the folds of justice delivery.[2]
Richard Susskind, a scholar eminent for his writings on the future of legal services, has outlined three primary challenges posed by the COVID-19 pandemic on the judicial system. First, to maintain a sufficient level of service while courts remain closed. Second, the backlog accumulated while the courts churned out lower outputs due to COVID 19 restrictions. The third is the long-term challenge that even at their full capacities, the courts have been unable to deliver accessible and expeditious justice.[3] As of July 2021, the case pendency stands at over 55,000 in Supreme Court,[4] over 5 million in High Courts, and over 40 million in District Courts.[5] It must be noted that the largest caseload and the largest pendency occur at the grassroots level, i.e., in district courts. Unsurprisingly, the lower socio-economic classes bear a disproportionate brunt of this calamity of judicial pendency. This has been exacerbated by the COVID-19 induced handicap in mobility and financial stability. While the middle and upper classes have been able to afford the transition to online courts and virtual hearings due to access to technology, lower classes have struggled to make ends meet.
ODR has been considered as a viable solution to the present backlog. It has also been proposed as a potential solution to the problem of access to justice.[6] Dispute Resolution is party-centric and not formalistic and adversarial. Being free of legalese, procedural hassles, undue lags, and excessive costs, it is easily accessible for the lower strata who often find themselves at sea with the arduous technicalities, costs, and duration of litigation. If conducted remotely, dispute resolution can further cut costs and provide an accessible avenue for parties who cannot physically access dispute resolution centres. However, introducing ODR in India poses unique challenges. The most vulnerable stakeholders in the justice system, who already struggle with the offline justice system, cannot be expected to make an overnight transition to “online” dispute resolution. Digital literacy and access to technology are two primary issues that must be tackled to avoid widening the class-based rift in access to justice. Moreover, ODR has been nearly absent from the Indian ADR landscape until now. Thus, its inculcation will require the formulation of an entire legal and systemic framework.
To begin with, this paper presents the ongoing attempts at introducing technology-intensive ODR to the Indian mainstream. Further, these attempts are critically appraised for excessive dependence on inaccessible technology, resulting in further disenfranchisement of vulnerable stakeholders. Lastly, the paper suggests a hybrid model of ODR that better caters to the needs of India at the grassroots level.
Existing Attempts at Creating a Technology-Based ODR Framework for India
There have been quite a few attempts at introducing the ODR framework in India. The most notable among them being the Nilekani Committee report to boost digital payment and inclusion of technology-driven ODR to handle complaints,[7] the Vidhi Centre for Legal Policy’s paper on the Future of Dispute Resolution in India,[8] and the NITI Aayog Expert Committee’s policy plan for ODR in India. The most comprehensive work at the policy level for mainstreaming ODR has been by the NITI Aayog. Therefore, this part mainly analyses the NITI Aayog Report titled “Future of Dispute Resolution: The ODR Policy Plan for India.”[9]
The ODR envisaged in all the three reports, including NITI Aayog’s policy plan, favor an extensively digitised approach. The policy plan explicitly states that technology has to be used to “actually resolve disputes.”[10] For a resolution process to be included within the ambit of ODR, a “substantial” amount of communication between the parties and the neutral third party must occur through the use of an ODR-platform.[11] The Committee referred to UNCITRAL Technical notes on ODR, which recognised that an ODR Platform assumes chiefly the technological role of “generating, sending, receiving, storing or otherwise processing communications.”[12] However, it was recognised that while this definition may cater well to cross-border disputes, it would be highly exclusionary for grassroots level dispute resolution in India due to lack of technological infrastructure and digital literacy.[13]
Websites like eBay and Alibaba have been using automated decision-making in minor e-commerce disputes. Advanced algorithms like Smart Settle have even negotiated complex problems like the Brexit deal with minimal human intervention.[14] Technologies such as intelligent decision support systems, smart negotiation tools, automated resolution, machine learning, etc. have been incorporated in ODR to expedite dispute resolution.[15] However, these expositions of ODR may leave huge masses excluded from the same as will be highlighted in the following part.
ODR Through Inaccessible Technology: Further Disenfranchisement from Access to Justice
To begin with, Susskind urges us to understand the repercussions of the use of improper terminology for the system we envision. Terms like “digital,” “virtual,” “online,” etc., are usually understood to encompass a chiefly internet-based mechanism and more advanced avenues like the use of machines or artificial intelligence to make decisions.[16] Such measures will neither be accessible nor reliable to a majority of the Indian demographic. As of 2021, internet penetration in India still stands at less than 50%.[17] Susskind proposes to use the term “remote” to connote a broader array of mediums that include telephonic communications.[18]
The NITI Aayog’s draft policy proposes a framework that uses technology for a “substantial” amount of calculation to “actually resolve disputes.” This will exclude partial use of technology from the ambit of ODR. The parties will be expected to engage with technology for a “substantial” part of the dispute resolution, which may involve various advanced technologies too. The report exalts the use of Artificial Intelligence and other complex technologies.
While a huge chunk of the Indian population now uses basic telecommunication technology like phones,[19] the majority is disenfranchised from advanced technology due to the lack of access and digital literacy. A whopping 90% of the Indian population was found to lack digital literacy.[20] Only 3.5 of every 1000 rural households enjoy internet connectivity, according to the National Sample Survey Office (NSSO).[21]
Definitions like those given by the NITI Aayog’s draft policy fail to include hybrid systems that involve both online and offline elements and may be more feasible at grassroots level. Thus, they limit the use of ODR to a privileged minority that is digitally literate and has access to technology. Under this model, the digital poverty divide may widen. Digital poverty is a new form of poverty deliberated in the United Nations Conference on Trade and Development’s (UNCTAD’s) eCommerce week.[22] It includes the inability to benefit from information and communications technology services due to a lack of access or skills.[23] Thus, even if ODR is introduced through such a model, it would fail to reach the grassroots. This would hamper the ultimate goals of access to justice and expediency in backlog disposal.
ODR for Masses: Suggesting the Way Forward
While the term “online” in ODR frames it as a highly internet-based mechanism, it is wrong to presume that ODR is synonymous with the internet. ODR may include a plethora of non-internet technologies like telephones, wireless phones, offline digital tools like data and word processors, etc.[24] These mediums must be given recognition in ODR. If accepted mediums and technologies are widened, more people may be brought within the folds of ODR with whichever technology they are most comfortable with. This may include highly popular and simple technologies like telephones and wireless phone that are easily accessible at the grassroots also.
The Vidhi Centre for Legal Policy, in its paper on ODR, has advocated the “mainstreaming” of ODR by strengthening the current ADR framework and encouraging innovative ODR models.[25] However, Vidhi failed at explaining what “innovative ODR models” can be used to introduce ODR in the mainstream. NITI Aayog’s report has also discussed mainstreaming ODR but has presented solutions such as spreading awareness regarding ODR and its benefits, incentivising lawyers to adopt ODR, and mandatorily incorporating ODR for certain disputes.[26] These are structural changes whose implementation will take years, and the problem remains the same till then. This part suggests a hybrid model suitable for conducting ODR even in the country’s remote areas.
It must be noted that the existing legal framework already envisages the use of ADR in mainstream grassroots level disputes. The Legal Services Authorities Act, 1987 provides for Lok Adalats in every district to resolve disputes and disseminate justice to weaker sections of society. The Family Courts Act, 1984 mandates that the Courts persuade the parties to settle disputes through conciliation rather than litigation. In K. Srinivas Rao v D.A. Deepa, it was held that the parties in matrimonial disputes must necessarily go through the avenue of mediation before resorting to judicial remedies.[27] Section 89 of the Code of Civil Procedure, 1908 empowers the courts to refer cases to ADR. Section 78 of the Consumer Protection Act, 2019 provides consumer mediation cells at the district level for dispute resolution. Further, legislative steps must be taken to incorporate ADR as a resolution mechanism for more forms of disputes.
Mediation is the most commonly used ADR in India, especially at grassroot levels.[28] The telephonic medium can readily be used in mediation. In fact, it has been a common practice to communicate over phone calls in the process of mediation.[29] However, this has only been an ancillary practice used in pre-mediation and case management while the primary mediation sessions happen physically or over other mediums.[30] In the Indian context, most mediation sessions have taken place physically at Mediation Centres annexed to various High Courts.[31]
Post the COVID-19 pandemic, there have been attempts to shift these grassroots level mediations to other mediums. For example, Chhattisgarh organised India’s first e-Lok Adalat in July 2020.[32] Besides family matters, cases concerning accident claims, cheque bounce, money settlement were also resolved.[33] As of March 2021, the teledensity of India, i.e., the percentage of the population with telephone or wireless phone connections, has peaked at over 87%,[34] while the internet penetration remains at less than 50%.[35] Thus, the current time affords an excellent opportunity to explore the telephonic medium as an alternative to physical mediations. A model example in this regard is the private organisation SAMA that offers mediation services mainly through its ODR platform.[36] The request for mediation, pre-mediation, case-management, mediation sessions, and the drafting and signing of the agreement are all hosted on the SAMA ODR platform.[37] However, recently SAMA has collaborated with State Legal Services Authorities in Delhi, Rajasthan, Gujarat, and Bihar to resolve a substantial number of disputes through ODR based Lok Adalats.[38] In these grassroots level disputes, the parties may come from remote areas with low connectivity or internet access. Thus, SAMA provided an option of telephonic conference calls as the medium for mediation sessions.[39] Realising the potential of telephonic communication in dispute resolution, other countries have also tried exploring this option. For instance, a US law firm had made early attempts at offering mobile applications that allows users to participate in mediation with a mediator using only their mobile phones.[40] Further, New York has also been offering divorce mediation through conference calls.[41]
Since signing the agreement digitally may not be possible in the absence of the internet, smartphones, etc., the parties in these Lok Adalats were given the option to sign the agreement physically in the nearest courts once the mediations were completed remotely. Thus, by integrating online and offline modes, including the telephonic medium, SAMA disposed of a stellar number of grassroots level disputes, many of which included parties who faced immense accessibility issues.
The Indian Postal network, the largest in the world, can also be used to provide parties with an option to receive, sign, and dispatch the final agreement remotely without physically visiting Courts. Indian Postal Network has been widely used to deliver legal documents like notices and summons.[42] It has recently been used during the COVID-19 pandemic to deliver essentials.[43] Since ADR requires a limited sharing number of documents, a mix of telephonic communication and exhaustive postal services has the potential of mainstreaming ADR and facilitating the justice system at large. Such a process of dispute resolution will not differentiate between physical, web-mediated, and telephonic interactions. Instead, it will provide a seamlessly interwoven process facilitating mediations and negotiations to everyone, irrespective of their socio-economic status and digital literacy.
Conclusion
In times when the pendency of the Indian judiciary is already high and physical hearings are not possible, ODR can act as an effective mechanism for resolving disputes. However, ODR has not been introduced to the Indian mainstream yet. NITI Aayog published an exhaustive report suggesting the advantages of ODR, problems faced by India in adopting this system, and the suggestions for the same. However, the suggestions contain more structural changes, which would require years to materialise. It is suggested that attempts can be made towards building a hybrid system that is an amalgamation of offline and online modes of communication. Such hybrid systems can go a long way in making ODR accessible to the masses in India.
The authors, Aditi Mishra and Kavya Arora, are undergraduate law students at the National Law University (NLUD), Delhi and the West Bengal National University for Juridical Sciences (NUJS), Kolkata, respectively.
[1] Online Dispute Resolution Mechanism is a laudable initiative and saves time and cost: Vice President (PIB Delhi, 21 April 2018) <https://pib.gov.in/PressReleasePage.aspx?PRID=1529821> accessed 8 July 2021.
[2] Richard Susskind, The Future of Courts (August 2020) 6 (5) The Practice <https://thepractice.law.harvard.edu/article/the-future-of-courts/> accessed 8August 2021.
[3]Ibid.
[4] Types of Matters in Supreme Court of India (2 July 2021) <https://main.sci.gov.in/statistics> accessed 8 July 2021.
[5] E-courts Services, District and Taluka Courts of India <https://ecourts.gov.in/ecourts_home/> accessed 10 August 2021.
[6] Deepika Kinhal, Tarika Jain, VaidehiMisra and Aditya Ranjan, ‘ODR: The Future of Dispute Resolution in India’<https://vidhilegalpolicy.in/research/the-future-of-dispute-resolution-in-india/> accessed 10 August 2021.
[7] Business Standard, ‘Nilekani Panel suggests measured to boost digital transactions’(3 June 2019)https://www.business-standard.com/article/pti-stories/nilekani-panel-suggests-measures-to-boost-digital-transactions-119060301538_1.html> accessed 9 September 2021.
[8] Deepika Kinhal (n 6).
[9] NITI Aayog Expert Committee on ODR, Future of Dispute Resolution: The ODR Policy Plan for India (October 2020) <https://niti.gov.in/sites/default/files/2020-10/Draft-ODR-Report-NITI-Aayog-Committee.pdf> accessed 8 August 2021.
[10]Ibid 4.
[11]Ibid 10.
[12] UNCITRAL, Technical Notes on Online Dispute Resolution<https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/v1700382_english_technical_notes_on_odr.pdf> accessed 9 August 2021.
[13] NITI Aayog (n 7).
[14] Kathryn Sanger and Anita Phillips, ‘Paddling to Surfing: The Rise of Online Dispute Resolution’ <https://www.herbertsmithfreehills.com/latest-thinking/paddling-to-surfing-the-rise-of-online-dispute-resolution> accessed 8 August 2021.
[15]Ibid10.
[16] Susskind (n 2).
[17] Sandhya Keelery, ‘Internet Penetration Rate in India 2007-2021’ (Statista, 27 April 2021) <https://www.statista.com/statistics/792074/india-internet-penetration-rate/> accessed 14 August 2021.
[18] Susskind (n 2).
[19]Telecom Regulatory Authority of India, Press release no. 16/2021 (17 March 2021) <https://www.trai.gov.in/sites/default/files/PR_No.16of2021_0.pdf> accessed 9 August 2021.
[20]Digital Empowerment Foundation, ‘National Digital Literacy Mission’<https://www.defindia.org/national-digital-literacy-mission/> accessed 10 September 2021.
[21] NSSO Level and Pattern of Consumer Expenditure Report 2011< http://mospi.nic.in/sites/default/files/publication_reports/Report_no558_rou68_30june14.pdf> accessed 11 September 2021.
[22]UNCTAD, ‘Digital poverty needs to be a development priority’ (3 April 2019) <https://unctad.org/news/digital-poverty-needs-be-development-priority> accessed 10 September 2021.
[23]Sumeysh Srivastava, ‘International Literacy Day: Bridging India’s Digital Divide’ (Bloomberg Quint, 8 September 2020) <https://www.bloombergquint.com/technology/international-literacy-day-bridging-indias-digital-divide> accessed 10 September 2021.
[24] Colin Rule, ‘Is ODR ADR’ (2016) 3 International Journal of Online Dispute Resolution <http://www.colinrule.com/writing/ijodr.pdf> accessed 14 August 2021.
[25] Deepika Kinhal (n 6).
[26] NITI Aayog (n 7).
[27] K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226.
[28]Mehka Sharma, ‘Mediation in India’ (December 2018) <https://www.mediate.com/articles/mediation-in-india-articile.cfm> accessed 25 August 2021.
[29] Elizabeth Repper, ‘Mediation update: can parties mediate by telephone’ (Thomson Reuters, 3 April 2020) <http://constructionblog.practicallaw.com/mediation-update-can-parties-mediate-by-telephone/> accessed 25 August 2021.
[30] Ibid.
[31]Manisha T. Karia, ‘Effective Implementation of Mediation in India: The way forward’ (Bar and Bench, 23 December 2019) <https://www.barandbench.com/columns/effective-implementation-of-mediation-in-india-the-way-forward> accessed 20 August 2021.
[32] Ejaz Kaiser, ‘Chhattisgarh organises India’s first e-Lok Adalat’ (The New Indian Express, 11 August 2020) <https://www.newindianexpress.com/nation/2020/jul/11/chhattisgarh-organises-indias-first-e-lok-adalat-2168331.html> accessed 10 August 2021.
[33] Ibid.
[34] Telecom Regulatory Authority of India, Press release no. 16/2021 (17 March 2021) <https://www.trai.gov.in/sites/default/files/PR_No.16of2021_0.pdf> accessed 9 August 2021.
[35] Sandhya Keelery (n 17).
[36]SAMA, ‘Rules and Procedures, 2021’ <https://www.sama.live/rules_and_procedures-2021.php> accessed 25 August 2021.
[37] SAMA, ‘Rules and Procedures, 2021’, Mediation Rule 2 <https://www.sama.live/rules_and_procedures-2021.php> accessed 9 September 2021.
[38]SAMA, ‘Online Lok Adalat’ <https://www.sama.live/lokadalat.php> accessed 10 August 2021.
[39] SAMA, ‘How SAMA Works’ <https://www.sama.live/how_sama_works.php> accessed 10 September 2021.
[40]Fred E. Jandt, ‘Conflict and Communication’ (Sage Publication, 2017) https://us.sagepub.com/sites/default/files/upm-assets/73887_book_item_73887.pdf> accessed 9 September 2021.
[41] Law and Mediation Office of Darren M. Shapiro, P.C., ‘Divorce Mediation Through Skype, Video or Conference Call: Is it an Option?’ (12 October 2019) <https://www.longislandfamilylawandmediation.com/divorce-mediation-through-skype-video-or-conference-call-is-it-an-option/> accessed 11 September 2021.
[42]Rajesh Upadhyay, ‘Pink speed post envelopes with proof of delivery for HC notices, summons’ (Hindustan Times, 26 July 2016) <https://www.pressreader.com/india/hindustan-times-ranchi/20160825/281590944984913> accessed 10 September 2021.
[43]Lalatendu Mishra, ‘Coronavirus | Despite odds, India Post ensures essential services during lockdown’ (The Hindu, 14 June 2020) <https://www.thehindu.com/news/national/coronavirus-despite-odds-india-post-ensures-essential-services-during-lockdown/article31824172.ece> accessed 20 August 2021.
The Journal of Indian Law and Society 