The Emergence of E-Arbitration and E-Mediation as a Dispute Resolution Mechanism
This paper aims to introduce technologically advanced techniques of dispute resolution that have gained utmost importance especially amidst and post-pandemic world. The author aims to shed light on two major ODR mechanisms, i.e. E-Arbitration and E-Mediation. Further, the author through his paper has also highlighted the worldwide scenario of the E-Arbitration and E-Mediation.
The author has concluded that the latter is a far more convenient, time-saving, and effective dispute resolution technique. The author has also suggested further measures to enhance the process and adapt it in a similar manner in which litigation has been adapted in India.
Keywords: Litigation, Dispute Resolution, ODR, E-Arbitration, E-Mediation, Indian Scenario.
Author:- Kashish Khurana, 8th sem student of B.A.LL.B. (Hons.), Faculty of Law, Jagran LakeCity University, Bhopal (M.P.)
In India, litigation is the standard dispute resolution technique that has been opted by the common man for ages. Despite, it being the most popular dispute resolution mechanism, is time-consuming, non-confidential, and costs almost a fortune to the parties. Apart from these, there are numerous other drawbacks of opting for litigation as a dispute resolution due to which the parties to the disputes have begun resorting to Alternate Dispute Resolution Techniques. There are five major alternate dispute resolution mechanisms i.e. Arbitration, Mediation, Conciliation, Negotiation, and Lok Adalat. Though these dispute resolution techniques seem to develop over the previous three decades, their presence and use cannot be neglected in ancient Indian history.
The development of technology and cyberspace has introduced a new dimension to these alternate dispute resolution techniques. Online Dispute Resolution (hereinafter referred to as ODR) is an Online Dispute Resolution mechanism wherein the disputes are resolved via virtual platforms instead of being physically present with the parties. This concept of ODR as a dispute resolution mechanism was introduced in the 1990s. It can take place in two formats, i.e. the resolution of online disputes taking place in the cyber domain and the disputes though arising in the physical world but the mode of resolution has opted as virtual mode. These disputes are addressed by the parties via various online platforms that provide online dispute resolution services.
Amongst all the dispute resolution mechanisms, Arbitration and Mediation are the most popular as well as advantageous techniques of resolution of disputes between the parties. These techniques are advantageous even while resolving disputes on a virtual platform. E-Arbitration and E-Mediation are more convenient due to the intervention of a third neutral party which aids in better resolution of the dispute.
Arbitration is one of the globally recognized alternate dispute resolution mechanisms which is known for its finality of orders and arbitral awards. The revolution of technology and the internet has not just rapidly increased the importance of arbitration through conventional methods but also online platforms. Unlike traditional Arbitration, the procedure of E-Arbitration depends upon the availability, utilization, and knowledge of the technology apart from the financial aspect and availability of the arbitrator. It has been established as a dynamic dispute resolution technique over the years as it changes with changes in technology.
Unlike conventional Arbitration proceedings, E-Arbitration offers more flexibility to the parties. Even though it involves a long process, it is much more convenient for the parties. The first step towards resorting E-Arbitration is choosing the platform on which the proceedings of the Arbitration shall take place. After the platform has been decided, the parties through their legal representatives register themselves on the particular platforms and file claim petitions. The petitions then after being filed are succeeded by the digital signature of the documents by the parties. The fees of the registration and the administrative charges of the arbitration proceeding are to be calculated by the IDRC Arbitration Rules, 2018. This process is facilitated for both types of dispute resolution techniques that are mentioned above. Further, the allocation of Arbitrators is done which is followed by the sending of notices to the concerned parties.
Once the notices have been sent to the parties, the virtual platform completes the procedure of booking time slots as per the availability. These bookings can be for both online as well as offline sessions. This shall be followed by paying up the charges of such booking or registration of slots.
After the date and time for the Sessions of Arbitration has been scheduled, the process starts with the presence of the parties, their representatives, and the Arbitrators along with the one representative of the platform that takes up the responsibility to manage the entire session. If it is an Online Arbitration Session, then the entire process takes place through video conferencing wherein particular meeting credentials are provided to the concerned parties and members involved in the matter.
The proceedings leading towards the signing of the agreement after the issues have been discussed by the parties and resolved with the help of the Arbitrator. In a virtual session, the signing of an agreement is performed by the way of digital signatures.
Mediation is considered the most preferred mode amongst other dispute resolution mechanisms. It is because it is a client-driven process, and the third party or the neutral party only acts as assistance in mediation, unlike Arbitration where the decision of the Arbitrator is final and binding on the parties. However, the advent of technology has brought some changes in the process of E-mediation. Most of the e-service providers that provide a platform to the parties for conducting the process of mediation have replaced E-mediators with technology. In such situations, the system takes inputs from the parties about their issues and provides solutions based upon such inputs. This procedure can either take place via e-mails or video conferencing.
Although Artificial Intelligence has replaced human needs in various instances, there are also such instances where a human can intervene and resolve disputes efficiently. The e-service providers are though providing the services of E-mediation without the intervention of a third party but there have been failures in such situations. The process of mediation is well established because of the intervention of the third party which understands the gravity of the situation and makes both the parties aware of their needs and well-being. The technological advancement negates the human factor in the process which increases the risk of its failure. Some of the e-service providers offer the process of E-mediation as recourse after the failure of the process of Negotiation between the parties.
The entire procedure for E-Mediation is similar to that of E-Arbitration wherein a platform is decided by the parties for the process to be conducted upon which is followed by the registration, booking, payment, and then the proceedings. As the process is non-binding, the parties may or may not agree to the terms and conditions.
Conventional Mechanism or ODR: A Comparison
The conventional Alternate dispute resolution techniques and the online dispute resolution techniques, both have their own merits and demerits. However, the Online Dispute Resolution is still considered a better way of resolving the disputes as compared to that of conventional mode. Following are the reasons:
- Online dispute resolution is more flexible and informal process as compared to the conventional methods of ADR that is governed by strict rules and procedures.
- ODR is more time saving mechanism as compared to that of physical ADR mechanisms.
- ODR is more cost efficient comparatively.
- It is a better mode of dispute resolution when the relationship between the parties has been ruined to a greater extent. It helps in smooth functioning of the proceedings when such parties are at distance. For eg, in matrimonial disputes.
- It turns out to be more convenient in the cases where the parties could not travel to the physical proceedings as they can participate in the proceedings from any part of the world.
Despite the barrier of technological illiteracy and connectivity issues during the procedure, it is still considered as a better dispute resolution mechanism as compared to the conventional methods.
The European Union has been planning developments in the field of ODR since 2004. The Online Dispute Resolution Techniques have been adopted by European Union in 2015. This dispute resolution mechanism has been adopted for the resolution of consumer complaints. In the EU, it is required by all the State members to implement the online dispute resolution mechanisms for consumer complaints. This initiation has yielded good results towards the resolution of consumer dispute resolution in the European Union.
The Online Dispute Resolution Advisory Group of the United Kingdom presented a report titled ‘Online Dispute Resolution for Low-Value Claims’ to the Civil Justice Council in 2015. The Advisory group made a recommendation to establish an online court for low-value civil claims that shall be known as HM Online Court. This was one of the biggest steps towards the implementation of Online Dispute Resolution Mechanisms in the United Kingdom. This report was followed by the ‘Final Report’ on the Civil Courts Structure Review’ by Lord Justice Briggs in 2016 which proposed the introduction of a new online court.
There have been various measures adopted by Australia for the efficient resolution of family disputes. One such mechanism is the Online Dispute Resolution technique. The Family Court of Australia has been equipped with various technological tools to assist them in the resolution of family disputes. The e-filing for divorce matters through the Commonwealth court’s portal is one such advancement towards the implementation of ODR.
There has been a long tussle to bring the Online Dispute Resolution as an ADR mechanism in India. The prolonged litigation has brought hardship to various litigants who approach the court for petty matters. Apart from this fact, the outburst of the Covid-19 virus led to the backlash of cases in courts. This made the introduction and implementation of ODR in India more essential. Niti Ayog, the public policy think tank of the government of India, launched an ODR handbook in April 2021. It was the first step towards the development of an Online Dispute Resolution System in India.
The outburst of pandemics created a lot of complexities in the functioning of the justice delivery system worldwide. These complexities and hurdles made the world realize the need for a technologically advanced justice delivery system. As petty disputes that can be resolved outside the purview of courts do not involve the hectic procedures as that of litigation, such disputes can be resolved with the help of technology. The concept of Online Dispute Resolution was already introduced to the world by some of the countries but it was not yet in common practice. This pandemic and the backlash of the cases in the courts made the world realize that there can be a substitute for the situation. This chain of thought led to the formulation of various ODR techniques by the world along with India.
E-Arbitration and E-Mediation are two such techniques that have been introduced in India with the help of various platforms that provide e-services for dispute resolution. The think tank of the government of India took a crucial step by indulging such platforms to provide a speedier and cost-efficient justice delivery system to the country.
These two techniques are the most common dispute resolution techniques that have been adopted by the parties due to their involvement of third parties in the process who can determine the areas of conflict and suggest/provide the required resolutions.
- ADR Advantages, WIPO, <https://www.wipo.int/amc/en/center/advantages.html>.
- Rainey Daniel, Katsh Ethan, and Wahab Mohamed S. Abdel “Online Dispute Resolution: Theory and Practice” Ch. 1 p. 3 (Eleven International Publishing House, Hague Netherlands, Jan 2012, 1st Edn, ISBN-13: 978-9490947255).
- E-Arbitration, IDRC, <https://theidrc.com/content/e-arbitration>.
- IDRC Arbitration Rules, 2018.
- Growing Trend of E-Mediation, VIA MEDIATION & ARBITRATION CENTRE <https://viamediationcentre.org/readnews/NTY5/Growing-trend-of-E-mediation>.
- Supra note 3, Ch. 17 p. 8.
- Yeoh Derric, Is Online Dispute Resolution The Future of Alternate Dispute Resolution, KWA, Mar. 29th, 2018, <http://arbitrationblog.kluwerarbitration.com/2018/03/29/online-dispute-resolution-future-alternative-dispute-resolution/>.
- Online Dispute Resolution: ODR in Foreign Countries, UNIVERSITY OF MISSOURI, <https://libraryguides.missouri.edu/c.php?g=557240&p=3832249>.
- Holmes Nick, The Online Court and the digitisation of justice, INFOLAW, June 3rd, 2019, <https://www.infolaw.co.uk/newsletter/2019/06/online-court-digitisation-justice/>.
- Vikram, How well has Online Dispute Resolution (ODR) been implemented in different parts of the world?, THE IMW POST, Dec. 4th, 2016, <https://imwpost.com/odr-in-the-world/>.
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