ONLINE DISPUTE RESOLUTION

ONLINE DISPUTE RESOLUTION

By K P C Rao.,

LLB., FCS., FICWA

kpcrao.india@gmail.com

“Let us not negotiate with fear but let us not fear to negotiate”.

John F. Kennedy, former US President

Globalization has been a great stimulation in the process of integration of economies and societies of different countries across the globe. It has been a great tool for breaking economic barrier and envisioning world as a market for trade. In the modern techniques of dispute resolution of commercial conflicts, emphasis has drifted from litigation to arbitration.  As things are never static, emphasis is further   sliding from arbitration to alternate dispute resolution procedures.  Mediation or conciliation is one of the most important procedures of ADR (Alternate Dispute Resolution). Regulation of arbitration laws by conciliation or mediation is a novelty of the modern arbitration law. The drift from arbitration towards conciliation started with the appearance of conciliation legislation, which of late has been increasingly attracting the attention of the international business community. Conciliation may play a pivotal role, particularly in settling   commercial disputes.  It is more economic convenient, speedy, and less formal mode of dispute resolution.  

Pendency of cases in courts across the country has turned out to be a "gigantic problem" with about three crore cases waiting for redressal and the undue delay making people to shy away from justice delivery system. Despite an increased disposal rate of cases, the apex court failed to reduce the pendency as it could not cope with the rising number of cases filed every year. A similar trend was seen at the level of high courts and trial courts. The huge backlog of cases and the interminable delays in adjudication of cases has come to assume critical proportions in Indian Judicial System. Apart from an infrastructural mismatch, the lower judge strength of around 10.5 per a million population is broadly considered an endemic cause for this problem.

Online dispute resolution (ODR) is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. Online dispute resolution (“ODR”) is conceived as a means to achieve some of the most powerful legal ideals of the Western legal tradition, which include :

              (1)  Legal Certainty:

In making individual plans, decisions, and choices everyone is entitled to know what the law is in advance.

              (2)  Access to Justice:

Everyone involved in a dispute shall be entitled to an easily accessible redress mechanism that provides for a timely resolution and effective remedies at reasonable cost.

ODR is concerned with the civilized (i.e. peaceful) resolution of disputes between private parties, and, secondly, with the prevention of such conflicts through the provision of legal certainty. National legal systems fulfill the former function by offering plaintiffs to litigate disputes before state courts which exercise mandatory jurisdiction over defendants, and the latter by making the litigation process public, thus allowing for the proliferation of precedent, as well as by the enactment of codifications of rules of law.

Regarding the dispute resolution function of private law, there are a variety of functional equivalents to litigation available, which are collectively referred to as alternative dispute resolution (ADR). On the one hand ODR relates to the resolution of disputes that result from online conduct, i.e. from communications and transactions which come about through the use of the Internet Domain name disputes are a prominent example as are disputes related to e-commerce. On the other hand, ODR relates to the use of online communication technology in the resolution process, even if the dispute itself has an offline origin. The provision of alternative dispute resolution (ADR) services on the Internet has become quite popular. Online dispute resolution (ODR) in India is in its infancy stage and it is gaining prominence day by day. With the enactment of Information Technology Act, 2000, e-commerce and e-governance have been given a formal and legal recognition.

Human beings, when it comes to disputes relating to money or status, are all the same, everywhere round the globe. Selfishness, strength of money-power for protracting litigation or ego are common features.  If the conciliation /mediation solutions have been successful in other countries, they must and will succeed here also.  Where the problems are same, the solutions could be similar, though there may be differences in degree or the methodology adopted. The procedure for conciliation/mediation are today part of the systems of almost every judicial administration both in common law countries as well as in countries governed by civil law systems.  The fact that we have woken up in 1999 and have started to enforce sec. 89 of the Code of Civil Procedure only from 1^st July 2002, should not matter.  Better late than never. It is vital that every Bar council, every Bar Association and every lawyer to give conciliation/mediation higher priority than adjudication and give the litigant a reasonably good chance of settling the disputes so as to save time, money-leaving more complicated and tougher cases and the criminal cases to pass through the adjudicatory process.

[Published in Circuit, Monthly magazine of ICAI, Hyderabad 

and 

Corporate Secretary, Monthly magazine of ICSI, Hyderabad]