Author: Urja Jain Student, Bharati Vidyapeeth, New Law College, Pune
ABSTRACT
The accelerated pace of technological change has made more people integrate the internet into their daily lives in numerous ways, which has now expanded its circumference and has acted as a colonist in establishing an efficacious online justice delivery system through various methods of dispute resolution. With the ever-changing technological trends in this developing world, the modern and the most effective mechanism of dispute resolution is Alternate Dispute Resolution. It has become the most desirable means of dispute resolution which is not visibly a part of the judicial system of the country but has acted as the pioneer in resolving the disputes between the parties. Resolving disputes through the electronic medium using the methods of ADR turned out to be more effective and less complicated in this era of technology. In, this article we will focus on how technology can assist in the Online Dispute Resolution process for its effective working. In the first half of the article, we will focus on the preliminary aspects of the ODR such as the definitions and the phases of development made in ODR with relation to technology. While in the second half of the article we will generally look after the modern outlook towards dispute resolution and also its implementation in the field of Arbitration and Mediation. This article will ensure to inform the readers about the evolution in the dispute resolution processes via electronic communication usage of modern technology.
INTRODUCTION
In Roman Mythology “JENUS” is a God for both war and for peace, in the same way, technology in today’s world is recognized both as a boon and as a ban. Technology in these changing and opportune times is increasingly penetrating in every sphere of human life. Internet as a medium has revolutionized many spheres of life and has also played a dominant role in the delivery of justice. It has led to the computerization of law and has reached global populations who have remained un-served for a generation without any geographical restrictions. As a result of the destruction caused by the First and Second World War the disputes relating to agreements, business contracts, and partnership agreements have arisen and an urgent need was felt to have a quick, speedy, effective, and consumer-friendly justice delivery system. The Alternate Dispute Resolution System has filled that void and has become a more acknowledged and systematic system of resolving disputes by offering all forms of platforms such as Arbitration, Negotiation, Mediation, and, Conciliation for diplomatic and peaceful discussion for resolving the disputes between the parties. Dispute Resolution combined with modern multifaceted technology is perfectly suiting the requirement of resolving the disputes both nationally and internationally without overburdening the court. There are several statutory provisions relating and governing these Online Dispute Resolution programs depending on the countries and their territorial guidelines. We can understand the delicate foreplay between society, law and, technology by assessing how technology is helpful in Dispute Resolution mechanisms.
ONLINE DISPUTE RESOLUTION AND ITS EVOLUTION
One cannot understand the future of Online Dispute Resolution without looking to its past. Since earlier times, far-reaching changes were being witnessed in this process and for its analysis; it is prominent to discuss its evolution. Online Dispute Resolution system generally refers by most of the researchers to the use of Alternate Dispute Resolution Methods such as Arbitration, Negotiation, and Conciliation and, Mediation in resolving the disputes through the internet or electronic communication and also resolving disputes online in courtrooms. There are several phases of evolution of the concept of an online dispute resolution mechanism. In the first phase somewhere between 1990-1996, trials or testing for finding out the electronic solutions were done. While in the later stage in 1997-1998 the development of ODR was seen and it is in this time when the web portals were established after that the business started taking place and then led to an era of globalization[1]. By early 2000 the economic developments were initiated, a large number of business institutions were established and the evolution of ODR begins and various techniques were introduced in the courts and to Arbitration Institutions. The most effective method of dispute resolution at that time was Mediation. Parties used to file complaints through online medium and then the mediator and the other parties used to respond via e-mails[2]. Several portals were being entrenched one among them was “CYBERSETTLE” which was invented in the US. This portal had successfully initiated the concept of automated Mediation. The effective working of these portals was calculated from the attributes such as maintaining confidentiality among the parties and also offering them a more suitable solution for their mutual benefits. But these online portals were also subjected to criticism as installing such robust systems requires heavy capital and licenses from the government. Because of this mismanagement, a large number of people have to face problems related to the loss of information and personal data.
MODERN PHASE OF DISPUTE RESOLUTION AND TECHNOLOGY
The Modern phase of dispute resolution concerning technology can be understood through two perspectives that is the use of technology in the Courtroom and the Online Dispute Resolution mechanism[3]. Gradual migration of dispute resolution activities to online cyberspace has been witnessed since time due to commercialization of online communication, computerization of information, user-friendly service providers, and also due to increasing AI technologies[4]. The new cost-effective accessibility of e-mails, chat messaging and conferencing instruments has led to streamlining ODR and provides a system for collecting, processing, and operating the data with the help of which parties can maximize their gains.
COURTROOM TECHNOLOGY:
Courtroom technology generally deals with the digitalization of various practices and records through videoconferencing, case management system, filing of complaints via the online portal, access to information electronically, services offered via e-mail, computerization of shreds of evidence, and many more. The proper functioning of these practices depends on the statutory framework and legislative approval. In this current time of pandemic where the world is witnessing the biggest setback in almost every field of development from economic to social activities, a very good example of technologies usage can be seen in our country by looking at the continuous and uninterrupted justice delivery system through online procedures via videoconferencing and filing of cases and petitions through online portals and e-mails. We can very well take the example of the High Courts and the Supreme Court of India which are tirelessly working towards achieving and providing better services to the citizens of the nation. Implementation of technologies is a one-time investment that comes with a low cost of maintenance for a lifetime which may permanently lead to the reduction of labor cost. Technology also played a dominant role in resolving disputes on an international level and has ensured friendly relation between the countries and helped in maintaining strong trade relations among the developing and developed countries.
ONLINE DISPUTE RESOLUTION
ODR is seen as a pioneer in dispute resolution mechanisms, having its roots as the first web application as early in the 1990s.[5] Earlier ODR was generally preferred to the settlement of disputes which are of less value and are facing some challenges relating to the cross- broader litigation. These claims were dealt outside the court without conducting and court proceedings in the form of Alternate Dispute Resolution. In these kinds of processes, the resolution is based on the consent of parties and mutual agreement between the parties. Electronic dispute resolution and ODR are the automated dispute resolution mechanism which is conducted with the assistance of a computer. We can take the example of the Law Council of Australia which has established an online Mediation platform dealing with family law disputes, workplace matters which include discrimination, harassment, termination, and dispute relating to compensation and also helps in resolving the disputes relating to contracts in the field of construction and partnership, etc. The provision of online services is considered as the bon ton of efficient, accessible and, transparent commercial and government operations.[6] The resolution of consumer disputes that arises from commercial transactions by electronic communication is also a great example of the implementation of ODR practices in the field of consumer disputes. E-commerce disputes are not personal so the technique which minimizes the interaction is most effective in resolving the disputes between the parties.
THE RISE OF ADR IN ONLINE DISPUTE RESOLUTION MECHANISM
The concept of Alternate Dispute Resolution is not new and is been practiced since time immemorial. ADR has acted as a colonizer in discovering the methods and determining the disputes which are cost-friendly, efficient, speedy, and easily accessible to people globally. The usage of ADR has become wide and institutionalized with time. With the increasing number of e-commerce transactions, disputes relating to the internet are rising. The traditional justice delivery system is falling short in dealing with the issues and consumers’ expectations regarding the resolution of disputes. ADR in these terms is the most preferred form of dispute resolution. By 1980s the methods like Arbitration and Mediation were widely used in resolving disputes relating to a variety of issues lead to the shifting of cases from courts to ADR. In India, we have the Arbitration and Conciliation Act, 1996 for dealing with the cases of ADR and harmonizing the principles of UNICTRAL Model Law. The Act has been gone through several amendments with the changing needs of society. The amendment made in the Code of Civil Procedure, 1908 by the introduction of section 89 was made to provide methods to ADR in India and mostly Mediation. The use of technology in Alternate Dispute Resolution Mechanism is increasingly acknowledged and appreciated by the parties because of its organization and sufficient training is given to deal with the online cyberspace so that the justice delivery system runs efficiently and without any interruption. In online cyberspace, it is very essential to ensure the preservation of personal information without compromising the confidentiality of the parties. Access to e-documents and presentation of evidence by the witnesses is a tough task to be monitored however ADR is governing it systematically. We can take the example of “Automated Negotiation” in which the technology takes over the negotiation procedure through the process like double-blind biding and virtual blind biding. In these methods the offer and the demand of the parties are kept hidden during the negotiation process, negotiation commences when one party invites the other party to negotiate the amount of money in dispute and the technology settles the disputes in the mid-point of the two offers without any human resource. Another example is of Arbitration procedure which is preferred in resolving disputes online as the parties were given opportunities to lodge the complaints online via e-mails or dedicated web portals and were also given the advantage of conducting the proceeding online without any physical appearance.
THE UNIFORM DOMAIN NAME DISPUTE RESOLUTION POLICY
The Uniform Domain Name Dispute Resolution Policy (UDRP) is created by the Internet Corporation for Assigned Names and Numbers (ICANN)[7]. It is the perfect example of how ADR processes can be conducted through an online dispute resolution mechanism. Some people consider UDRP as an administrative process. UDRP has developed and invented a transparent global ODR process that allows the trademark owners to fight with Cyber squatting effectively and efficiently. The UDRP is used to resolve disputes between trademark owners and those who have registered a domain name in bad faith to resell it for a profit or take advantage of the reputation of a trademark.
IMPACT OF ONLINE DISPUTE RESOLUTION
Emerging new technologies have allowed the dispute resolution practitioners to provide quality of services which are cost-efficient and less time consuming as compared to the existing justice delivery system. They use the instruments such as contract review, due diligence which help them to provide a more accurate and systematic solution to the problem. Online Dispute resolution has also played an important role in enhancing and maintaining diplomatic and peaceful relationships in the international community. It has indisputably helped in solving the cross-border issues which are very difficult to solve physical and has strengthened the ties between the international communities. In terms of guaranteeing the confidentiality and protection of personal data of the entities that participate in ODR practices, the resolution refers to provisions of the Directive of the European Parliament and Council of 24 October 1946 were formed to preserve the free flow of the personal data of an individual.
Besides the positive aspects of the dispute resolution mechanism it has to face a lot of criticism by the citizens as a large amount of the population is vulnerable to the latest technological trends and are unaware of the various policies and programs made by the government as a result, they remained un-served with justice. The biggest disadvantages of online dispute resolution in terms of the application of ADR methods like Mediation and Negotiation are that they are non-binding processes and cannot produce a precedent. While the other criticism may include that all the parties related to the dispute must have adequate technology to participate in ODR processes whether in courts of ADR. Parties with language and writing difficulties are in a disadvantageous position in these processes. It is sometimes very difficult to conduct court and trial proceeding via online modes and there is no personal or physical interaction of parties to the court and it becomes very difficult to monitor the witness’s testimony in the case. In cases of family disputes court sometimes allows couples to appeal decisions or correct mistakes before finalizing the divorce but with online dispute resolution, there is no avenue for the correction of mistakes once the dispute has been decided. Cyber dispute resolution mechanism also offers a set of concerns regarding the privacy and the security of information shared online. Complaints through email and messages do not express the pitch, tone, or volume which is the crucial and essential instrument in establishing confidence among parties by the lawyers in the agreements.
CONCLUSION
The main objective behind the introduction of Alternate Dispute Resolution, Online Dispute Mechanism, and Introduction of technology in the administration of justice was to ensure that a large amount of the population is effectively and systematically experiencing access to the justice delivery system. The modern phase of dispute resolution has changed with technology as earlier a large number of issues are faced by the courts in terms of jurisdictions and cross-border disputes and the enforcement of foreign judgments but this problem has been solved by the digitalization and computerization of information. Secondly, online transactions and proceedings are of low value as compared to typical court proceedings which were conducted earlier. Thirdly, witnessing the large amount of case related to e-commerce and disputes relating to partnership contracts, trading contracts it becomes easy to resolve these disputes through a specialized system that can handle the disputes efficiently and effectively[8]. ODR is growing tremendously in terms of scope, quality, variety, and the multitude of ODR systems that have proved that technology is very helpful in the administration of justice. As the ODR processes technologies within courts and private activities have gained momentum, the incorporation of ADR has been started and paved a greater emphasis and provided legitimacy in the delivery of justice. Processes like Mediation, Arbitration, and Negotiation have gained greater significance in resolving disputes both at the national and international level with greater efficiency and reducing the burden of the court. For this new Dispute Resolution which is coupled with technology it is very necessary and of prominent value that the systems should be user-friendly and should be protected with the layers of confidentially and with the protection of citizen’s data. They shall be flexible enough to deal with a variety of disputes and shall provide a more accurate and less complex solution to parties. Training programs among the government official officials and various dispute resolution practitioners shall be initiated so that the delivery of justice shall not be compromised.
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End Notes
[1] Karolina Maria, Online dispute resolution: the future of justice, International Comparative Jurisprudence, Volume 1, (NOV 2015), https://www.sciencedirect.com/science/article/pii/S2351667415000074
[2]Orna Rabinobich-einy & Ethan Katsh, Technology and the future of dispute system design, https://law.haifa.ac.il/images/Technology_and_the_Future_of_Dispute.pdf
[3]Rikka Koulu, Law technology and dispute resolution –privitization of coersion, (first edition), 2019.
[4]Supra2.
[5]Orna Rabinovich-Einy & Ethan Katsh, Technology and the future of dispute system design, https://law.haifa.ac.il/images/Technology_and_the_Future_of_Dispute.pdf
[6]Ayelet Sela, The effect of online technologies on dispute resolution system design: antecedents, current trends, and future directions (Jan 2017),https://www.researchgate.net/publication/335125466_THE_EFFECT_OF_ONLINE_TECHNOLOGIES_ON_DISPUTE_RESOLUTION_SYSTEM_DESIGN_ANTECEDENTS_CURRENT_TRENDS_AND_FUTURE_DIRECTIONS
[7] Online dispute resolution, WIKIPEDIA ,https://en.wikipedia.org/wiki/Online_dispute_resolution
[8]Supra7.