Deepika Kihnal, who leads the judicial reforms team at Vidhi Centre for Legal Policy, is confident that the Covid-19 crisis is going to force a change in the way people look at ODR. “The legal sector is finally forced to adopt technology. With the sector embracing technology, it is only a matter of time before disputes start getting resolved online,” says Kihnal. She thinks this will lead to a rise in online ADR mechanisms, followed by court-annexed ODR.
Kanchan Gupta, co-founder of Centre for Alternate Dispute Resolution Excellence, which is working to provide a private online platform, is already seeing an increased level of interest from clients, following the closing down of courts.
Experts say ODR cannot take off in India without active work from the government and the judiciary. “It is important the judiciary’s digitisation plans enable all stakeholders in the justice system to exchange information digitally. This is best achieved by building a justice platform on open standards and modular principles,” says Surya Prakash, fellow and programme director at DAKSH.
Prakash believes while the government should work actively to take the judiciary online, it should be wary of engaging with the ADR system and allow the sector to evolve by itself.
Recognising that this cannot function in a regulatory vacuum, he suggests the government could explore the possibility of eADR modules. “The recently formed Arbitration Council of India could act as a standard-setting body from a technology perspective to encourage institutional arbitration.”
Several private ODR platforms have also emerged in India in recent years. Kinhal, who also works as policy consultant for one such platform, argues the government will be required to work in unison with private entities. “The judiciary is already buckling under the existing burden. The only way to resolve new-age disputes, especially the post-COVID disputes, in a timely manner, is if they are routed to ODR platforms.”
Following the international regime, the government could help eradicate the concerns related to ODR platforms, such as the ability to provide unbiased and fair dispute resolution, data protection, privacy and most significantly, the enforceability of awards, say experts. “To build the public’s trust and confidence in ODR platforms, the government needs to issue guidelines on the minimal standards of fairness and data protection that these platforms need to adhere to. As for the judiciary’s ODR capability, the government needs to provide sufficient funds and expertise to help phased adoption of ODR,” says Kihnal.
Gupta points out though the law allows ODR mechanisms and gives freedom to arbitrators to take the resolution process online, the biggest hurdle is lack of awareness. Experts suggest the government publish a list of approved institutions and push for a policy shift requiring civil disputes to first go through an ADR process.