This article is written by Ramanuj Mukherjee, CEO, LawSikho.
The immediate future in India looks quite grim as social distancing & lockdown seem to be the only measures we can adopt to avoid contracting this virus. The virus is not really slowing down though. It looks like we can be in social distancing and lock down mode for a very long.
How long? It has been five months already. And it looks like COVID has not even peaked! There is a long way to go before there is any vaccine or herd immunity. Few months for sure. And definitely could be more than that, though we hope it would not be the case.
Anyway, while lockdown can open, social distancing in the workplace is bound to continue for the foreseeable future. Businesses are giving up their office leases and announcing remote first work cultures.
What would the legal and justice system do?
Given that most of our SC and HC judges, and many senior advocates are senior citizens and especially vulnerable to the virus, I do not see any chances of courts opening up anytime soon.
Hopefully they will expand their hearings though. Perhaps this will lead to the introduction of superior technology for filing and managing court administration. Hopefully some modicum of efficiency will be introduced into the system! Imagine having ongoing state wide analytics on pendency of cases or vacancy of judges! Would that not be so useful for policy making?
India’s judiciary has a known history of delays & long vacations causing mass pendencies of cases. The fault is not that of judges, but primarily of the government which does not invest enough money in setting up new courts or appointing new judges. Court system is choked with too much work while it has very little resources. It is also a drag on the economy and drives away investment. When you are not able to cheaply and quickly enforce your contract, imagine the cost borne by businesses!
The lockdown has made the situation even worse as lakhs of cases are delayed. The judiciary remains overburdened and clogged with a number of cases it can’t deal with. What would happen even when courts open up? Given the number of disputes arising out of broken promises during the pandemic, millions of new matters are likely to be filed.
How will the court system, already bursting at the seams, and failing to deliver any results within a reasonable time limit, be of any help?
On the other hand, many lawyers are starving due to lack of work! Notice was issued by the Supreme Court in a case where a lawyer appealed that lawyers may be allowed to take up other work in order to survive, and that they should be allowed to advertise!
We are staring at a disaster in India’s legal system, as well as the financial situation of lawyers, that is unheard of so far!
Can technology offer some solutions should Indian judges be willing to adopt such technology?
Can private parties do something to make things better for themselves?
That is where the promise of ODR i.e. online dispute resolution, holds a lot of appeal.
As the pandemic progresses, industries & administrations across the world are forced to plunge into using technology to continue their functioning. We always knew that shift to technological devices would be inevitable at some point, but this appears to be a great opportunity to save the legal profession and the legal system while ushering in more efficiency that will make the lives of litigants simpler at the same time.
What a win-win-win deal!
We have resisted and delayed the inevitable march of ODR due to the comfort & familiarity that our traditional processes offered.
Our judiciary has arrived at crossroads, where the most reluctant practitioners and traditional courts have to learn to rely on technology to handle cases & disputes.
But that is just the tip of the iceberg. Online dispute resolution means parties will resort to online arbitration, conciliation and mediation as well.
Most arbitration is likely to go fully online and would it not be a wonderful thing!
Understanding virtual courts
There are ongoing efforts by the judiciary of digitising our courts of law. They are looking to adopt a sustainable solution that is effective, scalable, and collaborative.
Most courts have permitted online filing and hearing of cases since lockdown, and that has made life easier for lawyers and litigants by a great deal. There are some lawyers who are facing some difficulty due to lack of familiarity with technology, but everyone is learning fast.
We can finally hope that online filing in courts will become a long term solution. It would reduce cost and make things simpler for the common people of India.
However, right now only urgent matters usually are being heard by courts. One must wonder how long the courts need to remain semi-functional in this way and people keep suffering before the judiciary will finally realise that they can’t keep courts closed on non-urgent matters any longer, and find a way to function fully online.
That would be nothing short of a revolution!
Lawyers will be the biggest beneficiary of this revolution, of course. They will be able to appear in any courts they wish to, will not have to wait for too long for hearing, waiting for their matter to be called nor will they have to travel long distances, usually in traffic, to go from one forum to another.
But this means the juniors who run around in courts taking only pass overs, or rely on the inefficiency of the filing system in the court to make money, will find themselves jobless.
Well, upskilling is the only way for them!
And outside the court, there will be ODR – for private parties to take their disputes privately to an arbitrator or mediator, online, ideally through an arbitral or mediation institution!
What is ODR?
ODR essentially involves resolving disputes (particularly small and medium-value cases) in an efficient manner online, by applying methods such as conciliation, mediation or arbitration. They bring on board technology and often a panel of impartial independent experts.
The ODR mechanism is internationally recognised as a highly effective form of ADR. People have even built novel block chain based solutions for ODR!
At a time when businesses are looking to cut legal bills, those with a large number of litigation will definitely see the appeal of ODR, especially those who have a high volume of low-stake cases. Banks, NBFCs, utility companies and others with large scale money recovery issues will find ODR to be the answer to their prayers. It can be a gamechanger for them!
Individuals can also benefit a great deal from ODR. Think how much easier it will be to get money from your insurer if they know you can sue them easily and cheaply. Will your landlord treat you badly if dispute resolution is easy? Will employees be able to deny salary to their employees or employees casually breach their employment agreements if ODR was the norm?
SMEs which usually stay away from courts due to costs and time issues, will also be a huge beneficiary of ODR if it was effectively implemented in India.
Overall, I believe that the introduction of ODR will have a measurably big impact on India’s GDP, because it will remove an inefficiency that affects every transaction and every business in India, in one way or the other. Is it surprising that there is no advanced economy in the world without a very efficient, reliable and trusted adjudication system?
Several countries like the U.S.A, Brazil, China, and some EU nations have already adopted the use of ODR by constituting separate platforms for dispute resolution arising out of e-commerce transactions.
Even in India, we now have the concept of virtual traffic courts.
When can we hope to see wide adoption of ODR that can change not only the justice system, create a lot more work for lawyers, and improve the Indian economy itself!
What are the advantages of ODR?
It is faster
India has seen notable growth in the volume of disputes related to transactions, consumer problems, etc. due to the boom in connectivity. ODR seems to be the most convenient option that offers an efficient mechanism to implement a faster dispute resolution system.
It is transparent and fair
In a country like India where backdoor techniques are less of a crime and more of a way of life, bribing and using influence for a favourable outcome is a major hindrance for justice.
Technology is historically known to reduce discretionary powers and undue influence. Imagine if all your proceedings were recorded because they were online. Will it be possible for an arbitrator to act in a biased manner, knowing that there would be evidence of the same? ODR will assure a fair & transparent system of dispute resolution.
It is inexpensive
Originally, arbitration was designed as an alternative to going to court and engaging in time expensive litigation for every kind of dispute. However, with time the method of ADR itself has become increasingly complicated & expensive. ODR can help resolve disputes efficiently and affordably.
What is the future of access to justice?
In India, virtual courts and ODR have become the need of the hour. There would be some lawyers who will oppose it, as they oppose anything that is new and different. However, it appears to be only a matter of time before ODR really catches fire in India.
ODR is the future of access to justice.
A hybrid version of physical + virtual ODR
Irrespective of how life unfolds after the pandemic, online working will be a significant part of a lawyer’s daily life. No matter how viable the ODR mechanism is, we cannot forget that in-person mediations have traditionally been the most effective. Post lockdown, it is most likely that a blend of in-person and online resolution of disputes will become the new normal.
Inexpensive matters may go online quickly at the least, while matters with more money or rights at stake may still remain offline.
In some matters, the physical + virtual model may make more sense.
In the courts at least, we are likely to have two modes of filing for example, both online and offline, until the vast majority of lawyers will shift to online and offline filing would fade into sunset. It is likely that courts may allow online and offline appearance of parties and counsels, both at the same time, as per their choice. This would be a perfectly reasonable thing to do post lockdown.
Increasingly porous borders when it comes to legal services in general
ODR makes sure that every lawyer in the country has a level playing field now. Smart, hard working lawyers can sit anywhere in the country and argue matters for their clients in a different city, state or even country. Clients save up on money on travelling expenses and lawyers save up on a lot of time when it comes to ODR. They can also access a much larger market!
What are the challenges?
Immediate need of a good tech platform
ODR is not just about online connectivity. It requires a tech platform that suits your needs and is secure. The design cannot be the same for platforms resolving family and e-commerce disputes, there is a need for great deal of innovation. There are a few startups that offer virtual mediation or arbitration rooms. Hopefully, we will see some breakout products in this genre soon.
Resistance from various stakeholders
The biggest challenge will be dealing with the system and the stakeholders. Bar associations have repeatedly called for starting physical hearings in all courts. BCI itself has expressed concerns that online filing should only be a temporary measure because most lawyers can’t deal with these new systems!
The plea has been that the fraternity is still not familiar with the usage of sophisticated systems of filing and arguing in a virtual environment.
However, their requests are probably not viable.
We have seen in the recent cases in Gujarat and Kolkata where courts had to be shut because a lot of people tested positive.
Physical hearings seem impossible at the moment. The fraternity will have to take a plunge towards virtual hearings and ODR.
And lawyers will soon get used to online systems as they use it for another few months.
Top ODR platforms in the world
Millions of disputes have been solved in various countries in the world through ODR. It first witnessed a boom in the ebay, paypal where these companies started resolving their disputes online. Here are some of the platforms which seem unique in their approach and have made a name for themselves in the ODR world:
Kleros
A very interesting open source platform which uses blockchain technology and crowdfunding to help adjudicate disputes. It markets itself as the world’s first decentralized court. It is used by businesses for arbitration in their contracts.
The EU ODR platform
The platform which created ripples in the whole world is the EU ODR platform, it is provided by the European Commission to make online shopping safer and fairer through access to quality dispute resolution tools.
WIPO
The World Intellectual Property Organisation also provides for online dispute resolution, they handle disputes arising out of registration and the use of internet domain names.
Different countries have carved out various other ODR platforms to resolve e-commerce disputes in their own jurisdictions.
Top ODR platforms in India and what they are upto
SAMA
Sama is trying to solve a lot of disputes between consumers and businesses, employers-employees, landlords & tenants in a fast and effective manner. They are looking to resolve disputes online. They have developed online systems for both conciliation and arbitration. It is being used by ICICI to resolve around 10,000 disputes with values going up as high as INR 20L.
CADRE
The Centre for Dispute Resolution Excellence or the CADRE is an arbitration dispute resolution service provider. The centre specializes in providing services to peer to peer and small, low value disputes using simplified procedures, a technology platform and certified trained arbitrators. The rules are within the framework of the Arbitration and Conciliation Act, 1996.
Presolv360
Presolv360 is a legal-tech online platform which specialises in commercial dispute resolution. It markets itself as a 21st century digital solution to the 19th century dispute resolution laws. They offer arbitration and mediation services.
Law Wagon
They also provide e-adr services mainly in IBC and commercial matters. They charge for all the time spent on the legal case including meetings, hearings and time spent conferring with counsel outside of the hearings.
Centre for Online Dispute Resolution (CODR)
It positions itself as a platform which administers cases online, they are mainly focusing on arbitration training and plan to do full fledged ODRs soon.
AGAMI
It is not an online platform for ODR. However, Agami is an organisation which exists to increase entrepreneurship in law and justice. Agami pledges to resolve 1 million disputes by ODR. They have an altogether different initiative which deals with the expeditious development of ODR in the country. They have pledged to accelerate startups, create demand amongst businesses and the society & government.
Various arbitration institutions that offer ODR services
All major arbitration institutions have come up with new rules after the onset of the global pandemic. This includes the LCIA, SIAC, HKIAC, ICC, ICSID and all the other global arbitral institutions. The ICC guidance note has been everyone’s inspiration and it provides a checklist and a draft procedural order which will be useful and beneficial for the whole dispute resolution community.
Way forward
Covid-19 has instilled an urgent demand for technological means and decisive action, with the possibility of a spurt in disputes & cases before the court as well as arbitration institutions, mostly in fields like lending, insurance, property, commerce, and retail.
As India tries to reboot its economy, the legal industry must be advised to employ ODR techniques across the country as an increase in domestic and international disputes emerging from the coronavirus pandemic are anticipated. At the present moment, there is no other choice.
How can we help?
This is the time to upskill yourself. Learn as many relevant skills as you can. You will have to be prepared for what is coming next. Our learners always have an edge over any practice area that they want to be skilled in.
You should check out the arbitration course and the commercial litigation course. If contracts interest you, LawSikho also offers a diploma in contract drafting.
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