Online Dispute Resolution post Covid-19

Online Dispute Resolution post lockdown period

To many of us who live in reasonable comfort at home, frustrating though it may be that we are so confined, we are perhaps living without conflicts. If they do exist, they ought to be on some small domestic issues which will get resolved all too soon. But there are ever so many disputes of over 32 million cases that await adjudication in courts. In our endeavour to find solutions to existing conflicts or that may crop up in future, it is propitious occasion to discuss how online dispute resolution (ODR)could bring results. How do we make good, opportunities to turn the present-day adverse circumstance to productivity for resolving conflicts?

Imagine a time when a situation like this present lockdown had happened before the advent of personal computers and internet connectivity. Social distancing at that time would have meant actual and virtual seclusion; an abandonment to the confines of four walls; a suffocation indoors. It is nerve racking to even imagine sanity to persist in us. At a philosophical level, this lockdown is perhaps a reminder that we need to slow down; at this rate, we will ravage nature; we will have dismantled every institution that we have built over the years and that includes the formal institution of justice dispensation that we have, such as court and the men and women that run this institution.

ODR not merely as ADR

Whenever we discussed online dispute resolution (ODR), we imagined it as a private enterprise mechanism, like PayPal or ebay who would help resolve consumer related disputes within a stipulated time. Later, when we were examining conflict resolution for all types of disputes, including commercial and matrimonial woes, we were many a time alluding to what we must create outside the court systems, as an alternative to justice delivery through courts. We have several formulations of ADR, prominent among them being arbitration, mediation, and an indigenous institution like Lok Adalat with statutory backing through Legal Services Authority operating under the Court’s direct supervision. In my view, ODR is just not outside the court system but inside of it, as well. Much of the popularity of mediation has come through court annexed mediation, that is, of referrals of cases already existing in courts to be deflected to mediation centres attached to them. Same way, if we must popularise ODR, it must begin from an institution that is harbouring a huge volume of disputes concretised through our dockets, preserved in the compactors of the record sections of our courts and the cabinets of lawyers’ chambers. The courts must open ways of inaugurating access to justice through internet. We have known of some paperless courts, but they still happen within court premises, of judges who arrive in courts; lawyers arrive in courts with their laptops, argue in courts and get their verdicts their usual way.

Acquired skill shall not be wasted

Now, many courts and to start with, the Supreme Court itself, is allowing e-filing of cases and hearing arguments online, passing immediate orders or reserving orders, passing them later and posting them online. This will soon alter; we will have our courts reopened and our routines of lives through noisy corridors and bustling activity in and around our courts and lawyers’ chambers will resume. We shall not put to disuse an important acumen that we have acquired through this lockdown.

The way forward shall be for courts to consign some types of cases as fit only for ODR platform; to start with, it shall be in the arena of accident claims and small value monetary claims less than, say, ₹100,000. We have the judgment of Justice Sikri, pronounced on the last day on his Bench at the Supreme Court on 5.3.2019, in M.R.Krishnamurthi v New India Assurance Co Ltd that can provide the template for how courts will integrate ODR in their systems. The judgment contemplates setting up of an independent Motor Accident Mediation Authority (MAMA) and enable all claims to be put through this body to effectuate settlements in all motor accident claims and till such authority is set up by the government, the Legal Service Authority itself to work through this mediation committees operating at various levels, taluk level upwards, to promote settlements, where the insurance companies shall be mandated to offer settlement figures based on well laid down parameters for determining compensation. All land acquisition cases, where we have all access to revenue records for market valuation of properties and every other detail that are necessary for reckoning just compensation shall go through ODR mode. On the criminal side, all traffic offences shall go ODR way. The evening courts that we started with big fanfare, have been damp squibs. We shall re-energise them through this process.

Shed adversarial posturing; adopt collaborative approach

Outside the court system, Covid-19 reminds us that adversarial posturing in litigations, the way they pan out, will not just work well. Lawyers require new skills, that is not ceding authority to courts or looking for third party adjudication. Mediation and negotiation are the way to go. In several platforms and blog posts, you hear or read experts saying about contractual obligations could go for a toss with force majeure situations that could modify, abrogate, or make impossible contractual obligations to be performed. The road to re-engineer these contracts shall consist in negotiating for fresh terms, wherever possible or re-adjust rights and obligations that will work to mutual advantages. Courts just do not have the right answers to force majeure and acts of god situations that have altered the possible outcomes in every so many ways through human interactions. Negotiation as a tool that is just not splitting the difference but brings a novation to arrive at a new starting point or a mediatory process that opens a window for a win-win opportunity to settle for more. If there is a takeaway from what this lockdown has taught us in the world of conflict resolution, it has prepared us well to address adversities through ODR.

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