[BWLW Saturday Solutions] Online Dispute Resolution In India
In BW Legal World Saturday Solutions weekly webinar an eminent panel of lawyers discussed about the Online Dispute Resolution (ODR) in India.
The electronic communication for enabling more accessible and efficient dispute resolution is the Online Dispute Resolution (ODR). It is the cost-effective method for conducting the dispute resolution which also enables the parties to respond at their convenience. Due to the pandemic, Online Dispute Resolution has seen a significant rise through online filings, electronic court hearings etc. This has several pros and cons like on one hand it ensures efficient time management and can be accessed from any part of the world, on the other hand, it lacks human interaction and lack of literacy etc.
In BW Legal World Saturday Solutions weekly webinar an eminent panel of lawyers discussed about the Online Dispute Resolution (ODR) in India. The discussion began with how the ODR has become a reality today.
Kind of disputes suitable for Online Dispute Resolution
As virtual hearing protocols have developed, various kinds of disputes can be conducted through online dispute resolution.
To this, Mr. Ananya Kumar, Partner, J. Sagar Associates said, historically, we have noticed that there are lower value claims which can be resolved by mediation or negotiation or conciliation, and these have been considered as better suited for the ODR process. Summary proceedings similarly are obviously easier to resolve through ODR. So, today ODR can actually be used for all kinds of disputes or most kinds of disputes, subject to the administrators and the users of the ODR platform being properly trained, it cannot just be about the metros if you want this to be a success, it has to be a nationwide.
Challenges in ODR to conduct a successful Mediation
Due to the lack of face-to-face connection, the impulsive reactions that often take place during a mediation make it difficult to analyze these reactions through the online mode for dispute resolution.
In mediation, we talk about the actual human-to-human connection where emotions are involved, which you don't find in arbitration or litigation. But in mediation, you have to be empathetic, when you're talking of empathy and sympathy, there are emotions, human values, human touch. For that, online is not a successful medium to connect, especially from the mediator’s perspective says Mr. Sameer Shah, Senior Partner, Trust Legal.
Spreading Awareness for ODR adaptation and the training for it
In the rural places, there are a lot of government initiatives like the e- Seva Kendra and a lot of other initiatives too for spreading the awareness to adapt the ODR system in a lot of districts so that people can go to those places and use the infrastructure. Also, the teaching the training that needs to be in parallel with the technology that the people want to use. As a lot of the training is completely in theory, it might not help. So, I think on the inclusivity factor, the training needs to be more practical not theory-based, and there needs to be more digital literacy, right in the school levels remarked Ms. Nandini Khaitan, Partner, Khaitan & Co.
Protocols for conducting Cross-examination online
Due to the pandemic, the cross-border examinations were also held through the online mode for resolving the disputes. Few protocols have been set up so as to ensure the credibility of the witness statements and to make sure that the witness is not filtered or coached.
Furthermore, Mr. Abhileen Chaturvedi, Associate Partner, Economic Laws Practice mentioned a few protocols for conducting online cross-examination. They are:
there has to be a camera in front of the witness, there has to be a camera behind so that you constantly know what the witness is seeing and what is there on the witness's table.
the room has to be empty.
The witness will only be allowed a hardcopy of his testimony, as well as the pleadings of the case.
proper connectivity should be ensured.
and to ensure proper acoustics.
Resistance to ODR
Talking about this issue, Mr. Jamshed Mistry, Independent Counsel & Founder, Internationallegalalliance.com said people should not be resistant to ODR, all we need is a little bit of mental adjustment that would actually help. Supporting this by stating an example of Canada, he mentioned if you are caught at 2 am immediately the cop puts you in the car and the judge gives you what is called tele bail. This is what is needs to be adopted or adapted.
During the webinar, the important aspect of the green impact of the ODR was also discussed. Wherein, Lucy Greenwood from the UK and her huge proponent for the same was mentioned. In summary, ODR has huge benefits and should be adopted in India. And maybe, hybrid hearings are the way forward.
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