What are the opportunities and challenges of Online Dispute Resolution?
Embracing an idea means embracing its methods. Embracing ODR needs to be done rapidly but not at the cost of sacrificing the principles that underly our justice system. This includes aspects that safeguard justice such as fair trials. This therefore begs the question: Why?
Why do ODR methodologies need to be embraced?
Let’s take this from the perspective of India’s justice system, which itself faces several challenges. The key issue in question is how it stands as a system that is not delivering justice in time to give relief to people whose rights are violated. The numbers speak for this.
That’s what it takes on an average, at every stage of our judicial system — district judiciary, high courts and supreme court. Bottom line, the case life cycle basically is 15 years long! Simply put, we have a justice system that is overwhelmed and therefore severely crippled by the volume of cases.
But a deeper look reveals that it is not about having too many cases in India. It’s about an exclusion of people being able to access the judicial system in India. Over 3 crore cases remain pending and we are daunted by it!
It’s human nature to want a thorough closure to an issue faced. So when these cases are pending for 15 years or more, the resolution that comes later has no meaning to it. If there is a property dispute between two people, how can the case be not resolved for 35 years? More importantly, what kind of impact does it have on them?
The answer is we need to do something about getting our judicial system function better. And if you look forward, it presents a challenging situation considering the number of courts that are built and the number of cases that come in. The capacity to deal with these cases just doesn’t exist at this time. This calls for new methodologies to resolve disputes.
One of the silver linings of the COVID pandemic is the adoption of online hearings. Even so, two problems still manifest. The first is solving the capacity problem, and then there’s the problem of accessibility to the judicial system. The only solution is that the reach of dispute resolution mechanism has to go beyond what it is today.
An immediate solution to this would be to further empower key personnel involved in the system: judges, arbitrators, mediators, to be able to work more efficiently, interact with the stakeholders more efficiently without the problems of travel, availability, coordinating accessibility. Considering how it’s booming and at our fingertips, technology becomes an appropriate way. It is critical to adopt newer technologies to solve the problems of dispute. ODR is not a different mechanism from delivering justice. It might not solve all problems but it certainly is a significant step forward if we enable our judiciary and our legal system to adapt technology much quicker and make them digitally native to enable access to justice. In the process we’ll be better poised to resolve the challenges our judicial system is facing.
With the opportunities under technologies come the challenges. Knowing the challenges means probing the following:
- Access to justice.
- What the ODR design really is, and
- How it raises questions on equality, equity fairness, transparency.
- How is the scheduling of cases?
- How are documents circulated?
- How does the video conferencing work?
ODR is not just a technology integration, but where technology is used to solve disputes. This means, ODR is not just a virtual scheduling of cases, not video conferencing, not document circulation but it can include automated decision making with the use of artificial intelligence and machine learning. All of these raises questions on access, particularly about the very platform of ODR.