ONLINE DISPUTE

RESOLUTION & ITS

RELEVANCE IN INDIA..

ODR A New Challenge To Indian

System

Research Scholar,
Priyanka Dayal

DEFINITION OF ODR

On-line Legal Dispute Resolution' itself denotes

that the person who is interested to get his
dispute resolved on-line without approaching
personally either an arbitrator or a mediator or
approaching the judicial forums. Legal light is
proud to introduce itself as one of the leading
forums for Online Dispute Resolution.

Online Dispute Resolution (ODR) was born from

the synergy between Alternative Dispute
Resolution (ADR) and Information and
Communications Technology (ICT), as a method
for resolving disputes that were arising online.
The early days of civilization, people and
business organizations have been looking for
alternatives to litigation The ways in which
parties choose to solve their conflicts has

changed over the centuries .

 Online dispute resolution (ODR) in India is in its infancy

stage and it is gaining prominence day by day. With the
enactment of Information Technology Act,2000 in India,
e-commerce and e-governance have been given a
formal and legal recognition in India.
Even the Code of Civil Procedure, 1908 has been
amended and section 89 has been introduced to
provide methods of alternative dispute resolution (ADR)
in India.
Due to increasing use of the Internet worldwide, the
number of disputes arising from Internet commerce is
on the rise. Numerous websites have been established
to help resolve these Internet disputes, as well as to
facilitate the resolution of disputes that occur offline.
This brief, examines and evaluates these websites.
However, Asian countries in general and
India in particular, ODR is not popular for dispute
resolution. Even otherwise there are very few
ODR service providers in India . Further, when it comes
to techno legal ODR services in Asia or India, there
seems to be very few institutions

 ODR is a wide field, which may be applied to a range of disputes;

from interpersonal disputes including consumer to consumer
disputes (C2C) or marital separation; to court disputes and
interstate conflicts.
Dispute resolution techniques range from methods where parties
have full control of the procedure, to methods where a third party
is in control of both the process and the outcome. These primary
methods of resolving disputes may be complemented with
Information and Communication Technology (ICT).
ODR is a different medium to resolve disputes, from beginning to
end, respecting due process principles. ODR processes are
increasing in efficiency providing their disputants with greater
advantages in terms of time saving and cost reductions.

 Courts of justice everywhere in the world are facing

growing problems when trying to meet the needs of the
market. ADR solutions to these problems, whether they
are initiated privately or publicly, have a common goal:
to solve disputes simply, quickly, efficiently and at a
cost proportional to the stakes.
Online or traditional ADR provides the parties to a
conflict with greater guarantees of confidentiality.

Forms of ADR

1) Negotiation

In its simplest form, negotiation involves an exchange of views and

proposals when a dispute opposes parties who wish to settle out of
court. The negotiation process is confidential and completely
voluntary; generally, the parties can withdraw at any point. Finding a
mutually acceptable solution to the dispute lies entirely in the hands of
the parties.
2) Mediation

Mediation can be defined as a process by which two people

agree to submit their dispute to a neutral third party, the
mediator, who uses various methods and techniques to try to
guide the parties toward an out-of-court settlement. Managing
the mediation process can also be collegial, in other words,
performed by a number of individuals.
3) Arbitration
Arbitration is a voluntary process in which disputing parties
engage the services of one or more neutral third parties. This
dispute resolution process is most closely analogous to litigation
because it is adjudicatory; the arbitrator renders a final decision
much the same way a judge enters a final judgment in a litigated
case..

Traditional Alternative Dispute

Resolution
Advantages of ADR
ADR generally considered a
more efficient process than
litigation because it is quicker
and less expensive.

Disadvantages of ADR
ADR is not always appropriate.
ADR is not adequate when
there is power balance
between the parties because it
would be much more difficult
to reach a win-win solution.

In ADR is no risk of information

leakage which can be damaging ADR is not necessarily
consistent when there is a
for a commercial reputation.
need of a precedent or of an
enforceable judicial decision
In ADR there is flexibility in
which can help resolve latter
outcomes. Arbitrators, for
cases.
instance, have greater flexibility
in decision-making than judges
since they are not bound, unlike ADR represent a move away
from a fixed and formal
the common law judges.
process

Rise of the Internet Main tool of ODR

The Internet began in 1969 as experimental network called ARPANET and

funded by the US Department of Defence to insure that its computer
system would remain functional in the event of an enemy attack The
widespread use of Internet technology in the late 1990s in the United
States and to some extent in Europe has heightened interest in ADR.

In 1989, the name World Wide Web was invented by the European
Center of nuclear research in Geneva. From 1995 to 1998, informal online
dispute resolution mechanisms were recognized as distinct from ADR and
since 1998 they have become an industry in the United States.

The first online experiments in Northern America were the Virtual

Magistrate (1995) was launched by cyber-law academics belonging to by
the National Center for Automated Information Research (NCAIR) and
Cyberspace Law Institute as well as the American Arbitration
Association .

The experiment ended in December 1999 and the project has evolved
into a commercial venture called e-Resolution.

Present Online Dispute

Resolution

Online negotiation....
Negotiation thrives on technological
changes through blind bidding which is
one of the most prevalent dispute
resolution services available online.
The common characteristic of these
processes is the parties submission of
monetary offers and demands which are
not disclosed to their negotiating
counterpart, but are compared by
computer in rounds.
If the offer and demand match, fall
within a defined range or overlap the
case is settled for the average of the
offer and demand, the matching amount,
or the demand in the event of an
overlap. If the claim is settled, the
participants are immediately notified
while online or by email.

 As we have seen, offline ADR involved a triangle: the two parties

and a neutral. ODR introduces a fourth party at the table, which
is the technology that works with the mediator or arbitrator.
In ODR, technology does not replace the mediator or arbitrator,
except in some cases, but can displace the third party in the
sense that new skills, knowledge and strategies may be needed by
the third party. An increasing number of organizations are
providing online dispute resolution services, especially in the
United States, either offering electronic negotiation services or
more traditional arbitration and mediation services.

Relevance of ADR & ODR In India

 The state of advancement of ADR or ODR,

we have to stop and ponder on how
relevant these kind of dispute resolutions
mechanisms are to the Indian context.
Considering the current state of the
justice system in India, it can be
concluded that alternatives to traditional
litigation is very urgent. As it has been
Justice delayed tantamount to
justice denied.

Number of Cases pending in Indian Courts

Indian Courts are packed with cases

pending from different Sectors, be it Civil
cases or Criminal cases or newly evolved
Cyber cases.
With the growing variety of the cases
arising every day, the number of pending
cases still seems to be not coming down.
Statistics of Pending Cases in India
InSupreme Court ofIndia, the matters
pending at the end of 31-12-2011 is
58,519, of which Civil Cases are 47,623
and Criminal Cases are 10,896.

InDistrictandSub-ordinateCourtsthenumberofcasespendingattheendof
30-09-2011isasbelow:

Sl. No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

High Courts

Civil Cases

Criminal Cases

Total

Allahabad

667,162

326,523

993,685

Andhra Pradesh

170,802

29,832

200,634

Bombay

310,835

45,872

356,707

Calcutta

301,408

41,990

343,398

Chhattisgarh

36,206

16,696

52,902

Delhi

48,267

13,113

61,380

Gauhati

57,425

26,586

84,011

Gujarat

43,159

9,250

52,409

Himachal Pradesh

40,446

5,982

46,428

Jammu & Kashmir

76,815

4,212

81,027

Jharkhand

34,162

28,099

62,261

Karnataka

151,851

15,036

166,887

Kerala

97,038

31,546

128,584

Madhya Pradesh

158,616

74,351

232,967

Madras

413,516

55,832

469,348

Orissa

262,288

28,557

290,845

Patna

71,663

46,998

118,661

Punjab & Haryana

188,960

49,796

238,756

Rajasthan

215,566

60,232

275,798

Sikkim

43

18

61

Uttarakhand

13,035

6,339

19,374

Total

3,359,263

916,860

4,276,123

InDistrictandSub-ordinateCourtsthenumberofcasespendingattheendof
30-09-2011isasbelow:
States and
Sl. No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35

Union Territories
Uttar Pradesh
Andhra Pradesh
Maharashtra
Goa
Diu and Daman

Civil Cases
1,331,300
451,274
971,652
17,634
906

Criminal Cases
4,421,225
487,868
2,530,071
11,701
921

Total
5,752,525
939,142
3,501,723
29,335
1,827

Dadra and Nagar Haveli

West Bengal

911
551,384

2,614
2,193,012

3,525
2,744,396

Andaman & Nicobar Island

Chhatisgarh
Delhi
Gujarat
Assam
Nagaland
Meghalya
Manipur
Tripura
Mizoram
Arunachal Pradesh
Himachal Pradesh
Jammu and Kashmir
Jharkhand
Karnataka
Kerala
Lakshadweep
Madhya Pradesh
Tamil Nadu
Puducherry
Orissa
Bihar
Punjab
Haryana
Chandigarh
Rajasthan
Sikkim
Uttarakhand

2,311
56,867
162,051
681,699
72,106
1,782
1,300
4,337
6,805
1,488
947
74,722
74,325
53,601
560,486
374,132
65
229,916
711,861
13,585
211,213
256,059
280,233
237,550
23,415
396,889
362
31,960

13,403
211,629
615,743
1,514,068
184,126
2652
1,930
5,717
41,082
2,544
5,501
111,138
129,039
244,045
588,614
656,930
103
945,814
470,028
12,889
924,932
1,332,212
292,230
350,782
41,081
1,067,537
767
110,651

15,714
268,496
777,794
2,195,767
256,232
4,434
3,230
10,054
47,887
4,032
6,448
185,860
203,364
297,646
1,149,100
1,031,062
168
1,175,730
1,181,889
26,474
1,136,145
1,588,271
572,463
588,332
64,496
1,464,426
1,129
142,611

Total

7,847,128

19,524,599

27,371,727

Applicable law to Cyberspace

To the extent that online negotiation/mediation takes place like
traditional ADR within the shadow of law, there are also
challenging issues about just what shadow to consider in a
particular situation. Still, this is not substantially different than
the world of face-to-face dispute resolution where the legal
context is often not clear.
As more and more commerce is done internationally and online,
this uncertainty as to the controlling law and principles
will make online negotiation/ mediation both more
difficult and easier. It will be more difficult in the sense
that the legal result is less predictable but, perhaps,
easier in the sense that, as soon as participants realize
that the law and courts are, essentially, irrelevant for
most consumer disputes, there will likely be more
motivated to resolve the matter online.

Example showing how the process of

ODR & ADR process used.

Security of the online proceedings

To secure the confidentiality of ODR processes, an important technical
issue remains concerning the security of the proceedings, particularly
those conducted online. The Internet is an inherently insecure medium.
Hackers can intercept email messages and the messages are temporarily
stored on servers they pass through. Parties may accidentally type an
incorrect email address and send compromising information to a
competitor.
Steps have been taken to protect the security of any messages or
documents transmitted over the Internet.
Software, in form of encryption software just guarantees that only one
person possessing the appropriate key can read a message. But it solves
the identity problem but not the authentication. Indeed, cyberspace is an
environment in which copying is easier but guaranteeing the authenticity
of messages is harder. Thus, while it is ordinarily possible to copy any
message that one sees on the screen, one also tends to be wary of
attributing the message to the person who appears to be sender.

Acts in law for the

security of ODR & ADR
Accordingtosubsection(2),acontract
relatingtosuchtransactionshallnot
deniedlegaleffect,validityor
enforceabilitysolelybecausean
electronicsignatureorelectronicrecord
wasusedinitsformation.Howeverinthe
caseoftransactionswithconsumers
whichrequirethewrittenform,the
consumersconsenttoelectronicrecords
laybenecessaryaccordingtoSection
101(c)oftheAct.
There are software solutions to the
authenticity problems. Digital
signatures, for example, are codes
that are embedded in a message
that can be employed to
authenticate a message. Secure
servers are available to help on this
problem

Conclusion..

TheuseofIThasanimpactonthelaw.It
can even weaken its effects since Internet
userscanavoiditsapplicationbychanging
theiridentities.But,itseemsthatIThasan
overall beneficial effect on the law since
multi-media will enhance legal service as
an information service and will render he
lawstillfurtheraccessible.
For an ODR process to be
successful, sellers and consumers
have to have an incentive to
collaborate.
Thus,
OnlineResolution.com
combines
online arbitration with face-to-face
meetings in large commercial matters
to allow discovery, cross-examination
of witnesses and pleadings.