ONLINE DISPUTE RESOLUTION & ITS RELEVANCE IN INDIA..

ONLINE DISPUTE RESOLUTION & ITS RELEVANCE IN INDIA..

1ODR A New Challenge To Indian System

Research Scholar,Priyanka Dayal

DEFINITION OF ODROn-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 ADRADR generally considered a more efficient process than litigation because it is quicker and less expensive.

In ADR is no risk of information leakage which can be damaging for a commercial reputation.

In ADR there is flexibility in outcomes. Arbitrators, for instance, have greater flexibility in decision-making than judges since they are not bound, unlike the common law judges. Disadvantages of ADRADR 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.

ADR is not necessarily consistent when there is a need of a precedent or of an enforceable judicial decision which can help resolve latter cases.

ADR represent a move away from a fixed and formal processRise of the Internet Main tool of ODRThe 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 IndiaInSupreme 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.

InDistrict and Sub-ordinate Courtsthe number of cases pending at the end of30-09-2011 is as below:

Sl. No.High CourtsCivil CasesCriminal CasesTotal1Allahabad667,162326,523993,6852Andhra Pradesh170,80229,832200,6343Bombay310,83545,872356,7074Calcutta301,40841,990343,3985Chhattisgarh36,20616,69652,9026Delhi48,26713,11361,3807Gauhati57,42526,58684,0118Gujarat43,1599,25052,4099Himachal Pradesh40,4465,98246,42810Jammu & Kashmir76,8154,21281,02711Jharkhand34,16228,09962,26112Karnataka151,85115,036166,88713Kerala97,03831,546128,58414Madhya Pradesh158,61674,351232,96715Madras413,51655,832469,34816Orissa262,28828,557290,84517Patna71,66346,998118,66118Punjab & Haryana188,96049,796238,75619Rajasthan215,56660,232275,79820Sikkim43186121Uttarakhand13,0356,33919,374Total3,359,263916,8604,276,123

InDistrict and Sub-ordinate Courtsthe number of cases pending at the end of30-09-2011 is as below:

Sl. No.States andUnion TerritoriesCivil CasesCriminal CasesTotal1Uttar Pradesh1,331,3004,421,2255,752,5252Andhra Pradesh451,274487,868939,1423Maharashtra971,6522,530,0713,501,7234Goa17,63411,70129,3355Diu and Daman9069211,8276Dadra and Nagar Haveli9112,6143,5257West Bengal551,3842,193,0122,744,3968Andaman & Nicobar Island2,31113,40315,7149Chhatisgarh56,867211,629268,49610Delhi162,051615,743777,79411Gujarat681,6991,514,0682,195,76712Assam72,106184,126256,23213Nagaland1,78226524,43414Meghalya1,3001,9303,23015Manipur4,3375,71710,05416Tripura6,80541,08247,88717Mizoram1,4882,5444,03218Arunachal Pradesh9475,5016,44819Himachal Pradesh74,722111,138185,86020Jammu and Kashmir74,325129,039203,36421Jharkhand53,601244,045297,64622Karnataka560,486588,6141,149,10023Kerala374,132656,9301,031,06224Lakshadweep6510316825Madhya Pradesh229,916945,8141,175,73026Tamil Nadu711,861470,0281,181,88927Puducherry13,58512,88926,47428Orissa211,213924,9321,136,14529Bihar256,0591,332,2121,588,27130Punjab280,233292,230572,46331Haryana237,550350,782588,33232Chandigarh23,41541,08164,49633Rajasthan396,8891,067,5371,464,42634Sikkim3627671,12935Uttarakhand31,960110,651142,611Total7,847,12819,524,59927,371,727Applicable 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 proceedingsTo 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 & ADRAccording to subsection (2), a contract relating to such transaction shall not denied legal effect, validity or enforceability solely because an electronic signature or electronic record was used in its formation. However in the case of transactions with consumers which require the written form, the consumers consent to electronic records lay be necessary according to Section 101 (c) of the Act .

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..

The use of IT has an impact on the law. It can even weaken its effects since Internet users can avoid its application by changing their identities. But, it seems that IT has an overall beneficial effect on the law since multi-media will enhance legal service as an information service and will render he law still further accessible.

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.