Author: Vidhi Agrawal, IV year of B.A.,LL.B from Faculty of Law, Jagran Lakecity University.
Our civilization has been altered to the point where we can't picture modern living without it. Technology has an impact on how we engage with one another, especially in terms of dispute resolution: it either creates new types of issues as a result of the additional capabilities it provides, or it might assist in dispute settlement. In this post, we'll look at how technology can help in dispute resolution and how it can be used to improve speed and efficiency.
Machine learning and artificial intelligence are allowing for online dispute resolution (ODR), which is becoming less artificial and more intelligent. Because of the rapid pace of technological progress, more people are integrating the internet into their daily lives, and as a result, individuals are turning to ODR when they file a complaint or dispute on e-commerce or e-payment platforms, whether deliberately or unknowingly. Every year, these ODR platforms manage hundreds of millions of disputes. The number of ODR tools available continues to grow. They can now manage more sophisticated conflicts, rather than merely low-value e-commerce issues like they used to. ODR has the distinct benefit of not being bound by any particular jurisdiction, and it can be a very successful cross-border dispute resolution tool. However, it is widely acknowledged that ODR is not appropriate for all types of conflicts.
Not only are e-disagreements settled online in ODR, but traditional disputes like commercial or social disputes can also be resolved using information technology. Automated software may be used in ODR to resolve conflicts in a transparent and equitable manner. Scanners, computers, web cameras, cell phones, fax machines, and other communication devices are among the tools that can be used. The essence of ODR, according to Katsh and Rifkin, is formed by three fundamental factors: convenience, trust, and competence. In my opinion, many other aspects, particularly in poor nations, are equally important to an ODR process, such as price, accessibility and infrastructure, flexibility, and transparency, to name a few.
The ODR method comprises the filing of e-documents in which the parties may utilise encryption or electronic signatures to protect the documents' integrity and transaction authentication. In most cases, the parties use the help of an ODR service provider to appoint an impartial panel of judges or panels to resolve disputes via online means. Parties desire a transparent method with a simple and definitive resolution process. Institutions such as the World Intellectual Property Organization (WIPO), the Singapore International Arbitration Centre (SIAC), and the International Criminal Court (ICC) have a long history of reputation for successfully resolving internet conflicts through mediation or other forms of alternative dispute resolution. The complainant seeks compensation or other remedies by submitting a complaint, and the respondent, if it agrees to participate in the process, submits detailed responses. Oral hearings through teleconference or video conference facilities may or may not be part of the procedure. Occasionally, automatic software can mediate a dispute without the need for a third party. The dispute between the parties is resolved if the claimant's offer falls within an acceptable range. In most cases, an ODR service provider acts as an administrator and infrastructure supplier rather than a judge who decides disputes. ODR is notable for resolving disputes in a timely and cost-effective manner while also reducing acrimony between parties.
Negotiation, Conciliation, Mediation, Arbitration, and hybrid mechanisms such as Last Offer Arbitration, Medola, Mini trial, Med Arb, and Neutral Evaluation can all be used as part of ODR. The ODR process might be adjudicatory or non-adjudicatory. Arbitration is an example of an adjudicatory process in which the arbitrator's decision is binding on both parties. On the contrary, the primary goal of a non-adjudicatory process is to reach an agreement between the parties without ruling on the merits of the case. In mediation, a neutral third party makes recommendations for resolving problems between parties and participates actively in the process. In Med Arb, mediation is employed first, and if that fails, arbitration is used. Mini trial is a non-binding procedure in which the parties file summaries of their cases in order to analyse their merits and negotiate a settlement with a neutral advisor. In fast-track arbitration, a deadline is set for the parties to resolve their differences through arbitration. In a Neutral Listener Agreement, the parties debate their offers in secret with a neutral third person, who then suggests the best offer for settlement after hearing both sides. In Rent a Judge, the parties submit their disagreement to a neutral judge for resolution.
In case management, Technology can also play a crucial part in case management. Alternative dispute resolution (ADR) approaches have been adopted by courts, and court-ordered mediation has increased. Several jurisdictions have established mediation divisions within their court systems, which are chaired by dedicated judges whose primary role is to act as a mediator and assist parties in reaching an amicable resolution of their disputes, or at the very least significantly narrowing issues, due to the importance of such a mechanism for the prompt delivery of justice. Another area where technology will have a significant impact is in the presentation of evidence. Lawyers have already come to rely on online databases and legaltech apps. Legaltech is a great example of how machine learning and stare decisis theory may be used to settle conflicts.
In light of COVID-19, which has called for a radical rethinking of every part of our lives, now is an excellent time to rethink dispute resolution and unleash the full potential of technological solutions. During the lockdown, for example, courts and tribunals were unable to convene physical sessions to consider cases. The essential lesson we learnt is that hearing parties and counsel through video conference is a viable option that will not jeopardise the quality of justice delivered. On the contrary, it will save time for all parties, particularly those who are located outside of the United States and are unable to travel due to constraints. Lawyers, in particular, have a reputation for being conservative and averse to change and innovation. However, there is a need for a reassessment of how our courts work and how technology may help in meaningful ways. Computers or robots will not be able to deliver judgements in the courts, but technology can assist the judge in making a conclusion, just as it does in all other aspects of life. Technology-assisted dispute resolution has become the new standard.
Using the New York Convention as a starting point for determining whether electronic arbitral awards are admissible within the current legal framework, it should be noted that the convention does not expressly provide for a signed and written arbitral award. Furthermore, Article 8 of the UNCITRAL Model Law on Electronic Commerce specifically provides that an electronic data message might satisfy the requirement to present information in its original form. "Award shall be made in writing and signed by arbitrator," according to Article 31 (1) of the UNCITRAL Model Law. In India, section 31 of the Arbitration and Conciliation Act, 1996, which is based on Model Law, mandates the same. However, the old concept of writing and signing has been supplanted by the Information and Technology Act of 2000, which recognised electronic records and digital signatures as lawful.
In the United States, online financial claim settlement is already extensively developed. This isn't a type of ODR that's particularly associated with e-disputes. In the strict sense, it is, however, the most evolved type of online conflict settlement. Cybersettle was the first website to offer online financial claim settlement, followed by Clicknsettle shortly after. Cybersettle is a company that uses an expert system to settle insurance claims online. Clicknsettle allows parties involved in any type of financial dispute to achieve an agreement with the help of an expert system. The systems are designed in such a way that neither party is aware of the amount the other is requesting or offering. Double-blind bids and needs are matched by an expert system. The claims representative can make three offers using the Cybersettle method, and the plaintiff can respond with three demands. Clicknsettle allows parties to submit as many offers or demands as they desire over the course of a 60-day period. Both sites promise that the settlement offers and demands are kept entirely private. The claim will be automatically settled for the median amount if an offer and a demand are within an agreed-upon formula. For matching offerings and demands, both sites appear to employ the same algorithm. Parties will be able to negotiate without prejudice if no settlement is achieved because they will not know the amount the other party has offered or requested during the settlement procedure. These websites were created to lessen the length of a negotiation or lawsuit process as well as the costs incurred by the parties involved. Newer sites, such as Ussettle and Settlesmart, are founded on the same concept and employ similar processes.
The Dutch e-mediation project and the British e-mediator initiative, both started shortly after, are two examples of European e-mediation initiatives.
In 1999, the University of Massachusetts' Centre for Information Technology and Dispute Resolution performed research to see how effective an online mediator could be in resolving e-disputes originating from online auction transactions on the eBay website.
eBay is the world's largest online auction platform. During a two-week period, 225 customers and sellers used a link on the eBay customer service page to file a complaint. On the eBay site, the link was not publicised and was two levels down! One of the reasons the researchers chose online mediation over online arbitration was that online arbitration projects have had a hard time getting cases since potential respondents do not want an arbitrator to make decisions for them. This also explains why some online mediation programmes have been reasonably effective, but no online arbitration initiatives have been launched.
The governments of the United States, Australia, New Zealand, Singapore, Canada, and the United Kingdom have all provided special funds to start ODR initiatives. The electronic commerce platform in the Netherlands is a cooperative project of the business community and the Dutch Ministry of Economic Affairs, which drafted the electronic commerce Code of Conduct.
To resolve e commerce disputes, Singapore Subordinate Courts, Ministry of Law, Singapore Mediation Centre and Singapore International Arbitration Centre, Trade Development Board and Economic Development Board developed e ADR, which is jointly run and controlled by them. In India, e courts aim to encourage ODR and deal with litigation and court-based ODR using online resources, and the CBI (Central Bureau of Investigation) is working to build e courts.
When the technological, commercial, and legal difficulties have been effectively resolved and appropriate solutions for an ideal ODR regime have been presented, ODR will obtain maximal acceptance with public-private partnerships. The ODR procedure must be cost-effective, accessible, convenient, flexible, transparent, infrastructure-ready, secure, efficient, and enforced.
To efficiently address such issues, the ODR method necessitates widespread knowledge, manpower training in technology, project finance, and codify of ODR law and practise (similar to lex mercatoria or internationally recognised standards in arbitration).