ONLINE DISPUTE RESOLUTION: OPPORTUNITIES AND

CHALLENGES
1
Author

2
Co-Author

ABSTRACT

Online Dispute Resolution (ODR) is the use of technology to 'resolve' conflicts. ODR uses
AI/ML-powered devices to help parties resolve disputes online. The benefits of ODR are cost
effective, easy, and efficient. All bar associations, and attorneys prefer arbitration/mediation over
judgment, giving litigants a reasonable opportunity to resolve their disputes to save time and
money, and to resolve more complex and difficult disputes. By facilitating ODR, State will
undoubtedly help make our justice system faster, more economical, and more convenient. So, the
sooner ODR is, the better it will be for the nation as a whole, especially those seeking justice.
Online Dispute Resolution (ODR) is a new type of dispute resolution that has emerged as a
viable alternative to traditional dispute resolution (ADR) processes in recent years. Although
ODR offers great potential for efficient and effective dispute resolution, its integration into
mainstream dispute resolution ecosystems presents several challenges. In this article, we review
the current state of the art of ODR in India, discuss the challenges that need to be addressed step
by step for its successful implementation, and provide a brief overview of the challenges faced
by ODR.

Keywords- Online Dispute Resolution, Arbitration, Technology

1
Shakir Radhanpurwala
2
Jappan Pandya

1
 SUMMARY

In this research article, we review the current state of the ODR in India, discuss the
recommendations that need to be addressed step by step for its successful implementation and
provide the overview of the challenges faced by the ODR in developing countries like India. In
this article we will discuss the overview of the benefits of ODR and digital courts and how they
can transform the legal paradigm as a whole over time. Moreover, we will analyze the position of
the ODR in developed countries like Brazil, Russia, China and South Africa. Being a developed
nation which kind of challenges they are facing while implementing of ODR and to resolve the
challenges and to upgrade the system, how the resources are utilizing which are available to
them, will also discuss the same.

2
 INTRODUCTION

Traditionally, dispute resolution has always been tied to one place, namely the courts. The
advent of ADR has helped change this perception to some extent. However, communication
during these dispute resolution procedures, both verbal and non-verbal, still requires the physical
presence of the parties. Due to the circumstances caused by the COVID-19 pandemic, these
traditional concepts of dispute resolution have been called into question. In these troubled times,
technology has become a herald of change and a neutralizer of circumstances. At the forefront of
this technological revolution is Online Dispute Resolution (ODR). ODR is, at its most basic, the
use of technology to 'resolve' conflicts. It is not only any type of technology integration (such as
electronically arranging a session), but its active usage to assist in the resolution of the dispute
(such as video conferencing for hearings or electronic document sharing for filing) 3. Though
evolved from ADR, the benefits of ODR go beyond e-ADR or ADR supported by technology.
ODR can make use of AI/ML-powered technological devices such as automated dispute
resolution, script-based solutions, and curated platforms that cater to certain types of conflicts.

The advantages of ODR are many as well. It is cost effective, easy, and efficient, enables for the
development of configurable procedures, and can reduce unconscious bias due to human
interactions. In terms of layers of justice, ODR can assist in conflict avoidance, containment, and
settlement. Its broad usage can improve the legal health of the community, enable improved
contract enforcement, and hence boost India's Ease of Doing Business ranking. The benefits of
ODR and Digital Courts (technology in the public court system) can transform the legal
paradigm as a whole over time.

Its immediate benefits can be gained during the current COVID-19 crisis, which is expected to
result in an increase in the number of cases before the courts. Consumer, tenancy, and workplace
conflicts, for example, are projected to increase in number. By utilizing the ability of the
business sector, which has already witnessed some innovation and capacity growth in recent
years, ODR can assist alleviate the pressure on the courts. In the long run, ODR may be the ideal

3
ODR - The Future of Dispute Resolution - Lets Get Legal https://letsgetlegal.in/odr-the-future-of-dispute-
resolution/

3
mechanism of resolution for all low-value, high-volume disputes, such as those involving e-
commerce transactions.

HISTORY AND EVOLUTION OF ODR (ONLINE DISPUTE

RESOLUTION)

The origins of ODR closely follow the history of digital interactions, particularly business
transactions. As the volume of interactions increased, so did the volume of disputes and the need
for native web proofreading. Although the Internet dates back to the late 1960s, its adoption for
the first 25 years of its existence was largely limited to academic and military fields. Therefore,
complaints could often be resolved offline since the parties were likely in the same real circles.
The courts' initial engagement with online disputes focused more on how to resolve online
disputes through traditional procedures. Litigation than when participating in solutions that use
technology. For example, in the mid-1990s, a major issue facing courts related to jurisdiction
over disputes arising from online interactions. Additionally, the early introduction of internet use
on college campuses led to litigation related to campus activities, touching on issues such as free
speech and harassment. While the issues discussed arose from online behavior, the dispute
resolution process itself was still very analog.

An important step in the development of ODR came through the eBay website. Since 1999, the
online marketplace giant has provided an internal system for transaction parties to resolve
disputes online. Today, this system helps parties resolve more than 60 million disputes each year
– a number that represents the total annual volume of cases filed in all US civil courts, Ability
demonstrates what ODR is capable of, both in terms of the number of cases handled and its
ability to empower parties to quickly resolve their own disputes.

Lately, courts have adopted and defended ODR, just as they once turned to ADR, to manage
their cases, improve outcomes, and better serve litigants. In recent years, numerous advocacy
groups, including the Conference of Chief Justices, the Joint Commission on Technology, the
National Center for State Courts, and the Pew Charitable Trusts, have called for bold and

4
substantial changes to the civil justice system to accommodate the ODR. Several administrative
offices of state courts have submitted plans calling for the establishment of ODRs. And some
states, like Michigan and Utah, have already implemented ODR programs in their operations. As
technology continues to advance, it stands to reason that ODR will continue to proliferate.

POSITION OF ODR IN BRICS COUNTRIES

 Online Dispute Resolution in Brazil (7%): -

The truism of dispute resolution is that the best time to resolve the dispute is as soon as possible.
The longer the discussion goes on, the more doubts arise and the harder it is to resolve. 
Addressing the disputes early in the lifecycle maximizes the chances of the issue being resolved
amicably between the parties.4 And it's better not to let conflicts start in the first place than to
settle them early. Lewis Kriesberg and Bruce W. Dayton said: 

It is easier to stop a conflict from escalating destructively if the struggle has not persisted for a
long time and not escalated greatly. This underlies the high interest among conflict resolution
practitioners in the potential of early warning and preventive diplomacy.5

Delays in resolving disputes can lead to escalation and exacerbation of disputes. Therefore, it is
very important to move quickly to resolve the case. The legal system is not optimized for speed,
disappointing to the parties to the dispute. 6 To avoid this frustration, ODR systems must be
ready-to-use and fast. In response to this dynamic, significant legislative reform was introduced
to improve the Brazilian legal system.7

4
Ricardo Vieira de Carvalho Fernandes, Colin Rule, Taynara Tiemi Ono,Gabriel Estevam Botelho Cardoso, The
Growth of ODR in Brazil: e-negotiation and e-mediation, The Expansion of Online Dispute Resolution in Brazil,
(Sept. 11, 2022, 2:32PM),
https://www.researchgate.net/publication/329933233_The_expansion_of_online_dispute_resolution_in_Brazil
5
Kriesberg, L. and W. Dayton, (2011). Constructive Conflicts: From Escalation to Resolution. (4), p. 198.
6
C. (2002). Introduction to Online Dispute Resolution for Business. [online] Mediate.com. Available at:
http://www.mediate.com/articles/rule2.cfm [Accessed 18 September 2022].
7
Brazilian Law, originated from the Continental-Germanic stream, promote the letter of the Law to an uppermost
source of Rights;

5
The new Civil Process Code (Lei 13.105/2015) and Law of Mediation (Lei 13,140/2015) 8, legal
bills which and amplified the usage of ADR, made explicit the applicability of using the
technology, including virtual environments, as a permissible form of mediation (30).

The 334th article, 7th paragraph of the NCPC says, “The Conciliatory audience or mediation
audience may be realized electronically in the terms of law.” (Translated from Portuguese) In a
similar way the 46th article of the Brazilian Law of Mediation Notes: “Mediation may be
realized by the internet or by any other means of communication that permits distance
transactions, since the parties agree.”9 (Translated from Portuguese).

These actions demonstrate a strong political will to modernize Brazil’s dispute resolution system,
particularly by incorporating new technologies. These steps have created a fertile environment
for ODR development in Brazil. Although there have been recent changes in the area of dispute
resolution in Brazil, several private initiatives have rapidly emerged to introduce ODR in Brazil.
The openness of the Brazilian legal system to ODR welcomes the ODR approaches and informs
the market that is accelerating its development.

Expanding internet access, also promotes the reach of ADR. Brazil is a very large country, 10 with
marked differences in income and infrastructure between regions of the country. However, the
use of communication technologies via the internet provides access to treatments for many
Brazilians living in the rural or remote areas.11 Online options for filing and communicating with
the parties at the counter can make justice possible if parties are physically separated by these
extreme distances. In addition, the procedural flexibility of ODR, combined with the flexibility

8
Conflict spires is the name of the social effect- so described by experts in the matter- in which the parties reactions
escalate and interpose- thus generating so an intense and damaged conflict as the original issue. Therefore, the
means of a conflict are as much important as the conflict itself (Manual de Mediação Judicial. (2015). 5th ed.
[ebook] Brasilia: Conselho Nacional de Justiça, p.48)
9
 The expansion of online dispute resolution in Brazil
https://www.researchgate.net/publication/329933233_The_expansion_of_online_dispute_resolution_in_Brazil/
10
Despite its limitations due to legal and security issues, ADR offers a greater range of conflict solutions
mechanisms than the traditional path, from the perspective of the procedure (Mediation, Arbitration, Conciliation) to
the perspective of the third party to assist the parties.
11
The distance between Manaus, Brazilian Northern economic pole, and Porto Alegre, the Southern capital is
3,133km – that is approximately the distance between Barcelona and Moscow plus 100km; or between Washington
D.C. and Phoenix, Arizona.

6
of online communications, provides the conditions that allows disputes to be resolved more
quickly and, therefore, more efficiently, because Haste avoids the aforementioned escalation of
complications and frustrations.

As a result, we are now seeing in Brazil the recognition of ODR-Related benefits, already
described by experts in other countries who have implemented the ODR mechanisms previously
described. This development of ODR trials in public and private sectors with the aim of realizing
these improvements in efficiency, speed and cost.12

According to an ODR study carried out by the group “Droit recherche, innovation et
technologize” from the Faculty of Law of University of Brasilia 13, the existing online platforms
in brazil that practice e-negotiation and e-mediation, mainly focus on resolved consumer-related
conflicts.

 Position of ODR in Russia: -

 This change appears to be useful and very important for the development of Russia's Arbitration
Agency. Practice has shown that mediation is not a common method for resolving disputes and
disputes. Parties resorting to arbitration are seeking assurances that the agreement will be
enforced.14 Implementation of a mediation agreement is characterized by the voluntary nature of
the parties to resolve the dispute peacefully. 15 The performance bond is an arbitration contract
notarized by a notary public. Prior to these changes, the arbitration agreement had to clarify that
non-performance could be challenged in court as civil contract. 16 This means that court
12
Colin Rule Discusses the Intersection between ADR and Online Dispute Resolution (ODR). (2012). Jams Dispute
Resolution Alert, pp. 4-5
13
Direito Tec is a research and development group from the Law Faculty of the Universidade of Brasilia based in
Brasilia (DF). The group focused on the study of innovation in Law, specifically regarding new technologies
(LegalTech) in order to provide Brazilian students with that knowledge and stimulate the development of ODR and
even more.
14
Izmailov, Robert Rinatovich; Sungatullina, Lilia Azatovna; Mikhaylov, Andrey Valervich, The Discuusion,
Mediation in Russia: Law Enforcement Issues, Tendencies and Prospects,(Sept. 12 , 2022, 10:56 PM),
https://www.redalyc.org/journal/279/27965040022/27965040022.pdf
15
"Current Trends in International Arbitration in Russia: Protectionism or Preventionism?" Transnational Dispute
Management (TDM), GAREEV, RR (2020).
16
Mediation: Empowerment in Conflict Management. Waveland Press. ISAACSON, K, RICCI, H &
LITTLEJOHN, SW (2020).

7
proceedings must be initiated, go through the judicial review process necessary to identify
discrepancies with evidence, await a court decision, and obtain a writ of execution for
execution.17

In this case the relevance of mediation as an alternative means of resolving the dispute has been
lost. Under the amendment, individuals or entities no longer have to think about lengthy court
proceedings when they have a notarized arbitration agreement as to the form, timing, and method
of dispute resolution.18 Such an agreement has the power of an administrative document.
Notarized mediation agreements with the power of enforcement documents should change
parties' perceptions of the mediation process and increase its popularity as a truly effective
method of dispute resolution.

In Russia, parties to a dispute still prefer to receive documents stamped by a court or notary.

The legal validity of an arbitration agreement also provides important guarantees and advantages
for its use.

By looking at the following points we can have an idea of development of ODR in Russia: -19

1) Russian law on alternative dispute resolution has undergone important changes. The
focus of legislators is to make the mediation process more competitive, increase the
prevalence of this process, and increase the number of use cases of this process. Not all
the changes introduced are entirely controversial, but the general ongoing trends can
certainly be seen and real results will become apparent over time.

2) Arbitration, by its legal nature, is a highly effective means of restoring normal dialogue
and communication between parties to a dispute.

3) The effective resolution of disputes arising from public legal transactions by mediation
presupposes the possibility of entering into settlement agreements by state authorities.

17
“New rules of mediation”, SHESTAKOVA, M (2020).
18
Russia as peacebuilder? Russia's coercive mediation strategy, LEWIS, D (2020).
19
Place of Mediation in the Monitoring of the Educational Process Conflict Factors in the Conditions of Modern
Risks, INKEVICH, AG & ARTEMOV, GP (2020).

8
 4) A Congressional decision regarding the possibility that retired judges may serve as
professional mediators without imposing additional requirements appears to be
controversial.

5) The possibility of enforcing the arbitration agreement as an enforcement order is an

important guarantee of its enforceability and a competitive advantage of the arbitration
process.

 Position of ODR in China: -

 In China, ODR started relatively late.20 In 2000, China's first ODR platform called Domain
Name Dispute Resolution Center was established. 21 After that, ODR developed slowly in China
as ODR did not get enough attention from academic and practical fields. However, the recently
presented strategy "Internet" encourages the development of ODR.22 Since 2016, the Supreme
People's Court has successively published several official documents, such as Opinions on
Deepening the Reform of Various Dispute Resolution Mechanisms and Notices on the
Implementation of Online Mediation Platform Programs in Some Regions. doing. In practice,
according to the requirements of the Supreme People's Court, in the Local People's Court and the
Government conduct the investigation of the ODR.23 So far, China's OS platform can be divided
into four major groups:

1) professional OS platform: - This type of platform is the ODR-specific. For example,

CIETAC's Domain Name Dispute Resolution Center and Guangzhou Arbitration
Commission's online arbitration platform are institutions focused on ODR.

20
Zhengmin Lu, Xinyu Zhu, The Development of ODR in China,Study on the Online Dispute Resolution System in
China ,(Sept. 15 , 2022, 8:33 PM), https://www.atlantis-press.com/article/25875030.pdf
21
Ding Ying. Online court: a new way to handle the small electronic commerce dispute[J]. Journal of Jinan
University (philosophy and social science edition), 2015, (10):41-59.
22
DebiMiller-Moore. ODR at the AAA: online dispute resolution in practice[J]. University of Toledo Law Review,
2006, (2):87-91.
23
Mauro Cappelletti. The party's right of essential procedural guarantee and future civil action[M]. Beijing: Law
Express, 2000:5.

9
 2) OS platform controlled by the People's Court. Currently, these platforms can be divided
into two main types. The first is an online deployment platform and the second is an
online testing platform.24 In collaboration with Sina, a number of district courts have
launched his online mediation platform called "e- Mediation." The system is set up in
Chengdu Intermediate People's Court, Hefei Intermediate People's Court and Shanghai
Hai Court. Also in 2015, the Supreme People's Court decided to launch an online exam
pilot program in Jilin and Zhejiang provinces.

3) The ODR platform is controlled by law enforcement agencies. As is generally accepted,

China's judicial administration is responsible for maintaining social harmony and
stability.25 For these tasks, the Judiciary has set up an OS platform with her arbitration
committees, media and other bodies. For example, Chongqing Judiciary Bureau, together
with Chongqing Broadcasting Group, launched an online mediation platform called
"Bayu Peacemaker".

4) ODR platform installed by EC site. Such Online Dispute Resolution Platform is mainly
used to resolve online shopping disputes between Online Consumers and Online
Merchants. For example, Taobao, Jingdong, and Gome have their own ODR mechanism.
The chart below shows the current state of several OS platforms according to relevant
newspaper and magazine statistics.26

The need to establish the ODR system in China

1. The increasing number of online disputes
2. The change of the dispute resolution concept
3. The popularity of internet and connected devices
4. The improvement of information technology

 Position of ODR in South Africa: -

24
Long Fei. The development status and future prospects of ODR in China[J]. Law Application, 2016, (10):2-7.
25
Liu Jiaqi. The study on the change of legal limitation under the big data era[J]. Hubei Social Science, 2015,
(7):140-146.
26
Gao Wei. The study on the online arbitration[N]. Journal of Shanghai Jiaotong University (philosophy and social
science edition), 2014, (6):18-25.

10
With this renewed global interest in online dispute resolution, Africa's position in online dispute
resolution and its future growth potential should be considered. 27 It would be ideal to follow suit
and keep abreast of international developments to facilitate cross-border trade across Africa and
boost e-commerce. However, the continent is still in the early stages of development due to the
limitations and challenges faced by based on the level of existing information and
communication technology (ICT), the authors of classify African countries into his three
groups.28 divided into the first group is South Africa, Egypt, Morocco, Tunisia and Nigeria. The
second group, is his ICT-developed countries and includes Ghana, Algeria and Cameroon.

The final group is ICT potential advanced countries such as Malawi, Botswana and much of
Central Africa. For his two latter groups, the challenge to the development of e-commerce and
online dispute resolution is significant. They lack the necessary infrastructure and the technology
available is often rudimentary. In addition, many developing countries face basic problems such
as lack of basic services such as food, water and electricity. In these cases, promoting e-
commerce is clearly not a priority and the immediate challenges must be addressed first. In
countries where infrastructure is in place and e-commerce continues to grow, e-commerce
regulation is often poor or non-existent as technology evolves faster than the law.

However, the challenge is minimal in ICT ready countries, which appear to be beginning to
recognize the potential for online dispute resolution as an effective means of resolving low-value
B2C claims.

 The Situation in South Africa: -

27
Robin Cupido,Current position of ODR in Africa,Online Dispute Resolution: An African Perspective,(Sept. 18 ,
2022, 3;45 PM), http://ase-scoop.org/papers/IWLP-2016/3.Cupido_IWLP.pdf
28
MSA Wahab “Online Dispute Resolution for Africa” at www.mediate.com, accessed 2 September 2015.

11
In 2003 report on e-commerce and development, the United Nations Conference on Trade and
Development (UNCTAD) said: He identified e-commerce as a prerequisite for the growth of e-
commerce in general and ODR in particular.

This “appropriate legal framework” is lacking in most African countries, but the enactment of
comprehensive legislation regulating both e-commerce and consumer protection in South Africa
has made South Africa more vulnerable to the development of online disputes. A resolution that
is claimed to be an ideal candidate. As mentioned earlier, e-commerce sites in South Africa have
attracted many consumers29 from the rest of Africa, and will likely continue to do so as e-
commerce continues to expand. Additionally, the only online dispute resolution initiative
currently operating in Africa is based in South Africa.30 So far, these initiatives have focused
solely on online dispute resolution in two areas: domain name disputes and consumer law.31

The ZADRR (ZA Domain Name Dispute Resolution Regulations) was created to resolve domain
name disputes by allowing a complainant to submit a dispute to her dispute resolution service
provider. Defendant is then given an opportunity to defend her allegations. The Provider will
appoint an adjudicator to decide whether to transfer the domain. The entire process was
conducted via online procedures, and has successfully resolved many of these disputes. Of
particular relevance to this discussion is the establishment of an online ombudsman, created as
an online tool for enforcing consumer protection law. This site is currently the only where a
consumer can resolve her dispute online, using online forums to connect parties to arbitrators.
While these programs represent a good first step, it is still unclear what legal rules apply to
online dispute resolution under South African domestic law.32 Clear Guidelines Governing
Online Dispute Resolution. This area of law is still developing and it will be interesting to see
where his ODR growth in South Africa goes.

 Position of ODR and framework in India: -

29
Consumer Protection Act 68 of 2008
30
LQ Hang “Online Dispute Resolution Systems: The Future of Cyberspace Law” 41 Santa Clara L. Rev. 837
(2001)
31
E Katsh and J Rifkin Online Dispute Resolution: resolving conflicts in Cyberspace (2001)
32
G Kaufmann-Kohler “Online Dispute Resolution and its Significance for International Commercial Arbitration” in
Global Reflections on International Law, Commerce and Dispute Resolution Liber Amicorum in honour of Robert
Briner (2005)

12
As highlighted in the section above, the ODR ecosystem has experienced exponential growth
globally over the last two decades. State and private sector. Some of the early developments
were very valuable during the COVID-19 lockdown. At this time, the work of courts and dispute
resolution bodies was greatly reduced.33

 For example, in April 2020 the Supreme Court was able to list 357 of its cases for hearing,
which is less than his number of cases listed by the Supreme Court in April 2019 (14381 cases),
is only 2.48%. And while the ADR Center has adopted ICT tools quickly to some extent, more
needs to be done to keep the system from going down. The next section analyzes the current
situation of his ODR in India and the current situation regarding the integration of technology
into the dispute resolution system. It analyzes the government's willingness to include ODR, its
legislative position on ODR, his acceptance of ODR by the judiciary, and private sector
innovation. The timeline below outlines some key initiatives that have paved the way for the
growth of ODR in India.

 Present status in India: -

There are even cases where courts have established the need for ODR mechanisms in courts. For
example, Justice Ramana states that ODR can be used to successfully resolve consumer, family,
business, and trade disputes34. In fact, the process began with relying on electronic filing of
digital paper books instead of paper books.35 In light of the COVID-19 pandemic, even Justice
Bobde, the current chief justice, said he needed to take steps to virtualize the courts to prevent
the Supreme Court from closing. pointing out. 36 While recognizing the many benefits of such a
dispute resolution system, arbitration agreements should be binding. He also emphasized the

33
The NITI Aayog Expert Committee on ODR, Present Status in India, Designing the Future of Dispute Resolution
THE ODR POLICY PLAN FOR INDIA, https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-
2021.pdf accessed on 23 September, 2022
34
Justice N.V. Ramana, ‘Delay reduction at different tiers of the court system, pre-trial settlement (use of
conciliation procedures for dispute resolution) – The experience of the Supreme Courts of Shanghai Cooperation
Organization (SCO) countries’ accessed 20 May 2020, See also ‘Justice Ramana Tells SCO to Harness Technology
To Resolve Disputes’ (India Legal, 21 June 2019)
<https://www.indialegallive.com/top-news-of-theday/news/justice-ramana-tells-sco-to-harness-technology-to-
resolve-disputes-67451> accessed 20 Sept. 2022.
35
Deepika Kinhal, Lead & Senior Resident Fellow, Introducing and Mainstreaming in India, The Future Dispute
Resoltuion in India, https://vidhilegalpolicy.in/wp-content/uploads/2020/07/200727_The-future-of-dispute-
resolution-in-India_Final-Version.pdf, accessed on 25 September, 2022
36
PTI, ‘CJI rules out total shutdown of Supreme Court amid coronavirus threat’ (Livemint, 16 May 2020) accessed
22 Sept 2022

13
need for international arbitration and his Artificial Intelligence 37 (“AI”) as a major alternative to
the current status quo. All of this conversation seems to come within his larger scheme of having
more technological intervention in resolving disputes across courts, like the introduction of
‘SUVAS’ (Supreme Court Vidhik Anuvaad Software)-an artificial intelligence 38 powered
translation engine that translates judgments from English to Indian languages.

In fact, the discourse on a formal ODR system in India has already been initiated with the
Nilekani panel in 2019 recommending the setting up of online dispute resolution systems to
handle complaints arising out of digital payments. 39 The committee suggested that such ODR
platform should have two levels – one automated and one human, with a provision for appeal. 40
Therefore, the stage seems to be set, partly driven by the COVID-19 induced urgency, for ODR
to take off as one of the main modes of dispute resolution in India. Quite recently, NITI Aayog,
in association with Agami and Omidyar Network India, organized a meeting on ‘Catalyzing
Online Dispute Resolution in India’41 where it brought together key stakeholders to work
collaboratively to ensure efforts are taken to scale online dispute resolution in India. During the
meeting, it was recognised that ODR holds great potential for India particularly for small and
medium value disputes. It can enhance access to justice and ease of doing business, as efficient
dispute resolution will be key in reviving the economy from the challenges posed by the
COVID-19.42

 Judicial Planning: -

The Supreme Court has played a critical role in laying the groundwork for the implementation of
ODR in the country. It has upheld the validity of video-conferencing as a method of taking

37
PTI, ‘CJI Bobde bats for law containing compulsory ‘pre-litigation mediation’ (The Week, 08 February 2020)
accessed 21 Sept. 2022
38
PTI, ‘CJI focus on speedy end to litigation’ (Telegraph India, 08 December 2019) accessed 21 Sept. 2022
39
Nandan Nilekani and others, ‘Report of the High-Level Committee on Deepening of Digital Payments’ (2019) 97
accessed 21 Sept. 2022
40
Nandan Nilekani and others, ‘Report of the High-Level Committee on Deepening of Digital Payments’ (2019) 97
accessed 21 Sept. 2022
41
NITI Ayog and others, ‘Catalyzing Online Dispute Resolution in India’ (NITI Ayog, 12 June 2020) accessed 10
July 2020
42
Ibid.

14
evidence and witness testimony in court. Praful Desai v. State of Maharashtra43, calling virtual
reality "the genuine reality." A similar pattern was seen. Grid Corporation of Orissa Ltd. v. AES
Corporation44, the court ruled that where consultation was possible, it was not required for
individuals to sit with each other because this could be accomplished through electronic media
and distant conferencing. Similarly, in M/S Meters And Instruments Pvt. Ltd. vs. Kanchan Mehta,
it was45 observed that there was a need to consider categories of cases that can be partly or
entirely concluded "online" without the physical presence of the parties and recommended the
resolution of simple cases such as traffic challans and cheque bouncing.

Furthermore, in Shakti Bhog v Kola Shipping46 and Trimex International v Vedanta Aluminium
Ltd.47 the court recognized the legality of online arbitration. In each of these cases, the court
ruled that an online arbitration agreement is legitimate as long as it complies with Sections 4 and
5 of the Information Technology Act ("IT Act"), 2008 48, as well as Section 65B of the Indian
Evidence Act, 1872, and the Arbitration and Conciliation Act, 1996. The simultaneous
integration of technology in conflict resolution and dependence on ADR processes indicates that
India is preparing to rationally shift to ODR.

 Legislative Strategy

As previously stated, the present legislative framework may be leveraged to put ODR into
operation. There are provisions in current regulations that allow for the accommodation of online
procedures, including the sharing of virtual papers and virtual hearings. As previously stated,
Sections 65-A and 65-B of the Indian Evidence Act of 1872 49 provide the recognition of
electronic evidence. Similarly, Sections 4, 5, 10-A, and 11-15 of the IT Act recognize digital
signatures in order to guarantee legitimacy to online contracts. Adopting the UNCITRAL Model
43
State of Maharashtra v Praful Desai (2003) 4 SCC 601
44
Grid Corporation of Orissa Ltd. v AES Corporation (2002) 7 SCC 736
45
M/s Meters and Instrument Private Limited v Kanchan Mehta 2017(4) RCR (Criminal) 476
46
Shakti Bhog v Kola Shipping (2009) 2 SCC 134
47
Trimex International v Vedanta Aluminum Ltd 2010(1) SCALE574
48
Information Technology (Amendment) Act, 2008
49
Indian Evidence Act, 1872

15
Law on Electronic Commerce in 1996 and the Model Law on Electronic Signatures in 2001
made this feasible. This paradigm can serve as the foundation for ensuring the short-term
enforceability of ODR. However, special recognition for ODR in all types of conflict resolution -
private and court-annexed ADR - would be preferable in the long term.

THE FUTURE OF ODR IN INDIA

According to Richard Susskind, access to justice has four layers: legal health promotion, conflict
avoidance, dispute containment, and authoritative dispute settlement. He points out that only the
final two of them have been addressed by the traditional judicial system. This statement also
applies to India. The country's judiciary has consistently used technology to resolve conflicts and
virtually keep the judicial system alive. However, the moment has come to shift the emphasis
from conflict resolution to dispute prevention, containment, and general legal health. Investing in
ODR through the use of more advanced second-generation technologies can assist India in
moving toward a more futuristic judicial system. As with the progress of ODR thus far, it is
expected that these newer technologies, which not only apply legal principles but may also
expand to better economic principles for resolving civil disputes, will come from the commercial
sector. As a result, it will be critical for the court and the administration to collaborate on these
capabilities and embrace them for wider public use. As difficult as it may be to believe at the
moment, the future of conflict resolution depends with technology, including artificial
intelligence (AI). ODR can help with this by developing ways for more unbiased examination of
legal connections for early measures. It is clear that India already possesses the fundamental
ingredients required to implement a complete framework for technology in conflict resolution
procedures, namely institutional desire, competence, and, to a considerable extent, technological
capacity. Moving forward, a modular plan for further innovation and transformation is necessary
to be implemented in a way that addresses both current and long-term demands.

 The challenges of ODR in India: -

Although ODR offers great potential for efficient and effective dispute resolution, its integration
into mainstream dispute resolution ecosystems presents several challenges. The successful

16
implementation of ODR depends on several factors, including ensuring that governments can
enforce arbitration awards, agreements, etc. Enables widespread adoption of ODR. Based on an
extensive literature review and consultations with key Indian stakeholders, the Commission
identified the following challenges that need to be addressed step by step for the successful
implementation of ODR.50

 Cultural Difficulties: -

These are the issues that primarily affect developing countries in the continents of Asia, Africa,
and Latin America. People are hesitant to engage in online activities, hence their contribution to
this sector is limited. Their ideas spread culturally and flow uncontrollably. The government
must comprehend and execute appropriate solutions for this issue.

 Infrastructure Challenges in ICT: -

One of the major issues with ODR is that many nations, including India, lack adequate internet
infrastructure, which is the initial and primary prerequisite of ODR. Though the policy has been
to focus on internet facilities, and it has been discussed again and again about considering the
internet as a "basic right," in order for the ODR procedure to take place, there has to be a well-
developed ODR platform, legal professionals, and software to have a perfect online dispute
resolution mechanism.

 Regulatory Challenges: -

There has been attempts to establish a uniform regional legal structure for consumer protection,
including e-consumers.

50
Dev Sareen, Challenges to ODR, Online Dispute Resolution- Application and Challenges,
https://www.ijlmh.com/wpcontent/uploads/2019/03/Online-Dispute-Resolution-Application-and-Challenges.pdf ,
accessed on 4th October, 2022.

17
  Business Models: -

The primary problems under this area are the business models and business procedures.
Especially, the performance and scalability of the ODR must be measured.

 Efficiency: -

The court system is complicated, demanding, and inaccessible. To establish the principles of
ADR and ODR, an efficient mechanism is essential. A platform and software are necessary to
make the dispute resolution system successful and efficient.

 There is huge economic divide between developed and developing nations: -

Because of globalization, emerging countries have the similar traits of unequally distributed
wealth. As a result, developed countries have a bigger opportunity for ODR than developing and
undeveloped countries, leading in a disparity. For developing and underprivileged countries, a
comprehensive ODR system has evolved into a science fiction fantasy.

RECOMMENDATIONS FOR IMPROVING THE ODR MECHANISM IN

INDIA

For the improvement of the ODR mechanism in India specially, the following measures can be
taken into consideration: -

 Increase Physical Access to Digital Infrastructure: Physical access to technology and

infrastructure can only be increased via the joint efforts of two major stakeholders: the
government and the courts.

18
  Improve Digital Literacy: - Physical access to technology and infrastructure is simply
one part of digital infrastructure access. Users of such technologies need be digitally
educated in order to realize their full potential. The Pradhan Mantri Gramin Digital
Saksharta Abhiyaan (PMGDISHA) would go a long way toward ensuring access to
51

justice in even the most rural and marginalized areas of society.

 Innovative Platforms: - Increasing Access ODR platforms should be mobile-friendly in

order to be widely used. Given the limitations of digital literacy, it is also important to
use voice prompts technology. LIMBS is a web-based solution for more effective and
transparent case monitoring involving the Indian federal government. It is a project of the
Ministry of Law and Justice's Department of Legal Affairs (DoLA).

 Building Capacity: - There is a need to implement training Programmes, enhance

paralegal services within communities, and implement universal training standards based
on practical skills through demonstrations and simulations for all ODR practitioners
across the country. The Government Programme Study Webs of Active-Learning for
Young Aspiring Minds (SWAYAM)52 may be used for ODR courses, and this platform
can give ODR training.

 Appropriate Regulation: - It is critical that India's regulatory regime protects end-user

rights while ensuring that over-regulation does not inhibit innovation. Amendments to
current legislation to include ODR to create required pre-litigation online mediation for
specific kinds of cases, for example. A panel of ministers was recently formed to assess
the development of an ODR-enabled GST Appellate Tribunal.

51
 Pradhan Mantri Gramin Digital Saksharta Abhiyan (PMGDISHA), 2017
52
Study Webs of Active-Learning for Young Aspiring Minds (SWAYAM), 2016

19
  Government Participation: - The government and public sector undertakings (PSUs)
are among India's largest litigants. Adopting ODR to resolve inter- and intra-
governmental conflicts would be a critical step toward increasing trust in the process.
This will solve the issue of trust in ODR processes and outcomes automatically.

CONCLUSION

The need for ODR is felt quickly and we need to be ready for it. A solid technical legal basis
must be established in advance. It is also mandated by Article 21 of the Constitution of India.
Having woken up in 1999 and started enforcing seconds. Better late than never. All bar
associations, and attorneys prefer arbitration/mediation over judgment, giving litigants a
reasonable opportunity to resolve their disputes to save time and money, and to resolve more
complex and difficult disputes. Leave the case and more criminal cases. Go through the
arbitration process. By facilitating ODR, State will undoubtedly help make our justice system
faster, more economical, and more convenient. So, the sooner ODR is, the better it will be for the
nation as a whole, especially those seeking justice.

20
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24