With the globalisation, interactions among the people of same country and even with the people of different countries are increasing. With these interaction disputes are also increasing day by day. We all know that judiciary is also overburdened due to these disputes. So, there is need of mechanism which can help judiciary to solve these disputes and the name to this mechanism can be given as ALTERNATIVE DISPUTE RESOLUTIONS (ADR). The emerging among the different types of alternative dispute resolution is ONLINE DISPUTE RESOLUTION(ODR). It is also named as internet dispute resolution, online ADR. Alternative dispute resolution means dispute resolution through different processes and techniques that act as a platform for disagreeing parties to an agreement sort of litigation outside the court. Similarly, Online dispute resolution means disputes resolution between the parties through the medium of technology or we can say Internet. Online dispute resolution encompasses a series of online means of communication, including email, Internet Relay Chat (IRC), instant messaging, web forum discussions, and similar text-based electronic communications. The origin of online dispute resolution can be traced back from 1990s around the world but in India its use has been seen since 2000 with the enactment of Information Technology Act, 2000.The main aim of ODR to enhance the integrity and accountability in internet community both at local as well as worldwide .By creating awareness of online dispute resolution among people the burden of judiciary can be reduced to maximum level.
ORIGIN OF ONLINE DISPUTE RESOLUTION: –
The concept of alternative dispute resolution is as old as civilization and it can be traced back to the old age system of village Panchayats prevalent in ancient India .The decision of panchas while sitting collectively as panchayat commanded great respect because of the popular belief that they were embodiment of voice of God and therefore had to be accepted and obeyed unquestionably .The mechanism of using alternative dispute resolution from offline to online shifted in 1990s .The internet began in 1969 as experimental network called APRANET and funded by the US Department of Defence to insure that its computer system would remain functional in the event of enemy attack .So, it surely means that origin of ODR can also be traced from United States .The influence of internet technology increased in 1990 and it spread to European countries also and it increased the interest of people to use ADR mechanism as online.
Online dispute resolution developed in three phases: –
First phase – Before 1995 the use of internet was restricted to niche areas and related to specific context as the internet had just started developing. That’s why online dispute resolution mechanism was rarely used.
Second phase – This phase resides between 1995-1998.This was the period when online dispute resolution mechanism started gaining popularity by coinciding with the internet boom.
Third phase – After 1998 to quench the demands of ever-expanding e-commerce market the idea of using autonomous institutional set up for dispute resolution came into existence. Consequently, academic non – profit organisations and commercial entities poured funds into Online dispute resolution regulation and formed brand names that we know today as associate leaders in this field like Cyber Settle and e- resolution.
In India, Online dispute resolution has not gained that much popularity as in online dispute resolution mechanism technology plays an important role and people of our country are not that much aware of technology techniques. With the legal framework of Civil Procedure Code,1908 (Sec.89) and enactment of Information technology Act in 2000 enhanced the mechanism of online dispute resolution in the country. The supreme court also played an important role in craving out space for online dispute resolution mechanism in the Indian legal landscape. Sec.89 of Civil Procedure Code,1908 deals with the settlement of disputes outside the courts. This section is basically to reduce the overburden of judicial system. The Supreme court recently affirmed the techno legal facets that the modern judicial system requires .
EXISTENCE OF ONLINE DISPUTE RESOLUTION IN INDIA: –
In India the concept of online dispute resolution is gaining popularity since 2000 with the enactment of Information technology act. But it is not familiar to people of country as the judicial courts are familiar to them because they are uncouncious of this mechanism of online dispute resolution. In India also many legal firms like Legal refree, TERI have been established which increases the utility of concept of online dispute resolution mechanism. The Supreme court in State of Maharashtra v. Praful.B. Desai held that video conferencing could be resorted for the purpose of taking evidence of witness which is a part of online dispute resolution. In Grid corporation of Orissa Ltd. v. AES corporation the Supreme court held that where an effective consultation can be achieved by resorting to electronic media and remote conferencing then it is not necessary that two parties should meet at a place and should negotiate with each other unless it is requirement of law. In Shakti Bhog Foods Ltd. v. Kola Shipping Ltd. the Supreme court upheld the existence of arbitral agreement can be inferred from a document signed by parties, or exchange of emails, letters , telegram or any other mode of tele communication. So we can say that time to time Supreme court is using online dispute resolution mechanism in its proceedings. Due to unawareness among the people this concept is lacking behind. Otherwise legal firms are using this mechanism and are resolving disputes related to e- commercial websites, all kinds of commercial disputes, land disputes , intellectual property disputes, consumer related goods services disputes. In the near future with the concept of globalisation the concept of online dispute resolution will be reach at new level.
TYPES OF ONLINE DISPUTE RESOLUTION: –
Online dispute resolution is basically similar to alternative dispute resolution. The difference is that in ODR the dispute in resolved online methods. That’s why the types of online dispute resolution are also similar to the types of alternative dispute resolution.
Different types of online dispute resolution are as follows: –
Negotiation is a process which is most commonly practised form of dispute resolution and probably one of most basic forms of interactions. Negotiation as a process is defined as any type of communication between two or more people with the aim of reaching an agreement. With the advent of internet, this form of interaction, particularly within the arena of dispute resolution and the legal profession has somewhat moved off the court corridors and polished offices of law firm on to the web, which resulted in the advancement of the idea of electronically based negotiations known as e–negotiations.
DARK SIDE OF E-NEGOTIATION: –
Every coin has two sides if e-negotiation is of beneficial value then it has dark side also. If we talk about effectiveness of e-negotiation via email then it is believed that it can lead to misunderstandings, sinister attributions, and ultimately negotiations fail. Moreover, it is also said by many researchers that e negotiation diminishes information sharing and also it diminishes trust between the parties which increases the effects of negative attribution. No research has been done by researchers to support the hypothesis that e-negotiation via email are or can be more effective than face to face negotiations.
E-Mediation is also a type of online dispute resolution which can be defined as a system -based mechanism as opposed to face to face interactions in which an impartial third party called “the mediator” facilitates the negotiation process between the two or more people. E-mediation is basically e – negotiation carried out with the help of third party. The average internet user is possibly well equipped for being in online mediation sessions via email, chat room, instant messaging, etc.
DARK SIDE OF E-MEDIATION: –
If we talk about the dark side of e- mediation then it is considered that written language does not always coveys the complete meaning of what an individual as mediator is trying to communicate with the disputed parties. And when parties misunderstand the concept that what mediator is trying to say then it reduces the effectiveness of virtual mediation.
E-Arbitration is another form of online dispute resolution which is just an electronic version of offline arbitration. It comprises of everything from online arbitration agreement to the online arbitration award. The interactions between parties and arbitrator can be carried through emails, messages, etc. This type of online dispute resolution is basically adopted by parties which are related to commercial disputes. The online awards enjoy much greater international recognition than judgements of national courts.
DARK SIDE OF E-ARBITRATION: –
The dark side of e-arbitration is that it is still questionable that whether the online arbitral award is binding upon the courts or not. So that’s why it is said that online arbitral award should satisfy the formal requirements of New York Convention (NYC). Sometimes people are not aware of these formal requirements which further act as obstacle related to binding of online arbitral award.
PROCESS OF ONLINE DISPUTE RESOLUTION: –
In order to commence with the online dispute resolution proceedings, it is desirable that a claimant provide a notice to the online dispute resolution administrator containing following information: –
a) Name and electronic address of the claimant and of claimant’s representative (if any).
b) Name and electronic address of the respondent and of his representative (if any).
c) Grounds on which the claim is made by the claimant.
d) Any solution proposed to resolve the dispute.
e) Claimant’s preferred language in which he wants to proceed the proceedings.
f) Signatures or other means of identification and authentication of claimant and claimant’s representative.
Online dispute resolution proceedings may deem to have commenced when, following claimant’s communication of a notice to the online dispute resolution administrator, the ODR administrator notifies the parties that notice is available at ODR platform.
It is desirable that respondent communicate its response to ODR administrator within a reasonable time of being notified of the claimant’s notice on the online dispute resolution platform and that should include following elements: –
a) Name and electronic address of respondent and his representative (if any).
b) Response to the grounds on which claim is made.
c) Any solution to resolve the dispute.
d)Signature or other means of identification and authentication of respondent and respondent’s representative.
e) Notice of any counter claiming containing the grounds on which the counterclaim is made.
Further it is said that both the notice and response be accompanied by all documents and other evidence relied by each party, or contain reference to them. In addition to the extent that a claimant is pursuing any other legal remedies, it is desirable that such information should also be provided in notice.
COMMUNICATION MODES IN ONLINE DISPUTE RESOLUTION: –
There are different methods of communication available in online dispute resolution over offline methods of alternative dispute resolution and it is also considered as an advantage of online over offline. These methods are as follows: –
1. E-mail: –
It is one of the most common and easiest way of communicating today. It permits the sender not only to send messages but attachments also. It is also used for filing of pleadings, documentary evidence, communication between the online dispute resolution and the disputes parties.
2.Discussion Boards: –
These boards are used when there are many persons wants to give their views on a certain issue. Discussion boards are a collection of messages from different people at the same place so that one can at a single glance can view the entire discussion related to the concerned issues.
3. Instant messaging: –
Messages are sent and received immediately through common messaging system like MSN Hotmail or Yahoo. This mode is suited for online dispute resolution systems like mediation where the mediator and both the disputed parties can have a joint discussion.
4. Audio conferencing: –
Audio conferencing is also popular mode of communication in online dispute resolution mechanism as audio talk enables the user to communicate in real time. It is useful in e – negotiation, e-mediation.
5. Video conferencing: –
This is one of the most effective mode of communication as in this mode both parties can see each other and can listen to each other and at the same time can respond to each other. This mode is particularly useful in case of oral argument.