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Dispute Resolution : An Analysis...


INTRODUCTION

In India, litigation is the standard method of dispute resolution that has been chosen by the common people since ages. Although this is the most popular dispute resolution mechanism, it is time-consuming, nonconfidential and costs the parties almost a fortune. Apart from these, there are a number of other disadvantages of choosing litigation as a dispute resolution, due to which disputants have started resorting to alternative dispute resolution techniques.[1] There are five main alternative dispute resolution mechanisms i.e. Arbitration, Mediation, Conciliation, Negotiation and Lok Adalat. Although these dispute resolution techniques seem to have evolved over the previous three decades, their presence and use in ancient Indian history cannot be denied. Developments in technology and cyberspace have brought a new dimension to these alternative dispute resolution techniques. Online Dispute Resolution (ODR) is an online dispute resolution mechanism where disputes are resolved through virtual platforms instead of the physical presence of the parties. This concept of online dispute resolution as a dispute resolution mechanism was introduced in the 1990s.[2] It can take place in two formats, i.e. resolution of online disputes taking place in the cyber domain and disputes that arise in the physical world, but the mode of resolution is chosen as a virtual mode. These disputes are resolved by the parties through various online platforms that provide online dispute resolution services. Among all dispute resolution mechanisms, Arbitration and Mediation are the most popular and at the same time advantageous techniques for resolving disputes between parties. These techniques are also advantageous when resolving disputes on a virtual platform. Electronic arbitration and electronic mediation are more convenient due to the intervention of a neutral third party, which helps to better resolve the dispute.

E-ARBITRATION

Arbitration is one of the globally recognized alternative dispute resolution mechanisms known for its finality of orders and awards. The revolution in technology and the Internet has not only rapidly increased the importance of arbitration through conventional methods, but also through online platforms. Unlike traditional arbitration, the procedure of electronic arbitration depends on the availability, use and knowledge of technology in addition to the financial side and the availability of the arbitrator. It has been introduced as a dynamic dispute resolution technique over the years as it changes as technology changes. Unlike conventional arbitration proceedings, earbitration offers greater flexibility to the parties. Although it is a long process, it is much more convenient for the parties. The first step to using E-Arbitration is choosing the platform on which the Arbitration will take place. After deciding on a platform, the parties, through their legal representatives, register on individual platforms and file lawsuits.[3] The applications are then followed by the digital signing of the documents by the parties. Registration fees and arbitration administrative fees are calculated as per the IDRC Arbitration Rules, 2018. This process is facilitated by both types of dispute resolution techniques listed above. Next, the allocation of Arbitrators is carried out, followed by the distribution of notices to the parties concerned. Once the notices are sent to the parties, the virtual platform will complete the process of booking time slots based on availability. These bookings can be for both online and offline sessions. This is followed by the payment of slot reservation or registration fees. After the date and time of the arbitration sessions have been scheduled, the process begins with the presence of the parties, their representatives and the arbitrators, along with one representative of the platform, who takes responsibility for conducting the entire session. If it is an online arbitration session, then the entire process takes place through a video conference where the affected parties and members involved in the matter are given specific mandates to negotiate. The proceedings lead to the signing of the contract after the parties have discussed the issues and resolved them with the help of an arbitrator. In a virtual session, the signing of the contract is done through digital signatures.[4]

E-MEDIATION

Mediation is considered the most preferred method among other dispute resolution mechanisms. This is because it is a client-driven process and a third party or neutral party acts only to assist in mediation unlike arbitration where the decision of the arbitrator is final and binding on the parties. However, the advent of technology has brought certain changes to the Emediation process. Most electronic service providers that provide a platform for parties to conduct the mediation process have replaced electronic mediators with technology. In such situations, the system takes input from parties about their problems and provides solutions based on that input. This procedure can take place either through e-mails or via video conference. Although artificial intelligence has replaced the human need in various cases, there are cases where a human can step in and resolve disputes effectively. While electronic service providers provide electronic intermediation services without third party intervention, failures have occurred in such situations. The mediation process is well established due to the intervention of a third party who understands the gravity of the situation and allows both parties to be aware of their needs and well-being. Technological progress negates the human factor in the process, which increases the risk of its failure[9]. Some e-service providers offer the E-mediation process as a substitute after the failure of the negotiation process between the parties. [5] The entire procedure for e-mediation is similar to earbitration, where the parties decide on a platform for the process, based on which registration, booking, payment and then proceedings follow. Since the process is non-binding, the parties may or may not agree to the terms.

CONVENTIONAL MECHANISM OR ODR: A COMPARISON Conventional alternative dispute resolution techniques and online dispute resolution techniques have their own advantages and disadvantages. However, online dispute resolution is still considered a better way to resolve disputes compared to the conventional mode. The reasons are as follows: Online dispute resolution is a more flexible and informal process compared to conventional ADR methods, which is governed by strict rules and procedures. ODR is a more time-saving mechanism compared to physical ADR mechanisms.

ODR is comparatively more cost effective. It is a better way to resolve disputes when the relationship between the parties has been destroyed to a greater extent. It helps the proceedings run smoothly when these parties are distant. For example, in marital disputes. [6] It proves to be more advantageous in cases where the parties could not appear for the physical proceedings, as they can participate in the proceedings from any part of the world. Despite the hurdle of technological illiteracy and connectivity issues during the procedure, it is still considered a better dispute resolution mechanism compared to conventional methods.

Aviral Srivastava

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