The LexGaze Weekly - DECIPHER

ODR & COVID-19: Making way for E-Mediation in India

Arijit Sanyal

Issue 13 | September 13, 2020

This pandemic might have had cascading effects on all walks of life and might also have immobilized the economy, but legal disputes have continued to advance towards the point of no return. Rising insolvency, contractual, insurance, family, etc. disputes, coupled with limited access to all forms of dispute resolution have complicated things around us. While we stand at a juncture, far from normalcy, we cannot leave the existing, let alone the rapidly rising disputes, as a fait accompli, which brings us to the concept of Online Dispute Resolution (ODR). Defined as, “a mechanism for resolving disputes facilitated through the use of electronic communication and other ICT” (UNCITRAL), one particular model of ODR might be a fitting solution to a “social- distancing inclusive” dispute resolution system.

E-Mediation: A globally effective model of ODR?

One of the most popular models globally, e-mediation, has transformed dispute resolution in the EU, Canada, the UK etc. Conducted largely by state-regulated private bodies, e-mediation has played a significant role in settling civil disputes, even when tribunals have been under prolonged lockdown. Motivated by the higher rate of success the province of British Columbia (Canada) has set up an online tribunal exercising jurisdiction over claims of low and medium values. Following suit, the sellers in Europe have been mandated to provide for a robust e-mediation/negotiation platform for customers in case of disputes arising out of purchases made by them. The situation is slightly different in the US where private bodies such as –Cybersettle and Mediation Room-- have been offering e-mediation services for a wide range of disputes. The bodies have attracted a large number of parties and, consequentially, have reduced the burden on courts during the pandemic. Though countries across Europe and America have done a commendable job, South-Korea has been leading the race in terms of procedural clarity. Restricted to consumer disputes, the E-commerce Mediation committee, considering the needs and grievances of the consumer, allows parties to choose from a diverse pool of mediators. Moreover, the committee mandates that every dispute referred to it must be resolved within two months, which includes a 15-day appeal period until which the decision shall not be enforced.

The Right Solution for India?

Mediation has been one of the least used models of dispute resolution, as compared to other forms of ADR in India [IDRS: 2019]. The multi-stakeholder meeting, chaired by the CEO of NITI Aayog, has been fruitful (to say the least), as the proposal to make ODR mandatory for COVID-related disputes was supported unanimously. If implemented, it would significantly reduce the burden on the judiciary and would also allow the parties to reach a win-win situation at a considerably lower cost. E-mediation has already been thriving in subtle forms across India such as PayPal and ICICI bank offering multitier ODR to its customers regarding transfers and bill payments [JALDI: 2020]. Similarly, NLSIU, Bengaluru has played a pivotal role in resolving consumer disputes by deploying a hybrid model through its Online Consumer Mediation Centre, a project sponsored by the Ministry of Consumer Affairs. Similar plans have recently been rolled out by the Income Tax Department and the Ministry of Law and Justice with the idea to embrace ODR to a larger extent. However, as highlighted by Chandrachud J [Supra], “Above all there needs to be a fundamental change in mindset” which sums up the problem vis-à-vis ODR in India. Therefore, while moving forward with the plan to integrate E-Mediation into the system of justice, the government might face additional challenges owing to the adverse changes in employment rate, accountability, and also regarding privacy issues.

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