LAW, ORDER & ADR AMID CRISIS: DISPUTE RESOLUTION IN POST COVID-19 ERA
Aashna Duggal, 4th year, VIPS, IP University, New Delhi
Having been witnessing the current COVID crisis so closely, it would not be wrong to say that the uncertainty and instability that it brings along is something to be worried about. With the world economy crashing, commerce, and businesses struggling to sustain, even the courts are facing challenges to deal with these tough times. The prevailing situation of the pandemic has brought forth a new set of disputes to be solved. This has, in turn, added to the existing number of pending cases. Being aware of the fact that the way to justice is both long and expensive in a country like India, it would be unreasonable to expect that a case would be disposed of within a few years. The burden on the courts would now be aggravated due to the unexpected shutdown of courts. Therefore, this has urged the legal system to come up with measures and regain its position to face the situation head-on because the virus is here to stay. Talking particularly of dispute resolution, this article aims to paint a picture of how the post COVID-19 era would look like.
ADR to the rescue
Dispute resolution has been an important aspect of the whole legal mechanism. It was introduced in India when the judiciary was facing trouble in handling the ever-rising number of cases. Enacting provisions regarding the alternate dispute resolution mechanism proved to be a massive move on the part of legislators.
The act aimed to provide for methods/alternatives to the long and tedious process of litigation. It was believed that ADR could cut down expenses by a considerable amount that are incurred in the whole process of litigation and also save the precious time of both the parties, their counsels as well as the courts. Besides, it could provide for a confidential method to resolve legal disputes and shun court visits.
Techniques like mediation, negotiation, arbitration, conciliation, and settlements through Lok Adalat form part of the ADR apparatus as prescribed by the Code of Civil Procedure under Section 89(1)(2).
While the courts are looking for ways to equip themselves in the times of this impending crisis, ADR mechanisms would now prove to be even more important. With a wave of new and fresh cases approaching the courts, ADR would also have to go through necessary changes. The said mechanism has helped the courts since the time it came into play and it would be right to say that it still would continue to contribute to the legal system in these challenging times.
But the question here is - what changes do the alternatives have to go through to meet the changing needs of dispute resolution.
ADR and ODR
It is rightly said that desperate times call for desperate measures. As a result of the COVID outbreak, the legal dimension is sure to undergo procedural change. While visiting courts/tribunals and attending arbitral hearings physically could be unworkable due to their closure, one can still attend the same through online platforms. Therefore, this is exactly where technological advancement would prove to be beneficial. Virtual hearings have already found their place. They demonstrate the perfect way in which parties are heard and justice is delivered even without establishing any physical contact. E-filing capability is another strong step towards embracing the change in technology.
Moreover, now that there is no going to the court people would resort to adopting ADR techniques to work out their conflicts at the ease of their homes. There is already a spike in cases that involve non-compliance with contractual obligations by parties. More so, disputes might also rise as regards force majeure, the frustration of contracts, etc. It is because of the economic slowdown that the world is going through as a result of the pandemic.
Negotiation is a technique that can prove to be effective in resolving such rising contractual disputes via online dispute resolution.
Other than that, pre-litigation mediation can prove fruitful in areas of disputes that include matters relating to family and labor. Mediation has always been the foremost technique to be used to resolve disputes as it is non-adjudicative. And mediation in way of ODR could help the parties reach a settlement in a few weeks in this time of crisis. It will also save them from going through expensive arrangements.
Arbitration too has been regarded as the most efficient alternative especially where huge companies are involved.
To give these mainstream alternatives a makeover and to establish them as effective methods to resolve conflicts backed by technology, a separate definition had to be formed for the purpose of distinction. Therefore, the ODR- Online Dispute Resolution can be called the online equivalent of ADR. It is enforcing ADR through an online mechanism. It is devised to ease the strain that courts suffer from. ODR is where ADR and technology meet and their synchronization form an effective system for dispute resolution.
ODR in itself is a technique that can be customized and tailored as per the wish of the parties. A few methods that help ODR function are:
Synchronous ODR wherein communication is established between the parties via video conferencing apps.
Asynchronous form of ODR where communication is established via email or any other apps that allow communication.
The third and the most effective of all is online mediation.ODR platforms generally favor this technique to resolve conflicts. It starts with establishing contact between parties through email and conducting virtual meetings thereafter.
Another emerging technique is electronic arbitration but it has not gained much popularity as of now. However, Arbitration tribunals have been conferred upon with the powers to conduct proceedings with the help of video conferencing, telephonic communication, or any other means that deem fit.
People involved in disputes especially in these emotionally and economically challenging times would prefer out a quick bail-out of such cases and it should be judiciary's top priority to let the people resolve their respective fights over comfortable methods i.e. ODR techniques and make peace.
Benefits that ODR would provide the legal system with are endless. From overcoming jurisdictional issues to eliminating geographical barriers and ease administrative tasks, this new dispute resolution method has it all covered. Apart from that, it will also improve productivity and make for a quick and economically effective solution.
However, it is a fact that every change also brings with it new challenges. Practically speaking, there would be resistance initially as to adopting these techniques. Most of the population is not fluent in how the technology works and there is a lack of proper basic infrastructure in the country. Apart from these fundamental problems, issues relating to the basic procedure that the courts have to follow namely- evaluating witnesses and cross-examining them becomes all the more unclear. Therefore, admissibility and authenticity would be questioned.
The idea is to infuse technology and adopt newer ways to make use of it. In India, ODR is a new concept but the prevailing circumstances backed by a firm policy framework will surely let ODR bloom and prosper. Companies have started adopting it as a result of the pandemic as technology is the only way to go about it. Moreover, ODR as a technique cannot be questioned and soon would be able to get at par with the mainstream dispute resolution mechanism.
It is believed that the ongoing situation will be changing the work environment for good. The crisis has made the courts adopt technology at a never-seen-before pace. Perhaps, it is the only way the judicial system could have been saved from collapsing. Naturally, this new world would be difficult to function in but the only way to normalize it is to settle in and let it take its shape. It would be a turning point for the functioning of online courts and tribunals. Hearings that could be heard via video conferencing and applications that could be dealt with via online communication methods would become a fairly used standard. Online mediation would see noteworthy growth.
The post COVID era would bring in major changes as regards the judicial system and investment in technology is the only way to assess the readiness of the judiciary. Conceivably this investment would not be a mere waste of time and effort once the crisis has been dealt with as it would become a norm eventually. Therefore, the ADR mechanism in the form of ODR holds a bright future and would make for the swiftest resolution technique.
Lastly, it is important to note how critical the role of courts and judiciary in our country is. Speedy disposal of cases is the key to bring the whole nation back to where it was before the pandemic hit us. And this disposal shall only be possible if we approve of the new resolution scheme. The post COVID era will definitely observe a massive transformation in terms of the country's dispute resolution system for better. Whatever the future may hold, justice shall find its way through!