Online dispute resolution in India (ODR in India) and Asian countries has yet to pick a pace. There is a lack of awareness about the concept of ODR in general and its use in particular.At Perry4Law and Perry4Law Techno Legal Base (PTLB) we have already provided technology related dispute resolution policy of India and ODR policy of India that Indian government may consider and use while enacting laws regarding ODR and use of technology in dispute resolution.
Perry4Law and PTLB now wish to provide their suggestions regarding the standards of practice that may act as guidelines for practice across the spectrum of ODR in India and Asian countries.
We believe that ODR may be used for a wide variety of purposes and at various stages of dispute resolution. It may be used even before a dispute arises and may be helpful in removing the doubts and difference that may ultimately become a dispute.
We believe that the standards of practice must be not only “technology neutral” but also free from technical and legal complexities. “Party autonomy” must play the decisive role in the use and adoption of ODR in India and Asian countries. If parties prefer to use ODR for dispute resolution, technical and legal requirements must not come as hurdles.
Further, having multiple laws at international level is not conducive for the use of ODR. There is an urgent need to formulate “international standards” regarding use of ODR. Further, “international harmonisation” of ODR principles is also required.
The ODR system must be easily accessible to the parties to ODR mechanism. Effective use of e-governance and language translation service could help in this regard. ODR must also be easy to use and use friendly. Public awareness in this regard is a must and the same must be accompanied with a good techno legal ODR training of the stakeholders. At Perry4law and PTLB we not only spread awareness about use of ODR but are also providing research, education and training regarding ADR and ODR. We are also engaged in ODR and e-courts skills development in India.
Access to justice becomes a major hurdle while using technological solutions like ODR and e-courts. The marginalised segment of population must be made aware of how to use technology for ODR and e-courts purposes.
ODR mechanisms must be transparent and fair regarding the identities and affiliations of the ODR providers, the identities and affiliations of the interveners and managers of the ODR systems, and the security efforts undertaken by the ODR providers to safeguard user data and identity.
Jurisdictional issues and place of dispute resolution must be clearly specified and conveyed to the parties to the dispute. The ODR clauses in legal and non legal agreements must clearly specify the usage of ODR and a particular ODR service provider or panelist. It is generally claimed that the place where the ODR process occurs is where the ODR platform is.
ODR service providers must disclose their physical location and minimum contact details. Of course, without a “professional relationship” being established, other contact details should not be disclosed to prevent “spam communications”.
ODR panelists and service providers must have good techno legal skills and expertise to engage in ODR dispute resolution. A person or institution possessing both technical and legal knowledge (techno legal skills) is the ideal institution or individual for ODR purposes. ODR platforms must also ensure that in cases of need, expertise of professionals from various fields is available on request.
Bona fide works and efforts of ODR service providers and ODR panelists should be legally and equitably protected under all the jurisdictions of the world. A clause in this regard must be incorporated in the ADR and ODR laws of various countries as well as in the agreement to hire ODR services of an individual or institution dealing in ODR service providing.
ODR service providers must ensure privacy, confidentiality and data security of various details, data, information, etc as required by national, regional and international law.
These are just basic level suggestions and more detailed suggestion and policies would be provided by Perry4Law and PTLB in due course of time. We are also working in the direction of providing an ODR legal framework for India that can be adopted by other Asian countries, with or without modifications.
