By Adam Sharon, Family Mediation Center, Boston
Online Dispute Resolution can broadly be defined as the use of Alternative Dispute Resolution (ADR) techniques over the Internet. Small claims courts, with smaller dollar amounts and less complex issues are ideally situated to transition their operations online. I take this opportunity to discuss with you with regard to the implications of technology and impact of ODR on lawyers.
There are several benefits which make ODR especially attractive. These include cost savings, the speed of resolution, convenience, and individually tailored processes. In terms of money, ODR is most useful in cases where the attorneys’ fees would exceed the likely award amount. ODR is faster than a typical trial or even ADR because
technology can shorten the distances parties might otherwise need to travel. Further, ODR does not depend on clearing time on a mediator’s or a judge’s calendar. Using e-mail, discussion groups, and web sites, agreements can be written and amended when convenient. Further each dispute process can be tailored to fit the disputants’ individualized needs. One additional benefit is ODR’s potential for growth as a means of dispute resolution.
Despite signs that ODR is on the rise, there remain few financially viable ODR efforts in the commercial sector. ODR disputes are still mainly, although not exclusively, disputes involving business-to-consumer (“B2C”)e-commerce. More specifically, ODR is typically most effective in long-distance disputes involving technology issues. There are several reasons why ODR has not taken hold as a dispute resolution method for non-internet based disputes.
The easiest explanation for why ODR is not widely used is that the public at large and lawyers in particular may not be aware that such opportunities exist. It is quite strange that so far as the attorneys tend to be the gatekeepers of ADR processes used to be tend to be more resistant than the general public to embracing technological change.
A key question is whether the use of technical aids would deprive a party of fundamental procedural fairness. In procedural due process cases, courts first examine the private interest affected, then whether there is a risk of deprivation and the value of any additional or different procedural safeguards, and finally what the government’s interest would be in any substitute procedural requirements. With further developments in technology, videoconferencing and even holography are potential communications mechanisms which very closely mirror in-person communications. A general rule requiring technical equality would be inconsistent as there is no requirement that the parties be afforded equality of legal representation.
Providing an alternative system to resolve disputes that is online will boost not only the opportunity for cross border trade for companies within such countries, both as supplier and customer, but also improve and boost internal trade. A healthy internal trade can only help the development of cross border trade.
The point of ODR is somewhat lost if the aggrieved has to look for a lawyer to file a complaint, even for small value claims (small value claims have been the targeted area for most of the ODR websites around the world). In an ideal scenario, the use of lawyer is to be minimized; but can this really happen in India? I don’t believe it can, so far the right mechanisms set up is not yet there.
.It is quite natural to assess the apprehension on the part of the lawyers to oppose the popularity of Online Dispute Resolutions, as the procedure is most simplified and outcome is fast and fair where they have been tuned their profession as to the prolonged process of court litigation and the result in the form of declaration of judgment are quite remote. These online activities in respect of finding out resolutions have come as a shock and they are not ready to accept the state of affairs at any cost. I am asking them to what extent they can abstain from the ODR procedures or advising their clients against the online dispute resolution mechanism. The fear is quite unwanted and unwarranted. The rationale in support of online or automating the legal activities is simple so as to facilitate the public to access the justice at lower cost. Other advantage of ODR is evident in respect of the legal activities becoming more transparent to participants and faster to process.
Online attitude of the resolution process will benefit clients, who will have faster and less expensive access to legal support, and it will also benefit lawyers, who will be able to focus on the judgment-based and more nuanced services that clients cannot obtain from online process or platforms. In respect of ODR using video conferencing and all, lawyers are never denied any opportunities by the clients so far as it involves lot of legal arguments in both online Arbitration and Online Mediation. Moreover the people of India and subcontinent are always inclined to such practice where they have to be represented by a learned counsel to deliver their concerns and grievances. In respect of Software-based systems too, they provide critically important supplements to traditional legal services, but there will always be legal functions that can only be effectively performed by humans.