Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business
NITI Aayog in association with Agami and Omidyar Network India at an event co-hosted by Confederation of Indian Industry (CII) convened a conversation on August 8, 2020 to discuss Online Dispute Resolution(ODR) to enhance the Ease of Doing Business in India.
ODR is the resolution of disputes, particularly small- and medium-value cases, using digital technology and techniques such as negotiation, mediation, and arbitration. While courts are becoming digitized through the efforts of the judiciary, more effective, scalable, and collaborative mechanisms of containment and resolution are urgently needed. ODR can help resolve disputes efficiently and affordably.
Mr. Amitabh Kant, CEO, NITI Aayog gave the welcome address, followed by Hon’ble Justice B.N. Srikrishna who gave the keynote address after which business leaders, heads of law firms and leading general counsels explored the opportunities and specifics of what lies ahead. The common theme was an agreement for businesses and industries to work collaboratively, to adopt and institutionalize ODR, and to ensure efforts are taken to scale it in India. Key takeaways from the meeting are set out below.
Welcome Note 2
Amitabh Kant, CEO, NITI Aayog 2
Emergence of ODR in India 3
J. B. N. Srikrishna, Former Judge, Supreme Court of India 3
ODR in India, Opportunities & Challenges 3
Pramod Rao, Group General Counsel, ICICI Bank 3
Cyril Shroff, Managing Partner, Cyril Amarchand Mangaldas 4
Krishnava Dutt, Managing Partner, Argus Partners 5
Amit Kapur, Joint Managing Partner, J Sagar Associates 6
Ajay Bahl, Co-Founder and Managing Partner, AZB & Partners 7
Poornima Sampath, Vice President – Group Legal, Tata Sons 8
ODR Startup Innovation Showcase 8
Sachin Malhan, Co-Founder, Agami 8
Understanding Industry Applications for ODR 8
Amit Bhasin, General Manager - Legal, Unilever 9
Shilpa Kumar, Investment Partner, Omidyar Network India 9
Karthikeyan Ramaswamy, Senior Vice President, Capital Float 11
Smriti Subramanian, General Counsel, Snapdeal 11
Vinay Kesari, General Counsel, Setu 12
Rakesh Verma, Head, Payment Products, Reliance Industry Limited (RIL) 12
Adoption of Technology and Upskilling 12
Manish Sabharwal, Chairman, TeamLease Services Ltd. 12
Adoption of Technology in the post Pandemic World for Online Dispute Resolution 14
Deep Kalra, CEO, Makemytrip and Sanjay Mohan, CTO, Makemytrip 14
Valedictory Address 15
Sanjiv Bajaj, Vice President, CII & Chairman, Managing Director, Bajaj Finance 15
What Next? 16
Bharat Visweswariah, Director, Omidyar Network India 16
Desh Gaurav Sekhri, OSD, NITI Aayog 17
Amitabh Kant, CEO, NITI Aayog
- Online Dispute Resolution (ODR) is a fast-evolving dispute resolution mechanism that uses technology not just to aid but to proactively assess efficient and affordable justice delivery.
- It can be used as a mechanism for solving disputes outside of the formal court system in an affordable and quick way, especially for small and medium value matters.
- In today's age of data driven solutions and machine learning ODR is more than just replicating existing processes online. Technology can aid the resolution of disputes by providing answers and critical insights for the benefit of dispute resolution.
- A collaborative mechanism of ODR provides this potential to resolve a substantial percentage of disputes at the site of their occurrence without burdening the courts.
- We will now likely see a deluge of disputes in courts, most notably lending credit, property, commerce and retail that will require expedient resolution. That is why new innovation models such as Online Dispute Resolution need explicit support.
- Supporting ODR would encourage:
- Businesses to build ODR mechanisms in their partner-customer relationship
- Banks, NBFCs and MFIs to prioritize ODR before they approach Debt Recovery Tribunals.
- Families to take recourse through ODR for addressing sensitive issues.
- A robust ODR ecosystem in India will:
- have high potential to reduce the load on courts by resolving high volume of disputes outside the court.
- allow gaining access to justice and ease of doing business by making dispute resolution cheaper, quicker, and most importantly, equally credible as conventional methods
- increase trust in businesses and also within society by prioritizing collaborative resolution
- It is vital that key stakeholders come together and see what steps we can take to remove the barriers to scalable ODR. The result would be a range of ADR inspired creative technology driven solutions that could significantly reduce the load on our courts.
Emergence of ODR in India
J. B. N. Srikrishna, Former Judge, Supreme Court of India
- A dispute really begins in the minds, and that is when a dispute must be deconstructed and bring out a conciliatory approach. ODR is a preventive mechanism.
- There is a need to encourage the mindset that you don't have to rush to the court to solve the dispute. That there is an ODR mechanism which can be done with equal advocacy to resolve disputes.
- People should adopt the mindset of resorting to mediation and conciliation before a dispute germinates and becomes adversarial, and arbitration as an alternative to litigation.
- There is nothing in the law that prohibits ODR. We don't need to have an amendment to the Arbitration Act per se, arbitration can be done on an electronic platform. If it can happen face to face, it can certainly happen remotely on a digital platform.
- ODR complements the formal court system. ODR systems will prevent a large number of litigations unnecessarily being cluttered into the courts. This will also help in the court's time. The courts will have the time to address disputes with more important issues. It will help in clearing the backlog in courts and free up space in the court calendar.
- A party to a dispute need not travel to court to solve a dispute. It can be solved electronically, Justice would have been delivered at a person’s door-step.
- Another aspect to look at is development of technology to meet the challenges and minimize digital divide. This problem should be solved to the best of our ability.
ODR in India, Opportunities & Challenges
Pramod Rao, Group General Counsel, ICICI Bank
[Apart from courts embracing online processes], there are three other types of ODR that we have been actively both exploring and pioneering as a bank:
- ODR which encompasses arbitration, mediation, conciliation, and is administered by an independent institution that selects and appoints the neutral: For us, the independent institution ensures that the platform is secure and user friendly, neutrals are qualified, and the matters are managed to ensure timely outcomes. In our own experience, the matters we referred to ODR were resolved within 120 days at a maximum and a few hours at a minimum. Our own target for the institution is in reaching these outcomes in 45 days or less. We also favor outcomes which arise from Mediation and Conciliation as it reflects a joint intent to resolve the issues. And we look at arbitration as necessary only to provide finality or for matters which are open and shut. Our ambition is to extend it across all retail business at the bank, in essence, unsecured retail assets, secured retail assets, retail liabilities and for MSME relationships.
- ODR as an extension of customer grievances and customer complaints: Conducting an automatic check of our electronic records and database determines whether the complaint is rightly made, genuine and hence whether it requires redress and goes forward to provide the actual redress. This would allow swift response to the complaint with minimum human intervention to evaluate and respond to this.
- Voluntary or mandatory reference to mediation that judicial forums can adopt: It is not just Rajasthan, but also Delhi and West Bengal, which have embraced online Lok Adalats. And they are using platforms provided by these ODR institutions to make sure that it can actually work at scale and indeed decongest the courts. This will encourage other states, Legal Services authorities and judicial forums to harness the platforms and ODR mechanisms too.
- These three are taken in combination, or separately, have a huge ability to enhance both the confidence of the business community that contracts will be enforced in a timely and fair manner, and for the customers and citizenry that fair, trustworthy, transparent attendance to their issues will occur.
- This is too early in the process to think of legislating or regulating ODR. There will be both innovation and disruption that will occur. There will be learnings, there will be missteps, mistakes but only after observing the space for a couple of years should we consider legislating or regulating ODR.
- We have to be alive to the issue of digital divide. We should not necessarily think of ODR as only being on video or chat. Audio is as much a component of ODR. And even if our smartphone penetration is probably estimated to reach 500 million people. With feature phones or access to even internet points or STD booths, we can actually expect coverage of more people from the ODR mechanism point of view.
Cyril Shroff, Managing Partner, Cyril Amarchand Mangaldas
- February 2020 and August 2020 are worlds apart. This opportunity must be used to reimagine dispute resolution and conflict resolution for the future.
- This is an opportunity to not just use technology to optimize the old way of doing things, but to also use our imagination, create the right alliances to utilize the real opportunity that exists.
- Whilst we may have to take baby steps, we need to reimagine dispute resolution for the larger and complex projects too. Innovating dispute resolution requires us to ask the following fundamental questions.
- Is justice a service? Or is it a physical space?
Subconsciously, our idea of access to justice involves going to a physical space, which may now have been substituted by a digital space for it's no longer about going to court or going to a local office and asking for justice using an adversarial format. What we need to think about is whether we can now imagine justice as a service which can either be dispensed with by the state or in a partnership between the state and the private sector.
- What parts of the justice system are pure processes? And what parts of it are human sensibilities?
Mr. Amitabh Kant mentioned the use of AI and machine learning. We need to bring that more into the mainstream conversation and use AI for a large part of legal processes, leaving a smaller but certain space for exercise of human judgment. This will not only give us satisfaction that justice has been given by humanity, but would have also significantly speeded up the whole process.
- How can AI and data in the entire process be imagined in a deeper way?
Servers, better internet and better video conferencing and telepresence are all base level tools for providing dispute resolution services. They're not fundamentally reinventing justice. To fundamentally reinvent the space, AI will have to find a place.
- Is justice a service? Or is it a physical space?
- Law firms need to develop a culture of curiosity and an incubator mechanism. So, in our firm, we have Prarambh, a legal tech incubator that will next focus on access to justice using legal technology.
Krishnava Dutt, Managing Partner, Argus Partners
- There are two parts to this discussion. One part is ODR, which is private resolutions that Pramod alluded to. The other is about the justice system as a whole. To make this a more complete narrative, we need to speak about both.
- The three main questions are:
- Do we have to re-think CPC? Do we need a notarization today?
CPC - Yes. There isn't an enormous amount of traction in e-filing, e-courts and video-conferencing. E-filing at the ground level is where the majority of the courts that adopted e-filing are continuing to print, scan, and upload the documents.
Notarization - Notary is a means of authenticated documents, and therefore authenticating the authorization. Today, the world is transacting in billions of dollars and authenticating the dual process of maker and approval. A two way authentication to the client would significantly ease the process.
- Do we need overhearing for most of the matters today?
Summary proceedings such as Section 7 applications with limited questions of fact may not need overhearing. Examples: DRT applications, consumer forums can follow a process similar to WIPO that has a uniform domain disputes resolution process where there is no hearing, the complainant files, the respondent files an objection, the complainant gives a rejoinder, the arbitration panel passes the order. It's simple. Moreover, where there are questions of law or fact involved, the Judge may also request the parties to present their submissions and not necessarily require hearings.
Countries with video conferencing especially for summary proceedings are far more expeditious and cheaper to access justice. While there is stress on advocates, lawyers and litigants that do not have access to proper infrastructure, parties dealing with transactions with tens of millions of dollars would not have an infrastructure constraint. Efforts to build proper infrastructure can parallelly continue. This way justice delivery becomes faster and cheaper.
- Do we have to re-think CPC? Do we need a notarization today?
- With the data that we have today, a lot can be done, so much more, because this is the only set-up possibly that has 150 years of data available, no other sector has so much data available. Eventually with proper machine learning and proper tools, we can use this data to deliver justice.
Amit Kapur, Joint Managing Partner, J Sagar Associates
- If we continue to think of justice as only the courtroom, rule of law and resolution of a dispute only in a particular platform, we are always going to fall far short and will short-change ourselves. ODR is not actually limited to courts and tribunals, but it's more about outside the courts and seeking to resolve matters which need not unnecessarily clog the arteries of justice as it were.
- Matters that would have been heard over a course of seven days, were concluded in a session and a half because we all filed 20 page written notes, the court recorded the proceedings, and the transcription was available, and therefore it brought the urgency to cut to the chase and deal with the issues.
- As Doris Goodwin, the famous Harvard historian said "in times of crisis, things become possible that would not be possible in ordinary times". And we are at the fortunate cusp of an economy, which is quite digitally inclined, has done well on the back of digital progress.
- There are three important factors that we need to fix for ODR to work:-
- Credibility: The most important thing is to gain credibility. If any corporate entity, whether its government owned or private does not have a credible mechanism to resolve disputes, there is no question of moving ahead. This is an institutional vacuum that we need to address.
- Skills: In the case of a corporate entity addressing a consumer grievance redressal, the corporate comes in with much better ability in terms of knowledge, skill set, acumen and access to resources. We need to, through an institutional mechanism, empower consumers with guidance on a digital platform – where with a push of a button, the consumer feeds in a few questions and gets answers on the consumer’s rights and protections. This will help the consumer understand their entitlements, and enable them to discuss and resolve it.
- Mindset: The short-term mindset of institutions is to prolong the dispute, or get into disputes. The actual incentive is to try and resolve because that's when the entity which is resolving gets the goodwill of the people that they need. And unless we change our mindset on that, they will at the drop of a pin run to disputes rather than run away from it.
- Technology is a huge barrier, which comes in the way of the common man accessing justice. If we can combine the ODR platform with initiatives that address the digital divide such as NIIT Foundation’s ‘hole in the wall’ project, which makes technology available to the most economically challenged sects of the society, I think we will go a long way in resolving this.
Ajay Bahl, Co-Founder and Managing Partner, AZB & Partners
- Online dispute resolution whether with or without judicial intervention is something we must promote. Anything that is an impediment whether in the law, or procedures, or anything that reduces its efficacy must be eliminated. Online is a facilitation mechanism, and technology is a tool to help us in a much broader way to de-clog the courts, to make it easier for matters to be settled, to reduce the future pipeline.
- Our default mechanism for seeking information is summoning somebody. This creates a massive problem that results in complaints of harassment, complaints that the statements are made under coercion, and several other issues. Online, audio-visual means of communication for cross-examination can solve those problems in a major way and make the process much more transparent. If we can use technology to conduct an investigation, cross examination, he or she cannot later complain about the process.
- If data is collected, and properly put in shape, it would do two things:
- Highlight challenges: Data would show the perilous nature that our system has reached and put pressure on everybody in the ecosystem, including the lawyers. Data is going to show how desperately broken the system is across not just the courts, but across so many other places where actually justice is being dispensed.
- Aid in impact assessment: If data is properly analyzed, it will give the ability to make an impact assessment of changes to bring about. For example, there are close to 2.3 crore criminal cases pending just before the lower courts. If we knew how many of them are summons cases, smaller offenses and warrants cases, we would be able to make an assessment on whether increasing the number of disputes or criminalities as compounded would have a meaningful impact in de-clogging the courts and reducing the pipeline for the future.
Poornima Sampath, Vice President – Group Legal, Tata Sons
- Decongesting the judicial system is a social prerogative. From a corporate perspective, I would tie in the need for less litigation with stronger brand protection and goodwill.
- Analysis of any conglomerates’ disputes will typically indicate three categories of cases: (i) consumer cases, (ii) disputes involving business partners and, (iii) those with government. For cases involving consumers and business partners, we need a reliable framework to settle/ address disputes before they opt to litigate. ODR/ Consumer Ombudspersons Framework has tremendous potential here.
- Let’s start with consumer matters. A viable option is to set up a ‘Group Ombudsperson Consumer Framework’ where:
- there is a state-of-the-art technology platform for consumers to log-in to the system with potential disputes (e.g., issues with a car purchased; power bills; fault air conditioner)
- The consumer can upload bills and invoices - the platform will have a user-friendly interface that directs a layperson to fill in complaints/ disputes.
- The Ombudsperson Consumer Framework will be supported by a panel of independent judges and technical experts that reviews the complaint / dispute and comes to some resolution with agreed timeframes.
- The conglomerate/ company must commit to abide by the decision of the panel and not appeal.
- Invoices, purchase orders and contracts need to document these expectations for dispute resolution.
- This will result in companies staying singularly focussed on the customer journey - overall, a stronger experience with a brand.
- The next step would be to use ODR and build a similar platform for disputes with retailers, stockists, distributors, franchisees, et al. To resolve B2B disputes as far as possible within the ODR framework
- The net result will be first and foremost - brand protection. This is an extension of strong customer relations. As a social fallout of this, the judicial system will be decongested.
- The social costs of litigation around products, services and business relationships is high. Related to a strong customer / business journey is the ability to resolve matters before it gets to courts.
ODR Startup Innovation Showcase
Sachin Malhan, Co-Founder, Agami
- It’s very tempting to look at ODR, as ADR digitized. The truth is that it is much more. Technology is often referred to as the fourth party in ODR, because of how it could disrupt it. We should look at ODR, not from the point of view of automation, but transformation. We need to take the blinkers off and see what the possibilities are when we're designing solutions. ODR is a combination of ADR techniques, with technology, data, and of course, that fantastic factor, which is design.
- The top start-ups in the ODR sector include Center for Online Resolution of Disputes, SAMA, RDO, Law Wagon, PreSolv360, AdresNow, CADRE, Crek, JustAct and WebNyay. These are all at different stages of development, some of them still to launch commercial services and some at a very advanced stage, not just servicing double digit enterprises, but also powering Lok Adalats.
- For the last two years, the start-ups have shared resources, collaborated, and they've met multiple times to work on how the industry can actually be progressed. How do you have self-regulation? How do you ensure the quality of neutrals? I think that this trend of being able to compete furiously while also having each other's back and interests in mind is the trend that we want to actively nurture in the Indian ecosystem.
- Most of them have multiple founder start-ups. 80% of start-ups have a lawyer co-founder. 80% of them have an engineer co-founder, which is important because ODR is a collaboration between law and technology. 50% of them have a mediator co-founder and 40% of them have an arbitrator co-founder.
- The kind of disputes ODR start-ups are looking at right now are personal loans, landlord-tenant disputes, ecommerce, employment, supply chain and payment. Enabling policies and laws (e.g. making conciliated settlements mandatory for certain kinds of disputes) could unlock tremendous energy in the ecosystem.
- Heads of legal industry and legal heads of enterprises are arguably the most important stewards of this change. The question must be how to do it; not if. And really, that's where the energy should be directed. Let's not point out just the problems, lets point out the pathways and let's leverage our influence, our knowledge and our networks to make them happen.
- One thing is, of course, a direct saving of time, energy, costs. The other is the opportunity costs of that, in terms of trust is so much more.
Understanding Industry Applications for ODR
Amit Bhasin, General Manager - Legal, Unilever
- In the early 2000s, there were a large number of shares related disputes that were getting accumulated. This led to the value being locked, the shares being locked, the dividends being locked, and shareholders not getting the benefit of it. To address these disputes, we used alternative dispute resolution.
- Unilever appointed five former high court judges that brought disputing parties onto the table, and adjudicated on the matter. The decision of the judge will be final, and the company will accordingly transfer shares to the individual. This helped resolve 80 per cent of the cases, and it was a huge value unlock for shareholders. We extended this model to our consumers as well as vendors, and thus far it has worked well for us.
- All the three examples I'm giving you are the ecosystem of industry, the employees, consumers, vendors. They may have a different point of view, but in the long run this ecosystem is the one which is creating value for shareholders. So I think with that logic, I would say these are three areas that I would really prioritize.
- A company does not want to fight its consumers on very petty issues related to service not being delivered, or the product does not meet the expectation of a consumer etc. These disputes linger in the consumer court for years and create frustration for the consumer. So, consumer disputes is an area where this can be a huge success, especially because the industry does not want to fight with the consumer.
- The other category is vendor related disputes. Vendors are again part of the ecosystem, and that helps Unilever in running the business. ODR kind of mechanism can clearly help us resolve them fast because a value, commercial value gets stuck because of the litigation leading to frustration for the businesses. None of the forward looking businesses would like to really get their value stuck for these kinds of litigation. The other category is employment and labour cases.
- The first principle for me is credibility and the trust right, they should be convinced that if they are going in this forum, they are going to be absolutely unbiased, if there is a slightest doubt to say that this is something which because a big company is starting, if that is an apprehension the system can never work. Our approach is to abide by the judge’s decision, and not appeal it, while at the same time allowing the consumer to appeal it, signalling to the consumer that this was a credible process.
- ODR should bring some degree of finality, I think the legal system we have in our country we can keep on litigating and keep on lingering the matters for years. There is a need to find a way to also bring a degree of finality to the dispute as these are small matters, they can be resolved quickly, and therefore it will keep the consumer and company feel that if they get into this particular process, it will bring a degree of finality to the dispute.
Shilpa Kumar, Investment Partner, Omidyar Network India
- The same efficiency for customers to purchase products and services, we don't often see that when there is a dispute. In fact, it probably is worse, because quite often, with digital transactions, the person on the other side is remote. And therefore, resolving a problem for a customer is hard. And customers often end up voting with their feet when they have product or service issues. This is a huge cost for businesses and consumers. For businesses, ODR is more about customer retention and means to save costs.
- Businesses that are digital will be one of the first adopters of ODR because they already have infrastructure which can support an easy move to ODR. These businesses will also have large volumes of low value transactions where ODR can be really efficient.
- Another early adopter will be the financial sector, even somewhat offline businesses like banks and NBFCs for three reasons. One, once the moratorium lifts, there will be a large number of disputes flowing in. Two, these enterprises are already familiar with ad-hoc arbitration. Three, these institutions have digitized a larger number of the processes that enable them to quickly integrate with ODR start-ups.
- ODR can actually deliver scale in terms of dispute resolution, you have eBay doing more than 60 million resolutions a year, almost 90% of which are actually without human interaction. And also in terms of efficiency, at eConciliador, a Brazil based negotiation platform, utility disputes are being resolved in less than five minutes. Therefore, ODR can result in enormous saving in terms of time, as well as efficiency at scale.
- In the case of welfare payments provided by a business correspondent company, sometimes the beneficiary is not able to access the benefits because the transaction does not work. At present, there is really no knowledge in terms of which of the eight hops in that transaction has gone wrong. And therefore, the exciting part of ODR is that it can generate information about what the challenges are, it can be fixed, and can drive better user experience and satisfaction.
Karthikeyan Ramaswamy, Senior Vice President, Capital Float
- When you can shop online, when you can take a loan online and most recently, when you can consult for a treatment online, why shouldn't we be able to resolve a dispute online?
- The growth of disputes arising out of online digital transactions are expected to outperform the rate of growth of the transaction itself unless acted upon it externally. One reason for this is because the gap between what we asked for and what we get is getting wider as we move from face to face to digital transactions. And, the other significant reason that I see as to why disputes would rise exponentially for a digital lender like us is that the transaction value is getting smaller and smaller. Our existing redressal forums today are not designed to handle such small value transactions at such volumes.
- Critical features of ODR platform are for it to be correctly accredited, for it to make it easy for filing and contesting cases, to be cost effective, and something that can provide quick resolution. Disputes that originate from people that have the ability to pay can be easily resolved through a discussion. And that is the reason for ODR.
- ODR 1.0 will not be exactly as we envisage them at this point of time. What is important for all of us as an industry, and as part of the ecosystem is to be committed to it and stick to it till the time evolves and the solution wraps around it the way you want it.
Smriti Subramanian, General Counsel, Snapdeal
- The most challenging thing for eCommerce over the last 10 years has been adoption of the platform. This is primarily because of the trust deficit that we have. ODR as a solution, which promises faster resolution, which offers transparency in dispute resolution is absolutely necessary to create a trust ecosystem.
- Building a huge database of disputes and litigants will be extremely useful for law enforcement and the companies to either review their own products or to enforce better use of the marketplace. In eCommerce, we see deviant behaviour in sellers, as well as deviant behaviour in buyers. A technology powered ODR platform with a large amount of data will help identify these deviant behaviours and pre-emptively help companies to avoid conflicts.
- Creation of a central database of commercial disputes and sharing of this data enable governments, companies, policy makers, regulators, and enforcement agencies to learn from the insights that come from the data. If there is analysis of disputes within each different company, in silos, the data sets are too small to actually apply big data or artificial intelligence on them effectively.
Vinay Kesari, General Counsel, Setu
- Financial Services need to reach the real India. The penetration of financial services is still extremely shallow in India.
- Taking UPI as an example which are currently the dominant form of consumer payments, especially, this is post-covid, they are at 0 MDR which leaves no revenue pool left over to really budget for eventual dispute situations about who's going to take care of it and who’s going to pay for the cost of resolving those disputes. So this leaves a very large vacuum to fill.
- There is a need for clarity on the types of disputes that can be dealt with by ODR, as it is not a silver bullet. We cannot solve every kind of dispute through ODR .
- The key point to dwell on as a dispute resolution professional is standardization. Right now, there is very little standardization in this space. In this case, the types of disputes possible, the pieces of evidence that need to be presented in order to resolve this dispute, the weightage given to them, the reasoning parts that are used to reach a conclusion: needs standardisation.
- The reason why Financial Services is a good way to start this is because financial services are a very huge source of disputes. Possibly, outside of government litigation, the largest source of disputes. They are also relatively easier to classify into specific categories and resolution paths.
- With APIs, there can be a vibrant ecosystem of ODR providers as long as there is some level of standardization through APIs. The lenders, payment companies and consumers as well, will all have choices.
Rakesh Verma, Head, Payment Products, Reliance Industry Limited (RIL)
- An important point which needs to be taken care of is that whenever a person logs on to a system and registers a dispute, care should be taken to provide an interface of multilingual features.
Adoption of Technology and Upskilling
Manish Sabharwal, Chairman, TeamLease Services Ltd.
- We are banging against the sins of omission rather than the sins of commission. What we don't do is now becoming more important than what we do wrong. I think we have always defined reform as sort of fixing what we are doing wrong while I am now banging reforms as the sort of challenges of what we don’t do. COVID sets off a digitization super cycle, partly because of the mandatory digital literacy course for everybody on the planet. Irrespective of caste, creed, age, education, everybody has been subject to a mandatory digital literacy course. It would absolutely be wonderful if this could impact justice.
- I think the digitization of the ecosystem of employer compliances would itself really benefit from online dispute resolution.
- I think that we are on a wonderful cusp of solving something people like us face. Employment law is an area where online dispute resolution could work really well. I think this could be the sort of “boni” for ODR. When they're two consenting adults between an employer and an employee, I would submit that online dispute resolution in employment law could be a hit.
- I think from my perspective, this is a little bit like what happened in bankruptcy. If you think of bankruptcy as an industry now, that is being borne or created in front of our eyes, out of the thousand bankruptcy professionals, most of them are chartered accountants and company secretaries who have repaired or upgraded themselves. So if you think that there are six and a half lawyers in India, if we say there are about two and a half lakh Chartered Accountants in India, how many of them are working as a question.
- I think that if you think of any skill system it has three leg systems which are certification, delivery and financing. I think with certification, we will have to be careful. I don't think we want to do it too early. I think that any certification has to get the balance between the entry gate and the exit gate right.
- On certification, don't do premature load bearing but don't wait too long. Don’t become like ITIs with wide open entry gates and wide open exit gates. There is a need to think about this because if signalling value is lost for professionals, it is very hard to recover and too many professions in India have devalued certification.
- I would submit that the first one lakh resolution professionals would come from the existing pool of people we have. The financing and certification question may not be as important.
- So I would submit that if there are 1.3 million cases filed every month and 10 times those number of cases, as you have suggested in some of your research are people who don't go to lawyers or don't get expert advice, I think that the one lakh number for resolution professionals is underestimated. I think this number could be much higher than one lakh resolution professionals and 10,000 program managers.
- India doesn't have a jobs problem, we have a wages problem. It is like the IT sector in India. IT sector is only 0.7% of India’s labour force but it's 7% of GDP. So it's an oasis of high productivity. I think online dispute resolution professionals could get created at a much faster pace than any other profession we have seen in India because of the digitalization super cycle we have seen and prompt this kind of productivity.
- It wasn't God's will that it should take 72 years for 1.3 billion Indians to cross the GDP of 66 million Britishers. One of the reasons is the inequality of justice, the delay in justice, and sort of the breeding of the millions of court cases and so I think that you're onto something really big.
Adoption of Technology in the post Pandemic World for Online Dispute Resolution
Deep Kalra, CEO, Makemytrip and Sanjay Mohan, CTO, Makemytrip
- If there were ever a solution, which was made for India, or a technology problem, which was ever made for India, then it is ODR.
- I really think, what people have said before, we have the mind, we have the know-how, if we can do this in other parts of the world, why can't we do this for ourselves. So I believe it's a no brainer that we should be building this, whether we build it in what is on the Amitabh’s very well proven, successful model of a PPP, or all privately, it remains to be seen.
- Very interesting part of the ODR project is that it fits in beautifully into the India Stack program. We can actually leverage the India stack, which has already been built very specifically on the data side.
- If we were to envisage an ODR spectrum there are a few things I want to call out. The fundamental thing is, if you look at the y axis, we are looking at the volume. So if you look at the volume of cases or the volume of information, obviously, the maximum amount that we have is right up front in the phase where we are still evaluating this largely internally.
- Disputes can be nipped early in the bud if a rule based system can be built. Savings can go up 0.2 % of GMV which we believe can go up to 50 crores or more.
- If you go to the green box, what I'm talking about is avoidance within the firm. Again, based on specific data processes, a rule based system can be built in. When you move to stage two or tier two, as we call it in the mediation, that is where the problem diagnosis moves to a party to party negotiation. How we monitor that, as well as case-management is critical.
- The third and final phase is around adjudication and post resolution support. If you look at the grey focus areas of technology, you will see that fundamentally technology has a huge play and technology can actually take most of the heavy lifting out here.
- We believe in this whole kind of ecosystem of ODR, the handshake is very critical. The handshake is between the firm on one side and mediation adjudication on the other side. And we think the key elements of the handshake out here are around trust. So a trusted interface becomes super critical. If you can’t trust the system, then, you probably won't offer this option. Especially with data privacy, now becoming so much more important, you have to give the relevant data but at the same time, safeguarding the privacy of the individual, and this has to be done with permission, which is important.
- If you don't have ODR with Artificial Intelligence and Machine Learning then this is going to be a static system. So we need to make it a dynamic system.
- You have to also democratize the data. From an ODR perspective, the transparency of data has to be supreme. So as we ready ourselves for ODR, data is something that has to be democratized and made available.
- Then after that you have this entire AI/ML model. AI and machine learning models that will pick up all the raw data, refine it, and then have trusted insights which come from all kinds of aggregated UGC. So machine learning can solve a lot of those issues with feedback loops that come into the model.
- Readying India for ODR, I think if all the companies start democratizing their data for the sake of giving transparency to the customer.
- If we have to solve it at India’s scale it has to be a multi-tiered federated architecture, call it a hub and spoke model if you will, but the thing that you see in black in the central path is a central agency for dispute resolution that could be consumer forum or courts that could be at the national level and within that I have listed a lot of things which would fall under within the India Stack probably, or use elements from the India Stack.
Sanjiv Bajaj, Vice President, CII & Chairman, Managing Director, Bajaj Finance
- We know that ease of doing business has been a very significant priority of this government for the last few years. With a number of initiatives taken, India's rank in ease of doing business ranking of the World Bank has registered a significant jump by 79 positions from 142nd to 63rd position in 2020.
- One of the areas where clearly there is scope for improvement is in enforcing contracts with our country ranks only at a 163rd position in this, for many reasons, including the amount of time it takes in dispute resolution, a limited number of commercial courts, lack of specialized judges, inadequate court infrastructure. In addition, we know people have talked about the current pandemic that we are going through, it's very clear that this is going to result in a another whole set of new cases that are going to come up through the business stoppages, delayed payments, and this is going to further burden our courts and the system in general. It is hence inevitable in these times that a transformational change in how we conceptualise the interaction between citizens, the industry, the legal fraternity and the judiciary. It is required to expedite the dispute resolution process.
- We need to place importance on the innovative ways of ODR. We know in the past ADR mechanisms have helped the judiciary to dispose of a plethora of cases which otherwise would have come to them. But the impact of ADR over the last few years can be multiplied if it is coupled naturally with technology. That is why it is exceedingly important to leverage ODR in our country, unlock its true potential and to enable resolution of dispute in a collaborative and online environment.
- We at CII are clear that ODR is a very important pillar of the future of justice, which together brings mediation, arbitration and negotiation and allows disputing parties to decide how they want their disputes to be handled.
- To implement ODR nationally, we need proactive efforts by the Government, the judiciary, lawyers and litigants so that we together create an ecosystem that's conducive for online dispute resolution.
- Safeguards must be introduced to ensure confidentiality of our proceedings of data and documents, while resolving disputes through the ODR mechanism. This is of course essential, to maintain confidence of all parties in virtually running this process. It's also crucial to find the right solutions to increasing challenges of cybersecurity and data privacy.
- ODR mechanisms have to be made available at an economic cost, especially for MSMEs. MSMEs are our largest base in CII. This is an age old debate especially where you have startups involved. Do you get the volume first, or do cut price to get the volume. And I believe keeping in mind the long term opportunity and need all for ODR in our country. We have to see up front that the mechanisms the whole process has to be cost competitive.
- The necessary laws must be put in place to ensure that the awards announced on virtual platforms are adhered to at the grassroots level. And the cases don't get reallocated to the conventional judicial system. We have to make sure that once the decision is taken, it is disposed off and in many cases that will come to ODR will be the type that will be small value cases.
- We must also see that there is scope for learning from other countries in this sphere. For instance the government of Hong Kong established the COVID-19 ODR scheme to provide speedy and cost effective services to businesses in particular to MSMEs in these times. The International Centre for Dispute Resolution, the Singapore International Arbitration Centre, and others have also recently issued guidance to facilitate remote participation in hearings, video conferencing in general.
- CII stands shoulder to shoulder with the Government to ensure greater reliance on ODR. We are contemplating setting up a CII Centre for Alternate Dispute Resolution, and promote the centre as a hub for national and international arbitration and a preferred destination for ADR for the government and the industry.
- Further through the centre, CII will impart training, undertake research, and various interaction seminars and conferences and interact with various national and international arbitration forums to promote ADR and then use technology to take this to ODR.
Bharat Visweswariah, Director, Omidyar Network India
- For people who are still on the fence or who still don't know what ODR is and what it can do for them, of the resources we can bring to help them understand what the biggest applications are, one of the resources we're working on creating is a toolkit.
- There are a number of startups that are out there in the ecosystem, willing to assist with that journey as well. The biggest takeaway is that this feels like an opportunity that's ready for now. It is really only waiting for the entrepreneurial energy of industry to actually sort of capitalize on this opportunity.
Desh Gaurav Sekhri, OSD, NITI Aayog
- A committee has been constituted at NITI Aayog under the chairmanship of Justice Sikri, former Supreme Court judge, to build a framework for ODR in India.
- One of the most prevalent aspects of ODR is the consensus. Consensus building is what's going to determine how successful ODR is going forward.
- The specific words that stood out today are consensus, trust, integrity, transformation, the absence of bias and finality.
- It's not a question of creating a specific framework. It's a question of enabling an ecosystem that is conducive to the entire landscape of stakeholders being active participants, taking the lead in their individual capacities.
- It is about making sure that we can make ODR a point of first contact for dispute avoidance and containment.
- We heard a number of really interesting applications of ODR across today's discussion. Whether it was in areas like labour or consumer disputes or disputes with business partners. It sounds like an amazing amount of innovation and thinking that's already starting to go into what ODR can do.
- One of the most exciting opportunities that we are seeing and we have already seen three use cases for them recently in Chattisgarh, Rajasthan, Karnataka is in e-Lok Adalats. Just today, Delhi High Court is looking at an e-Lok Adalat. Pilots for Lok Adalats are a very exciting opportunity. In Chattisgarh, nearly 3500 matters were heard in a single day across 200 benches. Some of them dealt with as simply as on a WhatsApp phone call.
- There is evidence of widespread use of technology, not just as an enabler, but as an active fourth party. The use of technology is enabling access to justice for those who need it the most.
- The most important component is that we need everybody's voices to be heard, stand up and be counted. I think that if everybody is able to share their vision, suggestions and their key takeaways from what ODR can achieve, whether it's within a microsystem or whether it's in a broader overall vision, we will go a long way.
- All of us are here to listen and all of us are here to ensure that we optimize the unique situation. Between February 2020 and August 2020 we are living in an entirely different world, as Mr. Shroff had so aptly said. We really have to use this time, given these circumstances in what we're expecting to happen.
- For ODR, the judiciary has been supportive, industry is already looking to make its own inroads into how best to facilitate use cases, and the Government is as encouraging and as supporting as one could really hope for.
Satwik Mishra (Young Professional, NITI Aayog)
Keerthana Medarametla (Agami)
Tariq Mustafa (Associate, Investments, Omidyar Network India)