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Key Takeaways of Meeting held to discuss the Online Dispute Resolution(ODR) report of the NITI Aayog constituted Committee chaired by Justice (Retd.) AK Sikri

Key Takeaways of Meeting held to discuss the Online Dispute Resolution(ODR) report of the NITI Aayog constituted Committee chaired by Justice (Retd.) AK Sikri

Compiled by : Desh Gaurav Sekhri OSD Law and Satwik Mishra YP

 

A high-level online meeting was held on December 29th, 2020 to discuss the draft report of the Committee constituted by NITI Aayog  to formulate an Action Plan for Online Dispute Resolution. Addresses were made by Hon’ble Justice DY Chandrachud, Justice (Retd.) BN Srikrishna, and Ld. Attorney General of India Shri KK Venugopal. Addresses were also given by the Chairperson of the Committee, Justice (Retd.) AK Sikri, CEO, NITI Aayog, Shri Amitabh Kant, and Secretary, Department of Legal Affairs, Shri Anoop K. Mendiratta. Legal experts Shri Ajay Bahl, Shri Rahul Matthan and Shri Pramod Rao were in attendance, and also Shri Dilip Asbe, CEO, NPCI, amongst others.

 

Justice Chandrachud, in his Inaugural Address, said:

 

I appreciate this initiative by NITI Aayog and particularly the meticulously compiled report which is being brought out on ODR.

 

It needs to be commended as a unique analysis of the interface between dispute resolution and technology and its prospects in India.

 

The engagement of NITI Aayog with dispute resolution is significant from more than one perspective. Dispute resolution covers substantive areas, which is what we do at courts. The second which is equally important is the procedural aspects of dispute resolution. The third is the institutional aspect of dispute resolution which covers issues such as capacity building, creating infrastructure, training and awareness. It is in the second and third, and to a certain degree in the first, that the involvement of NITI Aayog has a huge potential. Going forward, e-Committee of Supreme Court of India, look forwards to a greater interface with NITI Aayog, so that the policy initiatives we are putting in place can be fine-tuned and structured in collaboration.

 

On the first 9 days of the hearings of Supreme Court opening next Monday, we have as many as 280 cases listed before my court. I was just on case No. 39 when I joined this webinar. Now, those cases cover a wide spectrum like Insolvency and Bankruptcy Code, Telecom Disputes Settlement and Appellate Tribunal (TDSAT), Securities Appellate Tribunal, National Consumer Commission, Insurance Claims and Criminal cases.  Tucked into all of these, I found a small claim of a widow of a workman who had passed away in 2014. He climbed up a ladder and fell down fractured his skull and died on the spot. The total award is of 8 lakhs. I will not get into merits of the case as I have to decide it in court. Consider a claim of Rs 8 lakhs, by a widow, responded to by an employer who says that I wasn’t the employer, but I engaged a contractor from where the employee came. In this wide variety of litigation, which comes before every court, there is a confluence of the very substantive and not very small, but important, disputes which don’t have to come before the court. Cases like motor accidents claims, cheque bouncing cases, personal injury claims and issues such as this may be dealt with by ODR.

 

The importance of the ODR movement beginning in the June meeting, particularly with the intervention of NITI Aayog, lies in the fact that it is an effort to decentralize the administration of justice. It is to look upon justice which is not something that is exclusively a preserve of courts. Courts are necessary and they can’t be supplanted as a part of the mechanism of the state, overall.  But courts aren’t necessary everywhere. We have realized that when we have given a fillip to arbitration and mediation. ODR is in the same line today of decentralizing the administration of dispute resolution.

 

For instance, today a large number of online transactions are taking place. E-bay was one of the leaders to come up with a methodology of online dispute resolution. We have transactions involving travel tickets and purchase in e-Commerce. Interestingly at the Supreme Court we get matters pertaining to small claims as well. Last week we had a consumer from Kerala, who had deposited an amount of Rs 57000 in 2014 for purchasing a scooter. Now she didn’t get her money back and was before the Supreme Court in 2020 for the claim. These concrete examples provide instances of the denial of justice to the common citizen. It is no great benefit to the consumer to argue before the Supreme Court years later on a dispute which should have been settled earlier. These disputes should be resolved by Online Dispute Resolution. For that we need to build infrastructure, create awareness, and an implementation mechanism which the report has told us all about.

 

The key to this whole area is the creation of Neutrals. We need to create platforms where disputes will be resolved. The providers of technology enabled service can provide a platform for neutral arbitration, mediation and conciliation and for online dispute resolution. We need to pitchfork technology for evaluation and resolution of disputes.

 

I would like to emphasize the role of professional bodies. There are distinguished representatives from the legal profession here. Professional bodies can offer trained personnel, law firms on a stand-alone basis or as a consortium of service providers can come together to provide a platform for ODR.

 

I would like to emphasize the role of industry. Industry can internalize dispute containment and avoidance through ODR.  Providers of technology enabled services, professional bodies and industry can play a vital role.

 

Now I move into the latter part of the presentation which is the role of Government. Government is the largest litigant in India in the form of revenue disputes, land acquisition disputes and bodies who are part of the State under Article 12 like corporations and local bodies. The Government can use and pitch fork technology from two perspectives. First, the Government can use technology to identify the parameters for settling disputes. In the Christmas special edition of The Economist, I was reading about computational linguistics. Laboratories have been setup across for developing computational linguistics including at Stanford. Government can use AI, first to understand how similar disputes have been resolved so that there is objectivity in understanding the parameters of dispute resolution. Government does not settle disputes because officers are worried that if they resolve disputes, they may be subject to a vigilance enquiry year down the line. If we use AI for the Government to understand the logistics of dispute, the Government can have an objective basis for resolution. I believe that at the second level, the Government can settle via Online Dispute Resolution. Having laid down the parameters within which a dispute can be settled, the Government can itself settle disputes and not come to Court. Smaller disputes have to be declogged from the courts. The Government shouldn’t look at every revenue dispute as a matter of substance but as a facilitative instrument to realize revenue. How is it different from any other task of revenue collection?

 

The process of appointing Neutrals for Online Dispute Resolution has an important socio-economic consequence which perhaps we haven’t thought about. This is to open up dispute resolution to a large amount of people who may not be able to access conventional courts. People who are disabled or visually challenged can be effective participants in ODR mechanism. Women, who by virtue of personal commitments are not able to dedicate a full-time commitment to court work will have the flexibility as online dispute Neutrals. They will contribute as productive members of the workforce. People who would otherwise be excluded from the workforce, despite their qualifications, can be effective contributors to ODR. This is one aspect which has a broader social impact.

 

The pandemic taught us that technology has come to be a part of our processes at the courts. The Supreme Court and the High Courts have shown the way. We have moved beyond the video platform for dispute resolution. We are already talking about live streaming of court proceedings. We are looking at this in the Phase III of e-Courts project. We have close to finalising an SOP for digitization of legacy records in Courts across India. E-filing has been launched.

 

I appreciate this unique effort by NITI Aayog. This is not a stand-alone project but should provide a greater interface with dispute resolution.

 

Justice AK Sikri, Chairman of the Committee, in his address said:

 

During the pandemic, the judiciary has stepped forward and ensured that justice delivery is an essential service which can be facilitated with the help of technology.

 

Justice D.Y. Chandrachud led from the front as the chairperson of the e- committee and ensured justice delivery runs optimally. Running of the courts is one facet of access to justice. Alternate Dispute Resolution is another facet which can be taken up with the help of technology and this is where Online Dispute Resolution comes up.

 

ODR is more than just online litigation. It is a public private partnership. We need inclusive justice where there is confidence in the process. Data management tools to imbibe confidence and predictability will be very important going ahead. The use of AI can be leveraged to resolve many disputes at its source.

 

I must commend NITI Aayog for the comprehensive report which has come about with the help of extensive stakeholder consultations carried out in the last 4 months.

                                                   

 

 

Attorney General Shri KK Venugopal in the Valedictory Address said:

 

ODR is essential today considering the fact that so far as the justice delivery system is concerned, it is clogged with a huge pendency of cases.  It is imminently important to find an alternative where the entry of cases itself can be mitigated for and ODR can facilitate this aspect.

 

The actual implementation on the ground will have challenges in ensuring disputing parties take the route of out of court settlement which needs to be addressed.

 

Small and medium cases can be targeted for mediation and online dispute resolution. There has been an overall increase of 64 lakh cases in the pendency across all courts. On the other hand National Judicial Data Grid would show that 149 lakh cases are instituted in the lower courts each year. In this, 1.07 crore cases are criminal cases and 41 lakh cases are civil cases.

 

Even if we take 41 lakh cases, and assume 50 % of them would be of small and medium value, we can consider cases unto 20-22 lakhs which can go through pre litigation mediation.

 

The building blocks on which the future of ODR can be built should address various facets. There are lakhs of training centers to promote digital literacy in rural areas. As ODR is mainstreamed, these can be leveraged for ensuring people take recourse to ODR.

 

India needs at least 200,000 mediators for pre litigation mediation. Therefore the enormity of the task also lies in building a workforce of mediators.

 

ODR would also require physical infrastructure such as a robust video conferencing facility and this must be ensured across India. I am sure with Justice D.Y. Chandrachud heading the e-courts initiative, we will have access to the best facilities across India for the benefit of citizens of this country. 

 

 

Justice Srikrishna, in his Special Address said:

 

There are 4 stages of dispute resolution. The first is the psychological conflict between parties. At that stage we have a remedy of mediation. The second stage is of conciliation where someone sits with them and finds a collaborative resolution. The third stage is when we need a neutral where someone adjudicates in arbitration. Finally we have access to courts, where state appointed neutrals resolve disputes and dispense justice.

 

I have always maintained that ODR is the idea whose time has come.  It increases the outreach of access to opportunities to resolve cases. It also reduces the pressure on the courts.

 

 I also agree with Justice Chandrachud where he suggests that the Government should use tools such as artificial intelligence and also come up with parameters to decide whether litigation is necessary.

 

As Mr Venugopal has said, it is important to focus on bolstering physical infrastructure to scale and mainstream ODR.

 

It is equally important to ensure that there is a mind-set change amongst people towards adopting ODR. This will happen as they gain trust in the system which is running efficiently and dispenses justices in a fair manner. That is the best encouragement for ODR.

 

Shri Kant, CEO, NITI Aayog, in his welcoming address said:

 

Technology can aid the resolution of disputes by providing answers and critical insights for the benefit of dispute resolution. In today's age of data driven solutions and machine learning ODR is more than just replicating existing processes online.

 

Our hope is that we put in place a report and action plan that not only enables ODR in a sustainable framework now, but one that adapts and endures the test of time for it to become an option of first recourse for several categories of claims in a dynamic fashion. I am grateful for the support and encouragement from all the participants today, and by the Committee Members in putting together this comprehensive report.

 

Shri Mendiratta, Law Secretary, said:

 

The situations emanating from the pandemic have led to new challenges. The ODR report shows how we can convert challenges into opportunities chartering a new frontier in justice dispensation.

 

The experience we have in pre litigation mediation can be leveraged for ODR.  We need to ensure from the government perspective and the common person perspective that cases are dealt with effectively and efficiently which ODR can facilitate.

 

The tremendous opportunity that ODR presents can complement the judicial processes and objectives.