Open Access Research Article
METHODS AND CHALLENGES OF ONLINE DISPUTE RESOLUTION
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METHODS AND CHALLENGES OF ONLINE DISPUTE RESOLUTION
AUTHORED
BY - AMALA I.M
1. INTRODUCTION
Online Dispute Resolution (ODR) is a method of dispute resolution which
is conducted online to solve a dispute (Katsh & Rifkin, 2001). ODR systems
can be categorized according to the digital technology used - First generation
ODR systems and Second generation systems. The main idea behind the first
generation systems is that the human beings remain the central pieces in the
planning and decision making processes. Computational tools are evidently used,
but they do not have any autonomous role in the course of action. In this kind of ODR systems the main
technologies used are instant messaging, chatrooms, video and phone calls,
video conference, etc. So, it is a kind of assisted negotiation where it
consist of both synchronous and asynchronous types of communication which is
assisted by a neutral third party to reach a negotiation through online mode.
So, there is both application of technology
and human interference in first generation ODR system. The second
generation of ODR systems is essentially the effective use of technical tools
rather than human intervention. Second generation systems extend its first
generation which incorporates new intelligent and autonomous techniques. In
order to develop intelligent and efficient techniques to support Online Dispute
Resolution, Artificial Intelligence based problem solving techniques is integrated with Online Dispute Resolution
ones and it works without any human assistance.
First generation of ODR system involves human intervention alongwith
computational tools and techniques to resolve disputes. Second generation ODR is the integration of AI with ODR
mechanism without any human assistance.
2. METHODS OF ODR
1.
Automated
Negotiation
Automated negotiation relates to those methods in which the technology
takes over (aspects of) a
negotiation. This is a negotiation process designed to determine economic
settlements for claims. Most of the ODR services in this area are so-called
'blind- bidding' services.[1]
The blind bidding service may be thought of as a type of auction mechanism
where some or all information about the players' bids is hidden.
Parties place secret bids at a maximum of three stages and when the bid amount placed at any of the stages
becomes equivalent to the pre-determined range set by the auctioneer, the
settlement amount is determined by an algorithm and the Zone of Possible
Agreement will be created and negotiation will be concluded.
In blind bidding, there are mainly two types of bidding services that are
relevant in the ODR service platforms.[2]
a. Double Blind Bidding
Double-blind method where two parties can come to terms without
disclosing their ultimate position to the other side. The double blind bidding
often involves two parties who seek an agreement on a monetary amount. One side
submits to the online system the maximum
that they would be willing to pay to resolve a claim and the other side submits
the minimum they would accept. The offers as made by each party is hidden by the ODR software
during the negotiation and no party has the opportunity of knowing the bid of
the other party. The parties submit up to three bids. The system tells them
when they are within a predetermined range, so they know they are close to a
compromise settlement. and if their bids come within a predetermined range or
amount then the system itself takes the midpoint of the amounts and that
becomes the amount payable.[3]
Eg. Cybersettle. It provides AI generated negotiations with double blind bidding service.
b.
Visual Blind Bidding
The visual blind bidding is often used by multiple parties and with this
process, unlike the double blind bidding, what is made confidential is rather
what the other party is willing to accept. In
this process, the parties in the
negotiations exchange their proposals in terms
of their demands to determine the range of negotiation of which
it is not hidden. The system then,
based on their exchanges, generates suggestions to each party requesting of the
party to accept the suggestion or reject those suggestions. The suggestions as
generated by the system to the individual parties are kept confidential of
which they aren’t disclosed to the other party. The parties continue their
exchanges in negotiating whiles the system still
generates the suggestions to the parties anonymously. When each party has accepted one or more of the suggestions within the predetermined
range, then through an algorithm in the system, a settlement is declared
with a fair outcome based on the suggestions and thereby Zone of Possible
Agreement is created.[4]
Eg. Smartsettle
With regard to automated negotiation, for instance, A & B flee away from
the crime scene for which both of them are
imprisoned for 2 years. Now the options
in the deal are if any one confess to the crime he shall be granted
immunity for cooperating. Partner will then serve
10 years in jail. If both of them confess, then both will end up spending 5 years in jail. But if
neither of them confess, both will
spend 2 years in jail.
A & B split up to take a decision to choose either of the deals. Both
parties will not be aware what option the
other party is going to choose. They have
to make their decisions independently. If both choose not to confess, both of
them will have to spend 2 years each in jail which is the best possible
outcome. But if other chooses to confess because of the immunity, the one who
chooses not to confess will have to spend 10 years. So, comparing with that, both of them turning against each other and spending 5 yrs in jail is not bad.
Hence in automated negotiation, it studies the strategic interactions
between self- interested economic agents. When competing, both parties choose
the course of action that better suits their interest the most no matter what
the other party decides to go. Parties will negotiate in their favour. Each
situation is considered a game since the persons involved in them make decisions
based on how they value and perceive the possible outcomes of the choices, made
either by them or the other person.
Parties place secret bids at a maximum
of three stages and the bid
amount given by both the parties are
based on the possible outcomes that best suits their interest. These are secret
bids hidden from the parties by the ODR software. when the bid amount reaches
an amount equivalent to the pre-determined range set by the auctioneer, it
helps the parties to decide the settlement amount. The system tells them when
they are within a predetermined range, so they know they are close to a
compromise settlement. This approach can guide the design of the interaction
mechanism itself, and thus force such agents to behave in certain ways.[5]
Example
Insurance claimant
settlement Single Framing
Carlos claimant
suffered injuries in an accident
covered by an insurance policy. Insurance Co. agrees to pay
claimant net settlement of $50-65K.
Modelling
Phase
Parties have different
preferences. Obviously, claimant
prefers the high end and Insurance Company would prefer to pay
lower values.
Solution phase
Help the parties reach an outcome with the pre-established range
acceptable to both. Acceptance will be somewhere in between the offer and the
asking. Overlapping region is the ZOPA(Zone of Possible Agreement).
What the claimant is willing to accept is confidential. In this process,
the parties in the negotiations make visual bids in terms of their demands to
determine the range of negotiation of which it is not hidden. The system then,
based on their exchanges, generates suggestions to each party requesting of the
party to accept the suggestion or reject those suggestions. The suggestions as
generated by the system to the individual parties are kept
confidential of which they aren’t disclosed to the other party. The parties continue their exchanges in negotiating whiles the
system still generates the suggestions to the parties
anonymously. When each party has accepted one or more of the suggestions within the predetermined range, it reaches a point where their offers overlap. then through an algorithm in the
system, a settlement is declared with a fair outcome based on the suggestions
and thereby Zone of Possible Agreement is created.
So here, based on the visual bids placed by the parties, the system give
them certain secret bids as suggestions which they can either accept or reject.
If they are accepting, and when the secret bid accepted by both the parties has
reached the point where their offers overlap with each other, the algorithm
will determine the ZOPA , settlement will be declared through the algorithm in
the system.
(1)
Anchoring and Adjustment
(2)
Availability
(3)
Self serving evaluations
Anchoring and Adjustment
To estimate the value of an option, negotiators are likely to start with
the value of a known option, the "anchor," and then adjust to
compensate for relevant differences in the
character of the known and unknown item. In blind bidding, the range of amount
which the party is willing to pay and the other party is willing to accept is known. The bidding will take place within this range and the parties reach a settlement. Visual blind bidding, when visual bids are made by
the parties which are visible to them, the system itself generates certain
secret bids which can be adjusted to these visual bids. When this adjusted bid
amount accepted by the parties overlap at a stage, the settlement amount will
be found out using the algorithm and negotiation will be concluded.[7]
Availability
When a negotiator's option could have a variety of consequences, each
probabalistic, rather than a single certain
outcome-for example, if the negotiator enters an agreement to buy the business under
consideration, the business might make a large profit or, alternatively, it
might go bankrupt-the negotiator will often evaluate
the likelihood of the various possible outcomes based on the
ease with which the possible outcomes come to mind. So, here the negotiators
reach probabilistic judgments based
on the available possible results, this method of judgment is known as the
"availability" heuristic.[8]
Self serving evaluation
having concern for one's own welfare and interests before those of
others; self-seeking. judge uncertain options
as more likely to produce outcomes that are beneficial to them. Depending on
the specific context, the bias could cause negotiators to overestimate either
the likely benefits that would result from reaching a negotiated agreement or
the likely benefits that would result from rejecting
the proposed agreement and pursuing an alternate course of action.
For example, Messick and Sentis (1979) divided subjects into two groups:
one group was told to imagine that
they had worked seven hours at a task while another person had
worked 10 hours. For the other group, the hours were reversed. It was specified
that the person who worked seven hours was paid $25. Subjects were asked how
much the subjects who had worked 10 hours should be paid. Seven-hour subjects,
on average, thought the 10-hour subject should be paid $30.29. However, the
10-hour subjects thought they should be paid more $35.24. The difference between $30.29 and $35.24—
Texas tort case as experiment
Texas Tort Claims Act is a set of state statutes that determine
when a city or other governmental entity may be liable for accidents or
intentional acts that cause property damage or personal injury.
An injured motorcyclist sued the driver of the automobile that collided
with him, requesting $100,000. Subjects are randomly assigned
to the role of plaintiff or defendant and attempt to negotiate a
settlement. Before negotiating, subjects are asked to write down their guesses
of what the judge awarded. Subjects are told that none of this information will
be shown to the other party. The two subjects are then allowed to negotiate for
30 minutes. It was found that the negotiators formed self-serving assessments
of the judge's award and that the discrepancy between the plaintiffs' and
defendants' assessments was correlated with the parties' ability to reach
voluntary settlement through bidding.[10]
Blind bidding is where the auctioneer choose not to disclose the details
of competing bids. Blind bidding is the process of submitting an offer (a bid)
without any knowledge of what the other potential buyers are offering
(bidding).
Argument Based approach
Argument as a piece of information that may allow an agent to:
(a) justify its negotiation stance; or (b) influence
another agent’s negotiation stance (Jennings et al., 1998). Thus, in addition
to accepting or rejecting a proposal, an agent can offer a critique of it. This
can help make negotiations more efficient. The agent, By understanding why its
counterpart cannot accept a particular deal, an agent may be in a better
position to make an alternative offer that has a higher chance of being
acceptable. In a trade union dispute,
for example, an agent representing the worker’s union might refuse an offer for a modified pension plan made by the
organisation’s management agent (Sycara, 1985, 1992). As a response, the
management agent might offer a different pension plan. If the union agent had been able to explain
that the problem with the initial offer was not with its pension plan but
rather that it did not include reduced working hours. the management agent was bothered exploring
different pension plans. Instead, the management agent would have concentrated
on finding an arrangement for workload reduction. Through arguments made on
negotiation, the parties can reach a settlement. Another type of information
that can be exchanged is a justification of a proposal, stating why an agent made such a proposal or why the counterpart should accept it. This may
make it possible to change the other agent’s region of acceptability7 (Jennings
et al., 1998), or the nature of the
negotiation space itself. The information or argument which is used by the
agent to justify its negotiation.[11]
For example, an employee negotiating a salary raise might propose a big
increase that gets rejected by the manager. After the employee justifies the
proposal by denoting her significant achievements during the year, the manager
might accept.. For example, the manager might modify the negotiation object
such that the negotiation involves
not only the salary amount,
but also the number
of working hours.
In this way, the manager
might be able to offer reduced working hours instead of a salary increase.
There can be different arguments to reach a settlement.[12]
2.
Assisted
Negotiation
First generation of ODR system involves human intervention along with
computational tools and techniques to resolve disputes.
The human facilitator will assist the parties to negotiate using the
technology that is available. The digital technologies used in this type of
negotiation includes instant messaging, e-mails, chatrooms, video and phone
calls, video conference, etc. So, it is a kind of assisted negotiation where it
consist of both synchronous and asynchronous
types of communication which is assisted by a neutral third party to
reach a negotiation through online mode. synchronous communications are scheduled, real-time interactions by phone,
video, or in-person. All parties are online at the same time.
When a message or request is sent, there’s
an immediate response. Here, the communication is instantaneous. Asynchronous communication happens on your own time and doesn’t need scheduling like that
of e-mailing, messaging. It provides
flexibility to the parties
to respond according to their convenience.[13]
Third party assistance in assisted negotiation includes:
Online conciliation
Conciliation is an informal procedure in which a neutral intermediary /
third party, who is the conciliator, assists and facilitates parties to a case
in resolving their case through dialogue and communication to reach a
settlement. At the option of the parties, the conciliator may also
make recommendations for determining certain
terms of settlement. (Depending on parties’
choice, if the parties has failed to reach a settlement, conciliation maybe preceded
or followed by arbitration or mediation).
Online Mediation
Mediation is a process in
which the parties to a case, utilise the assistance of a neutral dispute
resolution practitioner (the mediator / facilitator), to collaboratively negotiate the outcome.
The facilitator has no advisory or determinative role on the content of the
matters discussed or the outcome of the process. Have the duty to assist the
parties in reaching a settlement. The mediator shall assist the parties in an
independent, neutral and impartial manner in their attempt to reach an amicable settlement of their dispute.
18. (1) The mediator shall attempt to facilitate voluntary resolution of the dispute by the
parties and communicate the view of each party to the other to the extent
agreed to by them, assist them in identifying issues, reducing misunderstandings, clarifying priorities, and reach a settlement.
Online Arbitration
Arbitration is a process
where the parties
submit to resolving a case through
adjudication and determination by one or more impartial and skilled arbitrators who make a final and binding decision on the dispute.
With respect to legal recognition of ODR services,
A&C is governed by A&C Act, 1996 where electronic means of
communication is newly recognised under Amendment Act, 2015. Mediation is
governed by Mediation Act, 2023 which also includes online mediation as per
sec. 32 of the act.
Sec 7 - “arbitration agreement” means an agreement by the parties to
submit to arbitration all or certain disputes which have arisen or which may
arise between them in respect of a defined legal relationship, whether
contractual or not. (2) An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement. (3) An
arbitration agreement shall be in writing. (4) An arbitration agreement is in
writing if it is contained in— (a) a document signed by the parties; (b) an
exchange of letters, telex, telegrams or other means of telecommunication
[including communication through electronic means] A&C Act, 2015.
Once, the parties mutually agree
to enter the negotiation, they should
choose the suitable ODR service
provider. In some situations, the ODR Provider is chosen for the parties
depending on the nature of their dispute
(i.e. C2C disputants regarding an E-bay
transaction are encouraged to use the E-bay ODR Process; Where the parties have
not identified an ODR Provider in a contract, or where it is not clear which
ODR Provider should be used, the parties can choose an ODR Provider. Once they
choose the suitable ODR service provider, the procedure to initiate their
negotiation will be provided on their website.
There is no rigid format to be
followed for ODR as the rules of the process
depend on the ODR Service Provider.
Once they start to further proceed for negotiation, party
has to communicate it with the ODR service provider. Generally, it includes an
asynchronous communication through e-mails or chatrooms.
The parties to the arbitration agreement, while agreeing for resolution
of dispute by fast track procedure,
may agree that the arbitral tribunal
shall consist of a sole
arbitrator who shall be chosen by the parties. (3) The arbitral tribunal shall
follow the following procedure while conducting arbitration proceedings under
sub-section (1):—
S.29B of the Act deals with fast track procedure. Submissions filed by
the parties without any oral hearing; (b) The arbitral tribunal shall have
power to call for any further
information or clarification from the parties in addition to the pleadings and
documents filed by them; (c) An
oral hearing may be held only, if, all the parties make a request or if the arbitral tribunal
considers it necessary to have oral hearing
for clarifying certain issues; (d)
The arbitral tribunal may dispense
with any technical formalities,
if an oral hearing is held, and adopt
such procedure as deemed appropriate for expeditious disposal of the case. (4)
The award under this section shall be made within a period of six months from
the date the arbitral tribunal enters upon the reference. (5) If the award is not made within the period specified in sub-section (4), the provisions of subsections (3) to (9) of section 29A shall
apply to the proceedings. (6) The fees payable to the arbitrator and the manner of payment of the fees shall be
such as may be agreed between the arbitrator and the parties.
In
the absence of fast track procedure, arbitral tribunal to hold oral hearings
for the presentation of evidence or for oral argument. As per S.26
the arbitral tribunal may— (a) appoint one or more experts to report to it on specific issues
to be determined by the
arbitral tribunal, and (b) require a
party to give the expert any relevant information or to produce, or to provide access to, any
relevant documents, goods or other property for his inspection.
The
mediation proceedings with respect to a particular dispute shall be deemed to
have commenced— (a) where there is an existing agreement between the parties to
settle the dispute through mediation, the day on which a party issues notice to
the other party or parties for mediation and settlement of their disputes; or
(b) in other cases— (i) on the day the
parties have agreed to appoint a mediator of their choice for mediation and
settlement of disputes between
them; or (ii) on the day when one of the parties
applies to a mediation service
provider for settlement of disputes through mediation by appointment of a
mediator. The mediator shall assist the parties in an independent, neutral and
impartial manner in their attempt to reach an amicable settlement of their dispute.
i.e., the mediator shall assist
the parties in an independent and neutral manner in
their attempt to reach an amicable settlement of their dispute.
The
mediator shall attempt to facilitate voluntary
resolution of the dispute by the
parties and communicate the view of each party to the other to the extent
agreed to by them, assist them in identifying issues, reducing
misunderstandings, clarifying priorities, Replacement of mediator. Role of
mediator is to explore areas of compromise and generating options in an attempt
to resolve the dispute expeditiously, emphasising that it is the responsibility
of the parties to take decision regarding their claims. The parties shall be
informed expressly by the mediator that he only facilitates in arriving at a
decision to resolve a dispute and that he may not impose any settlement nor
give any assurance that the mediation may result in a settlement. , mediation
under this Act shall be completed within a period of one hundred and eighty days
from the date fixed for the first
appearance before the mediator. No audio or video recording of the mediation
proceedings shall be made or maintained by the parties
or the participants including the
mediator and mediation service provider, whether conducted in person or online
to ensure confidentiality of the conduct of mediation proceedings.[14]
Settlement
Agreement and Conciliators Award.
When the Parties reach and sign the settlement agreement, it shall be
final and binding on the Parties in
the manner of a valid binding contract. The conciliator shall authenticate the settlement agreement and
furnish a copy thereof to each of the Parties. The settlement agreement shall
have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered
by an arbitrator under section 30 of the Arbitration and Conciliation Act,
1996.[15]
Conclusion, Suspension and Termination.
i)
by
the signing of a settlement agreement by the parties covering any
or all of the issues in dispute
between the parties;
ii)
by the option of the conciliator
if, further efforts at conciliation are
unlikely to lead to a resolution of
the dispute; or
iii)
by
a written declaration of a party at any time after a first discussion of the
parties with the conciliation.
Upon the conclusion of the conciliation,
the conciliator shall promptly send to the CM a notice in writing that the
conciliation is terminated and shall indicate the date on which it has concluded,
whether or not the conciliation resulted in a settlement of the dispute and, if
so, whether the settlement was full or partial. The conciliator shall inform
the parties regarding such a requirement and reinforce the confidentiality
terms.
Settlement Agreement and Mediators Award.
When the Parties reach and sign the
settlement agreement, it shall be final and binding on the Parties in the
manner of a valid binding contract.
At the request of the Parties, the
settlement agreement can be
converted into a conciliators award and/or an arbitral award under the relevant provisions of the
Arbitration and Conciliation Act, 1996.[17]
Conclusion, Suspension and Termination.
i) by the signing of a settlement agreement by the
parties covering any or
all of the issues in dispute
between the parties;
ii) by
the option of the
mediator if, further efforts at mediation are unlikely to lead to a resolution of the dispute;
or
iii)
by
a written declaration of a party at any time after a first discussion of the
parties with the mediation.
iv)
Upon the conclusion of the mediation, the mediator shall promptly send to
the CM a notice in writing that the mediation is terminated and shall indicate
the date on which it has concluded, whether or not the mediation resulted in a
settlement of the dispute and, if so, whether the settlement was full or
partial. The mediator shall inform the parties regarding such a requirement and
reinforce the confidentiality terms.[19]
Settlement and Arbitral
Awards.
The arbitral award shall state the
reasons upon which it is based, unless the parties have agreed that no reasons
are to be given, or the award is an arbitral award on agreed and settled terms
as per the Mediation Rules or the Conciliation Rules. If, during arbitral
proceedings, the parties settle the dispute, in terms of Conciliation Rules, the arbitrator shall terminate the proceedings and, if requested by the parties and not
objected to by the arbitrator, record the settlement in
the form of an arbitral award on agreed terms. The arbitrator shall deposit the
original award, together with record of the arbitration proceedings,
authorising it to cause the award to be filed in the Court of competent
jurisdiction when required. An arbitral award shall be made in writing and
shall be signed by the members of the arbitrator. The arbitral award shall
state the date and the place of arbitration. After the arbitral award is made,
a signed copy thereof shall be delivered to each party. In arbitral proceedings
with more than one arbitrator, the signatures of the majority of all the
members of the arbitrator shall be sufficient so long as the reason for any
omitted signature is stated. The law applicable to the arbitration shall be the
arbitration law of the place of arbitration, unless the parties have expressly
agreed on the application of another arbitration law and such agreement is
permitted by the law of the place of arbitration.[20]
Conclusion, Suspension and
Termination.
The arbitral proceedings shall stand
terminated on making of the final arbitral award or by an order of the
arbitrator under sub-rule (2). During the pendency of arbitral proceedings with
Sama, no Party shall approach the Court for any interim measures or evidence
taking under Section(s) 9 or 27 of the Arbitration and Conciliation Act, 1996.
Enforcement- Parties may be required to comply with the execution requirements
under the Arbitration and
Conciliation Act, 1996 to enforce the arbitral award.
The time period for enforcement is 90 days from the date on which the award was
passed. Once an enforcement application has been made and an order has been passed,
parties are required to inform
Sama in relation to the execution application/ compliance with the award.[21]
3. THE ROLE OF ODR NEUTRAL
Depending on the nature of the ODR process, the Neutral may:
·
Permit
the parties with or without counsel to present their positions regarding
the dispute;
·
Help and direct
parties to search for common ground
and narrow the scope of the
dispute;
·
Assess the relative strengths and weaknesses of the parties' positions, explaining the reasons of his or her assessment
and estimate, where possible, the
likelihood of liability and the verdict range of damages;
·
Suggest and help the parties explore
the possibility of a settlement.
Agami
Sign up and tell us a
little about your dispute. We'll then invite the other party to join and appoint a qualified conciliator to
help you reach an agreement. signed up, you'll be able to make settlement
offers and counter-offers. We also have a chat room where you can discuss potential settlement terms. Our
conciliator would even suggest creative solutions likely to result in an agreement
based on how disputes like
yours have resolved for other people. Once you come to an agreement, the conciliator will draft the
settlement agreement and send it to both parties.
The arbitral award so passed as a result of the agreement between the
parties are fully binding and enforceable.[22]
Smartsettle
iCan Systems Inc. is the maker of Smartsettle, the world’s only secure
eNegotiation system using patented
optimization algorithms to achieve fair and efficient
solutions that are truly Beyond
Win-Win.[23]
Facilitates
both assisted and automated negotiation. Smartsettle one resolve financial
negotiations easily and quickly online. is the world’s most elegant and
intelligent negotiation app for two-party formal negotiations that can easily
be reduced to a single numerical issue. Five sophisticated algorithms,
including Visual Blind Bidding and Reward Early Effort motivate the parties to
collaborate and virtually negotiate the settlement offers.[24]
Cybersettle
Platform that provides financial negotiation and settlement. Have
patented double blind process. Ensuring complete confidentiality, neither party
sees the other party's offer or demands. Secure, confidential and AI-enriched
settlement of monetary negotiations between parties.
Modria
Online Dispute Resolution Centre for American Arbitration Association. Modria platform is advanced
software that helps parties reach agreement online.[25]
Sama
Founded in 2015. Government
recognised ODR service platform.
Facilitates all methods of assisted negotiation. This
initiative is a collaborative effort of industry players and impact sector
leaders such as Agami, Ashoka, Omidyar network, Trilegal, Vahura and more who
selected ODRways (now Sama), a mediation services platform founded in 2015.[26]
Webnyay
This
is an innovative and technologically advanced service that seeks to resolve
B2B, B2C and C2C complaints, conflicts and disputes. It is a one-stop shop for
enterprises looking to resolve civil and commercial disputes (including consumer
complaints) and grievances from employees, suppliers and distributors.
We
work with experienced professionals (which includes former judges, ombudsmen,
senior advocates, queen's counsel, lawyers and domain experts) that act as
neutrals on the disputes. We use Artificial Intelligence in our legal and
automation processes to ensure that disputes are resolved efficiently and
inexpensively.
Yessettle
India’s First Online Disputes Settlement Platform. This platform enables
the user to initiate the process to resolve any dispute with any other party
anywhere in the world and the Platform further
helps the users with its support
in resolving the disputes through online assisted negotiation.
YesSettle is a venture of YesSettle Legal Services LLP backed by a team of
Legal Experts from different fields in society i.e. Lawyers, Retired Judges,
Chartered Accountants, Social Workers, Retired Sr. Government Officials and
Retired Sr. Bank Officials et al.[27]
Square Trade
One of the leading ODR providers for consumer mediation was until
recently. SquareTrade first partnered with the
world’s largest online marketplace, eBay, to handle disputes between buyers and
sellers around the world and it operated successfully for a number of years and
created a model that furthered the development of ODR. The SquareTrade process
started when a buyer or a seller filed a complaint.
These are the various online dispute resolution platforms which provides
a virtual space for parties to
resolve the resulting online or offline disputes.
5. CHALLENGES OF ODR
The concept of Online Dispute Resolution(ODR) in India is at a nascent
stage. In order to create an effective implementation framework for Online
Dispute Resolution (ODR) in India, the NITI Aayog had constituted a high level
committee in June 2020under the chairmanship of Justice A K Sikri, Retired Judge, Supreme Court of India. The report of the committee titled “Designing the future of dispute
Resolution: the ODR Policy Plan for India” was released on 29.11.2021. The report recommends measures at three levels to tackle challenges in
adopting ODR framework in India.
i) At the
structural level, it suggests actions to increase digital literacy, improve
access to digital infrastructure and train professionals as neutrals to deliver
ODR services.
ii) At the
behavioural level, the report recommends adoption of ODR to address disputes
involving Government departments and ministries.
iii) At the
regulatory level, the report recommends a soft-touch approach to regulate ODR
platforms and services. This involves laying down design and ethical principles
to guide ODR service providers to self-regulate while fostering growth and
innovations in the ecosystem.
The report also stresses on strengthening
the existing legislative framework for ODR by introducing necessary amendments
to statutes. The report offers a phased implementation framework for ODR in
India.
The COVID-19 pandemic has brought a renewed focus on ODR in India, with an aim to resolve Covid-related disputes
primarily related to lending, credit, property, commerce, and retail sectors.
This is seen as an important part of the economic revival strategy.
Acknowledging the importance of online dispute resolution, it has been proposed
to provide for online mediation under the Mediation Bill, 2021 which was passed
in the Rajya Sabha on August 1, 2023 and passed in the Lok Sabha on August 7,
2023. The Act finally received
presidential assent on September 14, 2023 and has come into force on 15
September, 2023. In India efficient working of
ODR is at its infant stage. Besides this, there are various common
challenges to ODR:[28]
v Digital
literacy – to resolve disputes online and to use those odr platforms requires a
basic level of digital literacy as a prerequisite. In India, digital literacy
often varies across age, ethnicity and geography. This digital divide needs to
be addressed to ensure that ODR is adopted by society at large and not remain
limited to urban areas.
v Lack of
trust in ODR services – A lot of people in the country do not trust the
emerging technology which is a major challenge for the people of India. The
people do not have complete trust in the privacy of their information provided
during negotiation and the extent of confidentiality that can interfere the services.
v Confidentiality
- The internet being an open, public network, communications per email or
communications via a website platform may be less secure than mail, fax or
telephone. There is a risk that unauthorised persons could intercept
communications transmitted over the internet and hackers may break into
computers connected to the Internet from a trusted computer base, i.e. a computer
base secure from attacks. Inadequate internet security has been a major
deterrent in the growth of e-commerce and may also have a direct bearing on the
use of online ADR
v Limited
Range of Disputes: This disadvantage is peculiar to the type of cyber-
mediation chosen. For example, fully automated cyber-mediation can only be used
to resolve specific types of disputes and, even then, can only handle disputes
where the amount of the settlement is the only unresolved issue. In fact, for
fully automated cyber-mediation to work properly, it would seem that the
parties would need to have undertaken initial discussions, agreed to the basic
facts surrounding the dispute and have determined that one of the parties is
responsible for damages. The parties would then need to have agreed to limit
further discussions to the single issue of an appropriate amount of monetary
compensation. This then limits the final stage of negotiations to determining a
dollar figure for compensation leaving out the possibility for innovative,
interest-oriented, out-of-the-box negotiating that is the hallmark of many
successful negotiations.
v Language
barrier - there is an urgent necessity to develop software’s that will make a
significant progress in the translation of all texts into preferred languages
that can be understood by the parties. English language will be the medium of
negotiation. The mediation process shall be conducted in English. At the option
of the mediator and/or with the mutual consent of all Parties to the mediation
process, a translator maybe appointed as an expert to assist in the mediation
process. The Parties shall bear equal costs of appointing an expert translator.
v Asynchronous
communication
v Besides
these challenges, ODR has its own advantages as it offers convenience to the
parties where the parties can negotiate and resolve the dispute from anywhere
in the world. It reduces their cost of travel and gets speedy justice than ADR.
Its cost effective and time saving.
6. CONCLUSION
The exploration of methods of online dispute resolution (ODR) and its
associated challenges sheds light on the evolving landscape of conflict
resolution in the digital era. The
multifaceted nature of ODR, encompassing diverse mechanisms such as negotiation, mediation, and arbitration
conducted through online platforms, underscores its potential to provide accessible and efficient
solutions to disputes arising in the
virtual realm. However, as with any innovative approach, challenges persist,
ranging from issues of trust and privacy to the need for standardized
procedures and enforcement mechanisms. The significance of ODR lies
not only in its
ability to streamline resolution
processes but also in its capacity to adapt to the dynamic nature of online
interactions. The ongoing advancements in technology and the increasing
reliance on digital platforms for transactions necessitate continuous
refinement and adaptation of ODR methods. As stakeholders navigate the intricacies of ODR implementation, it becomes imperative to address issues
related to jurisdiction, cross-border disputes, and the establishment of a
robust legal framework. While challenges may pose obstacles, they also present
opportunities for collaboration between legal professionals, technology
experts, and policymakers to develop comprehensive solutions. The success of
ODR hinges on a collective effort to establish a harmonious balance between
technological innovation and legal principles. As we navigate the complexities
of the digital age, embracing the potential of ODR while mitigating its
challenges will undoubtedly contribute to a more accessible, efficient, and equitable
system of dispute resolution in the online sphere.
REFERENCES
Ø Sama- Space for resolution, available at: https://www.sama.live/ (last visited on 4th
October, 2023).
Ø Agami ODR, available
at: https://www.disputeresolution.online/ (last visited on 4th
October, 2023).
Ø American Arbitration Association, available at: https://aaa-nynf.modria.com/ (last visited on 4th October, 2023).
Ø Smartsettle Beyond Win-Win, available at: https://www.smartsettle.com/ (last visited on 4th
October, 2023).
Ø Yessettle- We made settlement easy, available
at: https://www.yessettle.com/ (last visited on 4th October, 2023).
Ø Resolve Complaints and Disputes
Outside Court, available at:
Ø Zainab Zaya Khan, “Online
Dispute Resolution- Opportunities Issues &
Challenges” SSRN 3,4 (2020).
Ø What should the ideal ODR system for e-commerce consumers look like? The Hidden World of Consumer ADR: Redress
and Behaviour, available at: https://www.law.ox.ac.uk/sites/default/files/migrated/dr_pablo_cortes.pdf (last visited on 5th October,
2023).
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drawbacks, available at: https://www.mbie.govt.nz/assets/00ddebf604/online-dispute-resolution-report- 2018.pdf (last
visited on 5th October, 2023).
[1] What should the ideal ODR system for
e-commerce consumers look like? The Hidden World of Consumer ADR: Redress and
Behaviour, available at: https://www.law.ox.ac.uk/sites/default/files/migrated/dr_pablo_cortes.pdf
(last visited on 5th October, 2023).
[2] Ibid n:1
[3] Kweku AttakoraDwomoh,Online Dispute Resolution, https://www.linkedin.com/pulse/online-dispute-
resolution-kweku-attakora-dwomoh/
[4] Smartsettle Beyond Win-Win, available at: https://www.smartsettle.com/ (last
visited on 4th October, 2023).
[5] What should the ideal ODR system for e-commerce consumers
look like? The Hidden World of Consumer ADR: Redress and Behaviour, available
at: https://www.law.ox.ac.uk/sites/default/files/migrated/dr_pablo_cortes.pdf
(last visited on 5th October, 2023).
[6] N. R. Jennings, P. Faratin, A. R. Lomuscio, S. Parsons
& M. Wooldridge, “Automated Negotiation: Prospects, Methods and
Challenges”1SPRINKER(1992).
[7] Ibid n.5
[8] Ibid n.5
[9] Ibid n.5
[10] Ibid n.5
[11] Ibid n.5
[12] Ibid n.5
[13] The process of assisted negotiation: A network analysis,
Kathleen L. Valley, Sally Blount White & Dawn Laccobucci, Springer Link,
1992 vol.1, pg 117-135.
[14] Agami ODR, available at: https://www.disputeresolution.online/
(last visited on 4th October, 2023).
[15] Ibid n.6
[16] Ibid n.6
[17] Ibid n.6
[18] Ibid n.6
[19] Ibid n.6
[20] Ibid n.6
[21] Ibid n.6
[22] Agami ODR, available at: https://www.disputeresolution.online/
(last visited on 4th October, 2023).
[23] Smartsettle Beyond Win-Win, available
at: https://www.smartsettle.com/ (last
visited on 4th October, 2023).
[24] Ibid n.2
[25] American Arbitration Association, available
at: https://aaa-nynf.modria.com/ (last
visited on 4th October, 2023).
[26] Sama- Space for resolution, available at: https://www.sama.live/ (last
visited on 4th October, 2023).
[27] Yessettle- We made settlement easy, available at: https://www.yessettle.com/ (last
visited on 4th October, 2023).
[28] Zainab Zaya Khan, “Online Dispute Resolution- Opportunities
Issues & Challenges”
SSRN
3,4 (2020).
Article Information
METHODS AND CHALLENGES OF ONLINE DISPUTE RESOLUTION
Authors: AMALA I.M
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/09
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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