Union Law Minister Arjun Ram Meghwal didn’t exaggerate when he informed Parliament during the monsoon session that more than 5 crore cases were pending in various courts across India; the figure included cases in various tribunals too. New approaches such as case management hearings, digitisation, e-filings, virtual and hybrid hearings are reducing the pendency, but the results have not been great.

In India, litigation remains the ‘primary’ form of resolving disputes; Alternative Dispute Resolution (ADR) is an ‘alternate’ or secondary. Indeed, certain types of cases, especially including those involving criminal law, must be resolved only through courts. For most other types of disputes, ADR can be made the primary form of resolution.

The problem is that courts continue to be seen as the prime driver that places disputes for mediations to the centres annexed to them. Ad hoc arbitrations are assigned through appointments from its panel, mostly of past judges, to arbitration centres established by the courts. Consequently, institutional ADR is seen as a charitable activity rather than a service to disputing parties.

Mediation path

The game-changer is likely to be the Mediation Act and the Arbitration & Conciliation Act. Both recognise that Courts are not the sole justice dispenser; there is room for private institutional players too. In its interim report on the ‘Functioning of Virtual Courts’, the Parliamentary Standing Committee on Law studied various definitions of ‘court’. It came to the conclusion that ‘court is a service’.

A corollary to this idea must be that, making the delivery of service efficient would improve the functioning of courts. The services provided by courts and ADR centres can be divided into two types. The first is the adjudication. It must be in line with the laws of the land and with the principles of natural justice. The second, which is more critical to achieving efficiency and reducing pendency, relates to the management of dispute.

Within a court, these services include adoption of e-filing, use of case management tools, creating efficient rosters and timetables, and so on. For ADR centres, these include maintaining a panel of arbitrators and mediators, managing fees, registry services, scheduling meetings, etc.

Although ADR institutions in India are set up as court-supported charitable organisations, their administrative fees are high, and modus is bureaucratic. So only high-value commercial disputes of large enterprises come for arbitration. Individuals and MSMEs do not approach these institutions.

Online resolution

Service-focussed Online Dispute Resolution (ODR) platforms offer a solution to this. They use innovative technologies such as machine learning, conversational AI, natural language processing and blockchain. These institutions empanel the same arbitrators and mediators that are empanelled by courts and brick-and-mortar institutions.

With the backing of private investment that develop customised technologies, these ODR institutions are capable of taking ADR to individuals and small enterprises, and help resolve small-value disputes.

Already, private ODR entities are working with public ecosystems like Open Network for Digital Commerce and Account Aggregator. Market Infrastructure Institutions are utilising the services of such ODR institutions. Many High Courts and Legal Service Authorities are slowly beginning to refer disputes to them. Yet, there is a large volume of small-value claims, which the present court-annexed institutions are not prepared to touch with a bargepole. Those are waiting to be picked up by private players who can come up with innovation-oriented platforms.

Krishnamoorthy is the Founder of Madhyastham and a former Judge of the Punjab & Haryana High Court. Karakulam is the Senior Manager (Policy) at Presolv360, an ODR platform.

comment COMMENT NOW