The Covid-19 pandemic continues to challenge traditional services’ delivery, including access to justice and effective justice delivery. Given the worrying situation in terms of pendency and time taken for resolution of disputes, the pandemic has led to introspection and an immediate pivot to fast-tracking innovation led by technology.
The Supreme Court has been exemplary in adjusting and showing a progressive vision that is flexible. Efficient justice delivery will require the intervention of technology and a two-pronged approach towards dispute avoidance and dispute resolution. For the latter, the courts, through an online approach for now and eventually a hybrid blended approach of virtual and in-court hearings, are framing a roadmap. For the former, entailing low- and medium-value matters, online dispute resolution (ODR) could have a significant role in pre-empting disputes at the avoidance and containment stages.
The ability of the Supreme Court in adjusting to an online format has been nothing short of remarkable. The Supreme Court heard over 7,000 matters online, issuing more than 670 judgments through more than 620 Benches prior to its two-week recess. By comparison, the Supreme Court of the UK had taken up just 10 cases and pronounced 15 judgments, and the Supreme Court of Canada heard 173 cases, both in a similar time frame to our apex court’s. The Supreme Court also brought in e-filing and released comprehensive information modules on how best to on-board these developments.
For dispute avoidance and containment, ODR has the potential to be both transformative and disruptive in helping reduce matters coming up before the courts, as well as in resolution. Even before the pandemic, it was considered essential to resolve a large number of disputes collaboratively outside of courts to sustain trust between the parties. Effectively, we need collaborative mechanisms of resolution that do not require parties to approach courts.
ODR has the potential to help solve small and medium disputes at scale before they even come before the formal court processes. ODR traces its antecedents to leading practices from alternative dispute resolution (ADR), harmonising them with the latest technology. In today’s age of data-driven solutions and machine learning, ODR has the potential to be much more than just replicating existing processes of ADR online.
For e-commerce disputes, ODR has been able to resolve hundreds of millions of matters at the conflict level, led by eBay and PayPal. In the European Union, an ODR platform provided by the European Commission helps make online shopping transactions fairer and safer. The EU mandates all merchants in member countries to in fact inform consumers about the availability of ODR.
For the common man, ODR at the district level could be the ease of living nudge that ensures efficient and affordable access to justice, through remote processes. Similarly, ease of doing business could be stimulated through ODR mechanisms that ensure timely resolution in large numbers. Progressive and disruptive changes in justice delivery are vital cogs that can alter the course of access to justice in an unprecedented way. Recently, an e-Lok Adalat was live streamed in Chhattisgarh, hearing 3,000 matters over 200 Benches across districts in the State. Other courts, too, are said to be contemplating this integration of technology to make justice delivery more affordable and convenient.
Justice DY Chandrachud, who heads the Supreme Court’s e-Courts initiative, said at a closed-door meeting organised by the NITI Aayog in June: “Above all, there needs to be a fundamental change in the mindset — look upon dispute resolution not as relatable to a place, namely a court, where justice is “administered” but as a service that is availed of.” This sums up the approach to dispute resolution the post-pandemic era must entail.
Across the world, the pandemic has necessitated adjustments that are adaptive and innovative, including in the dispute resolution ecosystem. Several institutional arbitration centers across the world, including the Singapore International Arbitration Centre, released guidance to facilitate video-conferencing led remote participation in hearings.
India is leading the way in innovative justice delivery through initiatives led by the e-Courts project, whose impact will percolate both vertically and laterally. Given the extent of what is expected to be a major increase in claims and conflicts, ODR as a technology-led affordable solution is needed to help take matters outside the court. The combination of technology and data with negotiation, mediation and arbitration supported by all concerned stakeholders will enable this approach to avoiding, containing and resolving disputes. Through technology, positive intent and active implementation, ODR could be a vital cog in the bid to make life simpler for every person who seeks access to justice.
Kant is CEO and Sekhri is Officer on Special Duty, NITI Aayog. Views are personal