Updated: Aug 15, 2020
This article has been authored by Nirvani Bhavsar, a second year student at NALSAR, Hydrebad
Introduction There are many kinds of disputes in this world like family disputes, commercial disputes, international disputes, civil disputes, etc. Approaching the court is one way of resolving them but the courts are already overburdened with the myriad of disputes pending before them. The best and the most amicable alternative seems to be Alternate Dispute Resolution (ADR). There are various modes of dispute resolution in ADR such as mediation, negotiation, arbitration, conciliation and Lok Adalat.
The concept of Online Dispute Resolution is not new. In 2010, a report by the United Nations Commission on International Trade Law discussed possible future work on online dispute resolution in cross-border electronic commerce transactions. But now, due to COVID-19 people are forced to stay at home, maintain social distance and follow safety protocols because of this the discussion regarding Online Dispute Resolution has taken a whole new turn. Previously online interactions used to happen because of special circumstances but now due to COVID-19 they have become the new inevitable reality.
Benefits of ADR during the times of covid-19
With the withdrawal of lockdown, cases related to COVID-19 such as tenancy and employment issues will be flooding in the already overburdened courtrooms. Although courts have turned towards virtual mode of hearings but that is limited to urgent cases and after that the already pending cases will be prioritized. In commerce, time is usually of the essence and one can’t wait long for resolution of disputes. For the plaintiff, it means dollars. For the carrier, it means closure. For both, it means reducing expenses, thereby maximizing a recovery and profits. Hence, ADR seems to be a better and quicker alternative during this time.
ADR provides a great deal of flexibility in choosing the modes of hearing. One of its novel features is that it allows hearings to be conducted through the medium of video-conferencing which is now not an option but the only means due to travel-restrictions and lockdowns. During International Commercial Arbitration, virtual proceedings such as videoconferencing are already an established norm so for domestic arbitrations to adopt the same method wouldn't be much difficult.
Though the idea of video-conferencing isn’t explicitly mentioned in the Arbitration & Conciliation Act, 1996 but Section 19 allows the Arbitral Tribunal to “conduct the proceedings in the manner it considers appropriate” and empowers the Arbitral Tribunal to direct the parties to file pleadings through e-mail and conduct proceedings through the means of video conferences aiding social distancing with minimal loss of productivity. The Indian Council of Arbitration (ICA) also recommends, arbitral tribunal to conduct arbitration proceedings through the means of video conferencing.
Another benefit could be parties having the liberty to choose an arbitrator who is familiar and comfortable with the new technology, something which might be a little challenging and new for courts. Also, as it is possible in ADR to reach an amicable solution which is beneficial for both the parties. In commercial disputes this is highly desirable.
Today, health and safety are the top priorities. Approaching the court even if the lockdowns are lifted involves a great deal of risk as it involves coming into direct contact with a lot of people. ADR through virtual means provides people the option to stay in the safety of their homes and participate in hearings. Initiatives to promote ADR in the national and international arena
Recently, Ministry of Justice of the People’s Republic of China issued Guidelines for public legal services for epidemic prevention and control and the resumption of work and production of enterprises in which it actively promoted the set-up of an internet arbitration system to help its economy move into the right direction and cope with the deleterious effects of COVID-19.
The UK Government issued Guidance on responsible contractual behavior in the performance and enforcement of contracts impacted by the Covid-19 emergency stating that the government would strongly encourage parties to resolve contractual disputes through mediation, negotiation or other alternative or fast-track dispute resolution.
Various International institutions have also issued guidelines to conduct ADR through virtual means. The Secretariat of the ICC International Court of Arbitration and ICC International Centre for ADR have issued guidelines namely ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic to reduce the effects of COVID-19 on arbitration proceedings. They have decided to continue with the pending arbitrations proceedings and are also accepting new ones. Further, the guidelines in their Annex I and Annex II include “Checklist for a protocol to the parties and arbitrators on conducting virtual hearings” and “Suggested Clauses for Cyber-Protocols and Procedural Orders Dealing with the Organisation of Virtual Hearings” respectively which are being used for address technical issues and ensure confidentiality and security during virtual hearings.
If the government of India also comes up with a similar set of guidelines it would be very beneficial for people and would encourage them to opt for ADR during this time of a world pandemic. Further, it would also reduce strain on the courts to deal with a plethora of disputes.
Recently NITI Aayog in a press release titled Catalyzing Online Dispute Resolution (ODR) in India which described the virtual meeting which brought together senior judges of the Supreme Court, secretaries from key government ministries, leaders of industry, legal experts, and general counsels of leading enterprises to discuss and explore the opportunities related to Online Dispute Resolution Systems in India. The meeting was held with the theme “a multi-stakeholder agreement to work collaboratively to ensure efforts are taken to scale online dispute resolution in India” in which they discussed key issues related to ODR and ways to promote it in the near future. Online Lok Adalats
NALSA along with other Legal Services Institutions conducts Lok Adalats. Lok Adalats are a form of ADR mechanism to resolve disputes through settlement and compromise. In Lok Adalats the persons deciding the cases are called the Members of the Lok Adalats and their role is similar to that of a statutory conciliator. They are limited to resolving disputes which are compoundable in nature. One of the greatest benefits of Lok Adalats is that it requires no court fee, making it more accessible. Various states are organizing online Lok Adalats during the times of COVID-19 to prevent a backlog of cases.
Section 22(2) of the Legal Services Authorities Act, 1987 empowers the Lok Adalats to determine its own procedure for determining the disputes. Hence, making it possible for them to accommodate virtual methods.
Keeping in mind the impacts of COVID-19 and the Supreme Court’s direction to encourage technology in the Indian Justice System an Online Lok Adalat was organized by Rajasthan State Legal Services Authority (RSLSA) to deal with pending and pre-litigation matters. A similar initiative was taken by the Delhi State Legal Services Authority (DSLSA).
The repercussions of COVID-19 are going to be long-lasting and even after the return of normalcy they are going to affect our judicial institutions for a long time. The swift change to technology is here to stay and the legal system will have to accommodate it eventually. But even this pandemic can be considered an opportunity to make the best out of the worst and can be considered an opportunity to shift to ADR which is capable of providing a swift, cost-effective and time-saving solution.