The COVID-19 pandemic and the resulting need for social distancing measures have exacerbated the existing problem of backlogs in the Indian judicial system. There is a growing understanding that the best path forward is to use technology to transform the dispute resolution ecosystem to adapt to the changing demands of justice.

The JALDI (Justice, Access and Lowering Delays in India) Initiative at the Vidhi Centre for Legal Policy has released a new paper titled ‘ODR: The Future of Dispute Resolution in India’ which argues that the future of dispute resolution lies in mainstreaming Online Dispute Resolution (ODR) in India. It also suggests strengthening alternate dispute resolution (ADR) mechanisms in the country as a prerequisite for a robust ODR framework. Further, the paper recommends a phased modular strategy for strengthening ADR and mainstreaming ODR in India.

From the overview:

“In this paper, the broad features of ODR are discussed along with an examination of the present framework and its suitability for ODR. Also mapped are the prerequisites for mainstreaming both court annexed and private ODR in India. The paper also delves into an overview of the principles framework which any ODR platform should satisfy to gain and maintain trust in the system.”

You can read the paper here:
https://vidhilegalpolicy.in/research/the-future-of-dispute-resolution-in-india/

A Panel Discussion and Book Launch Celebration honoring Dispute Systems Design: Preventing, Managing, and Resolving Conflict (2020) was hosted by the National Center for Technology and Dispute Resolution on July 29, 2020 featuring co-authors Lisa Blomgen Amsler, (Indiana University), Janet K. Martinez, (Stanford University), and Stephanie E. Smith, (Stanford University) and panelists Carrie Menkel-Meadow, (UC Irvine & Georgetown University), Larry Susskind, (Massachusetts Institute of Technology), Ayelet Sela, (Bar Ilan University) and Colin Rule, (Mediate.com). Hosts included Leah Wing, Co-director, (National Center for Technology and Dispute Resolution (NCTDR) and U. of MA Amherst), Orna Rabinovich, (NCTDR Fellow and U. of Haifa), and Ethan Katsh (Director, NCTDR). You can watch the engagement with these leading ADR and ODR thought leaders here:

Thought provoking article from mediator Frank Burke:

“Most civil and commercial private mediators and ADR providers offer their clients a binary choice between a half day mediation and a full day mediation as a standard offering, often on a flat rate with one or two hours of prep time, a preliminary call with counsel and open ended follow up as part of the flat fee. Most such mediations are convened and organized to have all the parties and counsel arrive at the same time. Since the onset of the pandemic and the various shut down orders, the use of online dispute resolution has increased exponentially, usually conducted through videoconferencing using Zoom and similar platforms. 

This broad use of videoconferencing around the world has lead to a phenomenon referred to as Zoom fatigue (see https://ideas.ted.com/zoom-fatigue-is-real-heres-why-video-calls-are-so-draining/). Psychologists attribute this fatigue to the higher levels of concentration caused by staring at a computer screen for long periods, often looking at multiple images of participants on the screen, leading to eye strain and sensory overload. All of this is exacerbated in mediation, given the emotions caused by conflict and the high levels of interactivity between the mediator and the parties as they move through trust building into often difficult conversations to bridge the gaps between parties. Given the medium, mediators must also be thinking about eye contact and reading facial expressions, which is second nature in a face to face conversation but which takes effort in a videoconference. Exhausted mediators and parties cannot do their best work. Good, durable settlements and settlement agreements require careful attention…”

Read more: https://www.mediate.com/articles/Burke_Shorter_Sessions.cfm

Taylor Worsham, writing on July 9, 2020 in The Sault News:

‘The Michigan Supreme Court Office of Dispute Resolution recently announced the availability of its completely free MI-Resolve online dispute resolution tool in Chippewa, Luce and Mackinac counties.

MI-Resolve provides an efficient and accessible way of resolving disputes that are typically filed as small claims, general civil or landlord-tenant cases in the district court. Michigan is the first state to have an online dispute resolution system for every citizen in the state.

“Keeping the virtual doors of justice open to everyone in Michigan has never been more important,” said Chief Justice Bridget M. McCormack. “Confronting the COVID-19 crisis makes closing the justice gap all the more urgent. Opening up online dispute resolution to Chippewa, Luce, and Mackinac county residents represents a huge step toward achieving that goal.”’

Read more here

During the global COVID-19 pandemic, and at a time when social distancing is required to save lives, technology has been vital to human connection. This turn in society has forced even the most reluctant practitioners and overburdened institutions to rely on technology to assist in the handling of disputes. Suddenly, online dispute resolution is at the forefront of conversations about providing access to justice and repair of human relationships from courts to alternative dispute resolution. The National Center for Technology and Dispute Resolution, birthplace of online dispute resolution over twenty years ago, is enthusiastic about this upsurge in its use. And as we stand in solidarity against state brutality, we think it now more important than ever for all of us to work for racial equality and all forms of human rights, further innovating the use of technology in the name of access to justice for all.

Over last weekend there was a very high level meeting of leaders in the justice sector to discuss the future of ODR in India, convened by Agami and Omidyar Network. From the press release on the meeting:

“In a first, NITI Aayog, in association with Agami and Omidyar Network India, brought together key stakeholders in a virtual meeting on 6 June 2020 for advancing online dispute resolution in India.

ODR is the resolution of disputes, particularly small- and medium-value cases, using digital technology and techniques of alternate dispute resolution (ADR), such as negotiation, mediation, and arbitration. While courts are becoming digitized through the efforts of the judiciary, more effective, scalable, and collaborative mechanisms of containment and resolution are urgently needed. ODR can help resolve disputes efficiently and affordably.

Senior judges of the Supreme Court, secretaries from key government ministries, leaders of industry, legal experts, and general counsels of leading enterprises, explored the opportunities and specifics of what lies ahead.

The common theme was a multi-stakeholder agreement to work collaboratively to ensure efforts are taken to scale online dispute resolution in India.

In his welcome address, NITI Aayog CEO Amitabh Kant said, ‘This historic meeting is the start of a collaborative exercise that sets into motion the use of technology towards efficient and affordable access to justice in our post-pandemic response.’

Justice DY Chandrachud, speaking on technology and access to justice, remarked, ‘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.’

Stressing on the need of ODR during the ongoing Covid-19 pandemic, Justice Sanjay Kishan Kaul said, ‘Let us target Covid-related disputes first [through ODR] because those are people who would like for their disputes to be resolved quickly, particularly in this context. This is an important part of economic revival.’

Justice Indu Malhotra spoke of the nuanced specifics that could be considered for scaling ODR. ‘Making ODR or ADR voluntary may defeat the purpose. It should be made mandatory [for specified categories], and it should cover about three [sessions] so that parties don’t feel that it’s a mere formality.’

Justice (Retd) A.K. Sikri brought forth the advantages of ODR—convenient, accurate, time-saving, and cost-saving.

Anoop Kumar Mendiratta, Law Secretary, Government of India, articulated that, ‘Private ODR and ADR providers need to be complemented to ensure that online resolution can reach different industries, locations, and parts of the country and also support the public institutions in a big way. The government is open-minded.’

Nandan Nilekani, Non-Executive Chairman of Infosys, gave his vision for justice delivery. ‘The future will be a hybrid model that combines the best of both worlds—offline courts, online courts and ODR. We will have to reimagine the whole process of justice delivery to work in the hybrid system and this will require good data…’”

Read more here:
https://pib.gov.in/PressReleasePage.aspx?PRID=1630080

Wow — there are some impressive stats!

May 2020 British Columbia Civil Resolution Tribunal Participant Satisfaction Survey results are up at https://civilresolutionbc.ca/participant-satisfaction-survey-may-2020/… — some of the highlights:

100% felt the CRT treated them fairly

96% felt CRT staff were professional

92% felt their CRT dispute was handled in a timely manner

94% would recommend the CRT

Well done, Shannon and team! You can view the full report at
https://civilresolutionbc.ca/participant-satisfaction-survey-may-2020/

Larry Axelrood in the Chicago Daily Law Bulletin:

“…Regardless of how life unfolds post-COVID-19, remote working will be a significant part of lawyers’ professional lives. Whereas in-person mediations have traditionally been the most effective, remote mediations are now a solidly viable option. Most likely, a blend of live and remote participation will become more common. As expected, lawyers have found a way to continue to advocate and fight for their clients, and mediators are ready to facilitate and expedite that process.”

Read more:
https://www.chicagolawbulletin.com/axelrood-kitchen-table-mediation-6-2-20-20200602?MvBriefArticleId=2983

Excerpt from a new article from Rachael Bicknell for the law Law Society of Scotland Journal:

“ODR combines ADR processes, technology and impartial independent experts. It is recognised internationally as a specialised and highly effective form of ADR. Its origins date back to the 1990s when it was created to resolve disputes resulting from online transactions and interactions between parties in different jurisdictions. In 2013, Lord Neuberger, then President of the Supreme Court, said in a speech on Judges and Policy: “We may well have something to learn from online dispute resolution on eBay and elsewhere.” The eBay Resolution Center now handles over 60 million disputes each year, while courts have been slow to adopt online or hearing-free models.

All methods of exploring the resolution of a dispute with the assistance of technology are ODR. It can involve advanced technologies and processes such as machine learning, artificial intelligence and cognitive computing which are being developed and promoted to resolve specific types of disputes. More importantly for the practice of law, it is the movement online of face-to-face mediation, arbitration and other resolution processes, using videoconferencing combined with secure onboarding, e-signing of agreements, document sharing and online communication, to deliver fair, proportionate and effective redress for commercial and civil disputes.”

Read the full article here:
https://www.lawscot.org.uk/members/journal/issues/vol-65-issue-05/odr-the-next-leap-forward/

From the announcement page on Hong Kong’s new ODR program for low value disputes:

“In view of the severe economic repercussions caused by the COVID-19 pandemic globally and locally, the Government announced another package of measures to support the affected individuals and businesses last Wednesday. Two of which are particularly relevant to the legal and dispute resolution sector – LawTech Fund and COVID-19 Online Dispute Resolution (ODR) Scheme. The LawTech Fund was briefly introduced in this blog a few days ago (https://www.doj.gov.hk/eng/public/blog/20200411_blog1.html). Today, I would like to give an outline of the COVID-19 ODR.

In anticipation of an upsurge of disputes arising from or relating to COVID-19, the Scheme aims to provide speedy and cost-effective means to resolve such disputes, especially for those involving micro, small and medium-sized enterprises (MSMEs) that may be adversely affected or hard hit by the pandemic. The Scheme will engage eBRAM to provide ODR services to the general public and businesses, in particular MSMEs, involved in low value disputes…

It is a global trend to develop and use ODR to provide reliable and efficient platform to facilitate alternative dispute resolution. The Scheme is in line with the development under Asia-Pacific Economic Cooperation’s Collaborative Framework on ODR (APEC Framework), with MSMEs as the major beneficiary. The mechanism of adopting negotiation and mediation in the first stage under the APEC Framework is also to prevent entrenched views on the conflicts, thereby helping to create harmony in society.”

Read more:
https://www.doj.gov.hk/eng/public/blog/20200413_blog1.html