Dear Lawmakers: Does India Need An ODR Act Yet?

The Arbitration and Conciliation Act of 1996 and the long-awaited Mediation Act of 2023 marked significant strides in the realm of the Alternative Dispute Resolution (ADR) space. Whilst the former deals with the law relating to domestic arbitration, international commercial arbitration, and enforcement of foreign arbitral awards by various international arbitration institutions, the latter deals with the law of mediation for the resolution of disputes outside of the courtroom.

Nevertheless, the crux of the matter remains: there is a pressing need to streamline all the processes of alternative dispute resolution — arbitration, mediation, conciliation, negotiation, and the latest, Online Dispute Resolution (ODR).

Litigation – The Harbinger of Failed Jurisprudence

Due to the reputation that litigation has carved out for itself in the past several generations, the adjournments and emotional turmoil that comes with it, and the long years of legal burden that the generations to come must face, ADR has gained traction. However, despite the efficacy of all methods vis-à-vis traditional courtroom settings, the streamlining of all the techniques is what needs to be the focal point of the ADR-ODR discourse, moving away from colonial archaisms.

‘Streamlining’ essentially implies simplifying a system to enhance its effectiveness. To truly streamline the various ADR processes with ODR, it is quintessential to gain strength from the synergetic impact that all the processes have on the dispute resolution space in tandem with one another, to make dispute resolution easier.

The recent NITI Aayog ‘ODR Policy Plan for India’ Report was a stepping stone in the right direction; it was a successful attempt to solve two prime issues in the ODR space — lack of client trust in ODR services and arriving at free and mutual consent of parties. This report had a twofold impact on Indian laymen — it removed existing misnomers in the field of ODR, and increased awareness of ODR in the public eye.

To streamline or sideline?

Currently, there is a huge problem of ambiguity with respect to pre-requisites before initiating or commencing the processes. Consequently, the narrative to be drawn is straightforward. Could the codification of ODR address the present problems of ambiguity, vagueness, and lack of awareness by initiating parties and the laymen?

Codification could have a treble, cascading impact on the ODR space: solved trust issues, increased awareness, and improved access for all. Nonetheless, it is a well-established fact that there never is a one-size-fits-all approach for any system, and ODR is no exception. Could codification, therefore, help ODR institutions throughout India follow a unified ODR-oriented approach, whilst adhering to international benchmarks, thus making India a legally-forward and woke nation?

GenAI and LegalTech

There are about 650 LegalTech start-ups in India, with many more to come in the near future, especially with the evolution of technologies such as GenAI, which has undoubtedly taken the entire world — no sectoral bars — by storm. Since dispute resolution is a human-centric and process-driven approach, often involving a lot of sensitive information, could GenAI be infused with LegalTech to make dispute resolution processes like ODR much speedier? It may be opined that codifying ODR would lessen the very possibility of initiating such collaboration.

The adoption of AI devices by in-house lawyers has been a notable step in the development of acceptance of LegalTech. Besides, law schools and courts across the nation and world could also benefit from such pro-GenAI structures, especially since the youth are more tech inclusive. A critical question flows thus — would not incorporating these modern tech-driven approaches mean the risk of getting left at the seashore?

What’s in a name, anyway?

Incorporating such measures in the modern LegalTech space, particularly in ODR, would be an impossible feat with an Act coming into force. Despite the plethora of advantages that codifying ODR has, the long-term ramifications seem to outweigh them. For instance, the fresh narrative can be — streamlining ODR by legislative frameworks can potentially lead to more ambiguity and vagueness, since the dispute resolution processes are distinct from one another.

Codification can effectually kill innovation. Creativity — contrary to popular belief — requires ‘thinking with no boxes’ as opposed to ‘thinking outside the box’. An Act, therefore, would ultimately create a taut and rigid box. Consequently, although legislative framework is the usual way of ‘substantiating-and-subsisting’ any novel innovation that comes into limelight, ODR might as well break the archetype. It requires fresh eyes to look at it altogether, using a holistic systems approach.

To sum up

While the codification of ODR is a vital step for some, it is one that requires immense thinking and collaboration from legal and tech spaces. A balance sheet of hyperbolically discounted factors needs to be drawn up transparently. With more youngsters taking up the profession of law — and newer perspectives and groundbreaking technologies coming into practice — the legal fraternity is becoming more dynamic than ever before.

Therefore, no hasty step must be taken that threatens the long-term, hands-on vision of the legal landscape. Care must be taken for this purpose, by using a multipronged framework involving all relevant stakeholders — legal professionals, educators and particularly our lawmakers, thus making India a legally-forward nation.

Ninupta Srinath is a policy researcher and law student

Published on: Sunday, April 14, 2024, 09:54 PM IST