Disputes are conflicts or clash of interests which are wrapped in the cocoon of legal rights and duties. Many a time, we tend to impress the need of enforcing the cocoon that is the right and obviate the protection of what lays inside it that is our interest.
With increase in high stakes and interconnected business transactions, it has been found continually difficult to be able to raise a dispute with a party, fight it in court halls, and after the final settlement, walk away never to see him again. There has been inter - dependency between various business entities which necessitates continued business relationships for a smooth flow of work. A singular dispute can no more be a reason for completely serving commercial relationships for smooth flow of work. However, in case of a dispute, any approach to the courts causes such severance which both parties wish to avoid. At the same times there is a need of ironing out the differences. This dual requirement above all led the parties to look for great pastures for resolving disputes and found solace in certain internet based solutions collectively known as alternative dispute resolution. Of course, there were other concerns like time lag before the courts, the opportunity costs, and alike which prompted the business world to adopt the ADR.
The use of ADR found favor in furtherance of business interests rather than enforcing legal rights stricto sensu. ADR indicates a conceptual change in the dispute resolution mechanism. It shows a movement from the jurisdictional theory to the party autonomy concept. As the concept gained acceptability at international level, rules were framed to make it more convenient for the parties to avail the facilities on an international level and be able to enforce the results in their respective jurisdictions. The 1958 New York Convention on enforceability of Foreign awards, UNCITTRAL Model Law 1985 and then the rules of Arbitration and Conciliation pushed the concept of ADR further making it a more positive and realistic approach to a dispute settlement.
The advent of computers helped in assimilating raw data and information which could then be processed into the meaning reports. It was this need of the hour that prompted improvement in technology and more and more use of computers. These days internet has taken a vital role of free information dissemination mechanism. The phenomenal growth of e-commerce makes it amply clear that commerce via the internet has been accepted at large both by the business world and the consumers. The change in computer arena also signifies the possibility of rise in clashes in interests of the parties, i.e.., rise in disputes. More the people tend to get online and more the commercial world prefers the internet as its medium to reach to the consumers and sell its products and more the consumers are willing to purchase goods and services on the net, there is a likelihood of certain disputes. These kinds of disputes have their own variety of legal hurdles like the issue of jurisdiction or the question of law applicable to the dispute due to the cross boundary nature of the Internet.
ODR on a prima facie screening has two connotations. On one hand it can be viewed as resolution of online disputes and one the other hand it can be looked from the perspective of method of solving a dispute may the disputes be an online or an offline dispute. ODR in its ambit includes online negotiation, online mediation, online arbitration and online neutral evaluation along with online peer jury etc. taking the method based approach, ODR covers a variety of ways in which a party, by making use of the online environment solves its clash of interests wrapped up in the form of interests.
Any institution providing ODR services must be able to generate the trust and confidence among the users. The primary concern of any user of such online services is, apart from the authenticity and reliability of the service provider, possibility of fixing the responsibility on a single person in case of any deficiency of services. In such a situation, not only the online service institution should be backed by an offline set up, it should also follow the disclosure based approach which further helps in creating e-trust and e-confidence among the users of online system.
Its always good to compromise when the ODR side understands your feelings... but it’s not good to bend so much that you loose your existence…
"..............to be continued"
Ramakant Gaur
Advocate
Supreme Cpurt of India
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