Articles

Alternative Dispute Resolution During Pandemic

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This Article is written by Raashi Suredia and Nupur Misra, students of Army Law College, Pune

INTRODUCTION

Alternative dispute resolution (ADR) alludes to a set of practices and techniques aimed at resolving civil disputes outside traditional legal and administrative forums. It normally covers mediation, arbitration, and a variety of “hybrid” processes by which a third party facilitates the resolution of legal disputes without formal adjudication. These substitutes to adjudication are advocated on a variety of rationale. Potential perks include the reduction of the transaction costs of dispute resolution and the proceedings are quicker as compared to ordinary proceedings; the creation of resolutions that are better suited to the parties’ underlying interests and requisites; and improved ex-post compliance with the terms and conditions of the resolution. 

ADR has gained ubiquitous acceptance among both the general public and the legal profession in recent years and is also being espoused as the means to help settle disputes alongside the court system itself. There are various widely used methods of ADR such as Arbitration, Mediation Negotiation and Conciliation. However, in the present state of affairs where the spread of Coronavirus (COVID-19) has put everything on hold, it is important to talk about its effect on ADR.

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The coronavirus global health crisis is significantly impacting communities worldwide. It has caused unparalleled disruptions and has damaged the world’s economy and business relationships. Great numbers of commercial disputes are coming into view as parties are finding it difficult to execute their contractual obligations. There is a likelihood that the crisis will result in a surge of litigation and will as a result defer the resolution of pending court cases. It is the unprecedented delays that should direct the parties towards alternative dispute resolution (ADR). Online Dispute Resolution (ODR) or Virtual ADR has come into play owing to this crisis.

Virtual ADR allows the cases to be resolved in a hassle-free manner and this system there is no need for the parties to travel. Parties to the dispute can communicate with each other through video conferencing which makes it possible for them to hear and see each other. In the case of mediation, the mediator can separate the parties and engage in a mutually agreeable settlement. Greater utilisation of ADR will result in nippy resolution of cases and will also be time and money-saving.

It must be stated that despite it being the need of the hour, there are certain challenges in this process. It is no secret that lawyers have always been averse to technology. Yet, in times like these, learning and adopting technology is essential for survival. Arduous and continuous training will be required for the lawyers to get through the offline to online transition. It is a tough row to hoe to provide internet connectivity to Indian Courts since most of them have poor network connectivity. Adequate security standards will have to be put into place so that the critical data that is stored is not hacked or tampered with in any way.

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Like any new initiative, virtual ADR will have its share of complications and glitches. However, it is undoubtedly a step in the right direction. ADR is no longer an alternate mode of resolving disputes. Rather, it is the ideal forum for the speedy, cost-effective resolution of disputes. The current pandemic has reformed the way we think about our lives and daily interactions. However, in unprecedented situations like these, it is much more important to come together and fight, to come out stronger and significantly more evolved.

The emphasis of this article is on mediation and arbitration. The first half of the article covers essential background for understanding ADR by focusing mainly on arbitration and mediation. The other half covers the use of AI in ADR during the pandemic.  

ARBITRATION

Arbitration in India is an age-old conception, originating in ancient India. It is still prevalent today in villages where the seniors of the village or community sit and resolve disputes between villagers and/ or the community. Therefore, it cannot be said that Arbitration as a concept or ADR is a foreign ingress on the Indian legal system. Arbitration is a part of ADR along with other ADR processes like Conciliation and Mediation. Arbitration in India is administered by the Indian Arbitration and Conciliation Act 1996. The Arbitration and Conciliation Act, 1996 as applicable in India today was created on the lines of the Model Law of the UNCITAL (United Nations Commission on International Trade Law). The popularity of cherry-picking arbitration over mediation and/ or conciliation has created the term Arbitration Dispute Resolution.

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Over time processes, procedures and powers concerning Arbitration and the right of parties to the same were incorporated in The Civil Procedure Code, Indian Contract Act, Specific Relief Act and by further incorporation of Indian Arbitration Act 1899, subsequently rescinded by the Indian Arbitration Act of 1940 and then finally by the Arbitration and Conciliation Act, 1996 which came into effect from 25th January 1996. The Arbitration and Conciliation Act 1996, seeks to consolidate and amend the laws about arbitration as were in force pre 25 January 1996 and seeks to fortify the domestic and international commercial arbitration which includes enforcement of the foreign arbitration awards on the lines of Model Law on International and Commercial Arbitration adopted by UN Commission on International Trade Law, 1985.

MEDIATION

Mediation is a form of ADR, a way of resolving disputes between two or more parties. A third party, the mediator assists the parties to negotiate their settlement (facilitative mediation). In a few cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation). Mediation has a structure, timetable and dynamics which the “ordinary” negotiation has a paucity. The process is private and confidential. The presence of a mediator is the key distinctive feature of the process. There may be no compulsion to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them. Mediators use numerous methods to open, or mend, dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Much depends on the mediator’s skills and qualifications. The mediator must be wholly unbiased. Disputants may use mediation in a multiplicity of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. 

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USE OF AI IN ADR

With the COVID-19 pandemic hitting the world, the mode of all sorts of transactions has shifted to online methods. The technological resources which were earlier being underutilised are now being used at their optimum best and new advancements are also happening within very short periods to meet the new requirements of people. When the entire economy shifted to online mode and the definition of ‘normal’ changed, the legal world had to adapt to the dynamic scenario as well and accept the ‘new normal’. Cases were put on hold for the pandemic to die down, however, that was not and still is not the case. The legal processes which are tedious in a country like India, where trials take years to be completed, the pandemic, provided an opportunity to the Indian legal system to develop itself and adapt to the change to provide speedy trials. Administration of justice and access to justice is the basic essential as well as an important public service provided to every citizen which cannot be ‘quarantined’ due to the lockdowns put in place for safety. Therefore, the Indian judiciary adapted to the ‘work from home’ approach quite quickly. The Supreme Court issued guidelines for the conduct of virtual hearings, which guidelines directed all High Courts to take necessary steps to implement virtual hearings through video conferencing both for themselves and for the subordinate courts within their jurisdiction. The presence of Artificial Intelligence is however not new to the Indian judiciary and has been in use for a good amount of time. Alternative Dispute Resolution has also incorporated the element of Artificial Intelligence in the pandemic very smoothly and adopted the word Online Dispute Resolution, combining Alternative Dispute Resolution and AI technology used. The pandemic made online dispute resolution gain attraction due to social distancing norms and remote work policies. Online dispute resolution permits resolution by way of mechanisms on the internet and coded algorithms. The COVID-19 pandemic and the AI-enabled virtual communication between parties that are geographically apart, thereby continuing the legal formalities and not putting any hindrance to the ADR methods. The demand for the prediction of trial outcomes through data analytics is as it is high and the AI technology has been able to predict outcomes with appreciable accuracy. Algorithms are used to find the area of settlement between both parties, thereby reducing the need for human contact, which was the main aim of implementing multiple lockdowns in the first place and increasing the speed of dispute resolution. The whole aim of ADR is to not take the case to the court which not only saves the time of the judiciary and the parties involved but also protects the relationship between the parties. The usage of algorithms and since they are prompt, allows the parties to save time by settling matters out of the court directly. These AI-based settlements are also more consistent and uniform across similar cases, simply because they have been formed after time and continued testing which has been done time and again. 

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Platforms like Manupatra and Lexis Nexis have been formed after taking into consideration the amount of time that is taken up while researching for case laws, these platforms have been designed in such a way so that they can give the user the required data without going through multiple cases or searches, this proves how well such coded platforms work in benefit of legal professionals. An AI can systematize data according to the user needs and provide that as and when required which in turn would lessen the burden on an individual. The use of AI would also reduce the documentation workload, by quickly assessing and selecting the material document, or for making summaries for documents. As human beings, we all have our biases, opinions and prejudices, but when it comes to AI technology, it is not affected by these mundane weaknesses, it would give answers only after following the rational and logical approach, therefore, eliminating the scope of human emotions interfering the case. 

CONCLUSION

The primary aim of arbitration is to get a neutral third party to resolve disputes equally without unnecessary costs or delays. The core aim of the Arbitration process is to save time and costs. AI will be complementary to the process of arbitration, as it is developed independently with its thinking and reasoning power and it is prompt and quick to solve queries, both aims of arbitration will be achieved. India is still a developing country and even though we are exploring new horizons in the field of computer technology time and again, development not only includes new advancements, it also requires optimum utilization of pre-existing resources to ensure sustainability, which is exactly what will happen when AI technology is incorporated into the ADR wholly and completely, reduction in individual workload, development of nation and sustainability of the world at large.

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ENDNOTES:
  1. Nilava Bandyopadhyay, India: Future of Litigation and ADR in India – Post COVID-19, MONDAQ (Mar 27, 2021), https://www.mondaq.com
  2. Masood Ahmed, Alternative Dispute Resolution during the Covid-19 Crisis and Beyond, TAYLOR AND FRANCIS ONLINE (Feb 25, 2021), https://www.tandfonline.
  3. Anubhav Pandey, All you need to know about Alternative Dispute Resolution, IPLEADERS (May 9, 2017), https://blog.ipleaders.in/adr-alternative-dispute-resolution/.
  4. Lalit Sharma, Evolution of ADR Mechanisms in India, SCC ONLINE (Feb 7, 2021), https://www.scconline.com/blog/post/2021/02/07/evolution-of-adr-mechanisms-in-india/.
  5. Manoj K Singh, The future of arbitration in India: Strengthening the process of alternative dispute resolution, THE ECONOMIC TIMES (Apr 17, 2021), https://economictimes.indiatimes.com/small-biz/legal/the-future-of-arbitration-in-india-strengthening-the-process-of-alternative-dispute-resolution/articleshow/.
  6. Michael Finnegan, Alternative Dispute Resolution: benefits and use during (and after) the COVID-19 crisis, BURGES-SALMON (Jul 17, 2020), https://www.burges-salmon.com/news-and-insight/legal-updates/private-wealth/alternative-dispute-resolution-benefits-and-use-during-and-after-covid-19.

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