Online Dispute Resolution: Scope and challenges

Basically, Online Dispute Resolution (ODR) is a method of using technology to facilitate the resolution of disputes between parties. This involves negotiation, mediation, arbitration, or a combination of all three. It is often considered an online equivalent of Alternative Dispute Resolution (ADR). ODR also applies innovative techniques and online technologies to augment the traditional means of resolving disputes. However, it often becomes difficult to provide a self-contained definition of ODR. Generally, use of technology involves the application of internet-based Information and Communications Technology (ICT) but ODR does not necessarily involve wide-ranging online processes. Numerous activities are replicated offline using pen and paper or achieved using computers without any internet connection. The range of terms and acronyms used to describe the field adds to the confusion felt by individuals unfamiliar with ODR. These terms include:
* Internet Dispute Resolution (IDR)
* Electronic Dispute Resolution (EDR)
* Electronic ADR (EADR)
* Online ADR (OADR)
Recently, ODR has emerged as a commonly-used term. It is still unclear whether such process forms a new discipline of ADR or a tool to aid existing methods of dispute resolution. It would be appropriate to view ODR as an interdisciplinary field of dispute resolution. When the cyberspace experiences a flurry of social and commercial activities, various disputes arise between parties - including disputes concerning defamatory language, invasion of privacy, breach of e- contracts, domain name disputes, cyber crimes including identity and data thefts, and cyber terrorism among others. Such "electronic" disputes (e-disputes) not only involve the unconventional ones but also the traditional disputes relating to sale and purchase of goods, unfair trade practice, defamation, copyright and intellectual property infringements. The disputes may arise between individuals and corporate entities, also involving the government. Whenever two parties belong to dissimilar jurisdictions, parties become wary of submitting their disputes to the courts of dissimilar jurisdiction that will decide the disputes based on dissimilar laws. Unlike the conventional litigation process, ODR provides a practicable solution to parties without requiring submission of their disputes to the courts for adjudication within the jurisdiction of a particular country. An independent set of laws or rules of the ODR service provider may apply to resolve disputes and an independent panel of judges could be appointed on request of the parties for settling their disputes.
In 1996, Virtual Magistrate project became the first ODR service to offer online arbitration system to resolve cases of "electronic defamation". The Ombuds Office at the University of Massachusetts resolved a dispute of a website owner with a local newspaper involving a copyright infringement which was settled through mediation. Since 1999, many ODR service providers have successfully resolved disputes involving governments and commercial entities both in the public and private domain.
In most jurisdictions, ODR has been based on the ADR system wherein technology was added to ADR making it more efficient and convenient to all parties. In India, the use of ADR techniques is explicitly encouraged through the Naya Panchayat System, Lok Adalat, Arbitration and Conciliation Act, 1996 based on the model of United Nations Commission on International Trade Law (UNCITRAL) - prioritising the law of arbitration and provision of statutory arbitration. The Indian legal framework supports ODR including Section 89 of the Code of Civil Procedure, 1908 that promotes use of alternative dispute resolution between parties. Similarly, Order X Rule 1A authorises the court to direct the parties to a suit to choose any ADR method to settle disputes. The Information Technology Act, 2000 recognises the use of electronic signatures and electronic records. Recently, State of Maharashtra vs Dr. Praful B. Desai lawsuit encouraged the Supreme Court of India to establish that Video Conferencing is an acceptable method of recording evidence for witness testimony. Moreover, Grid Corporation of Orissa Ltd. vs. AES Corporation court case has set a precedent - "when an effective consultation can be achieved by resorting to electronic media and remote conferencing, it is not necessary that the two persons required to act in consultation with each other must necessarily sit together at one place unless it is the requirement of law or of the ruling contract between the parties". Thus, India's legal framework as well as precedents laid down by the country's highest court support the use of technology for dispute resolution and hence encourage use of ODR.
The ODR procedure entails filing of e-documents wherein the parties may use encryption or electronic signatures to safeguard the integrity of the documents and authentication of the transactions. Generally, parties seek the assistance of an ODR service provider for appointing a neutral panel of judges or panellists to resolve disputes online. Parties prefer a structured and clear procedure where resolution is simple and definite. Reputable institutions like World Intellectual Property Organisation (WIPO), Singapore International Arbitration Centre (SIAC) and International Criminal Court (ICC) usually resolve online disputes through mediation and other alternative disputes resolution methods. By filing a complaint, the complainant seeks compensation or other remedies before the consenting respondent submits its detailed replies. The process may or may not involve oral hearing by use of teleconference or video conference facilities. Automated software often resolves disputes without the necessity of appointing any third party. If the claimant's offer falls within an acceptable range, the disputes between parties are resolved. Generally, an ODR service provider serves the function of an administrator or infrastructure provider and not a judge that decides the disputes.
ODR might be preferred for its efficiency and lucrative advantages in reducing bitterness between parties. Under a banking Ombudsman scheme, ODR resolves miscellaneous disputes in civil, commercial, industrial and banking spheres - including the construction or partnership disputes and protection of liability or insurance-related disputes. In Australia, family disputes are required to undergo a mandatory mediation. However, issues related to criminal or constitutional laws fall within the domain of litigation process and remain excluded from ODR, although areas such as telecommunications or labour laws are being added to the domain of ODR. In the United States, Federal Mediation and Conciliation Service is using ODR to settle labour disputes. Under the principles of e-governance, various governmental departments are using ODR to settle consumer grievances. Despite the benefits of ODR, critics have pointed to a number of challenges and limitations. Even though ODR is speedy, convenient, flexible and voluntary - potential glitches based on feasibility studies are refuting the claim that ODR is a suitable alternative to litigation or traditional ADR. Lack of face-to-face encounter, issues of confidentiality and security, problems with arbitration agreement, problems with enforcement of "electronic arbitral" (e-arbitral) award, applicable law and arbitration seat, culture and language barrier, and nonexistent homogenous laws for ODR in Bangladesh's cyberspace are some of the concerns.
In Bangladesh, software and application can also be used for "dispute resolution" purposes. The Arbitration Act, 2001 empowers the parties to a dispute to resolve their dispute through ADR mechanisms like arbitration, conciliation, and mediation. Nevertheless, the statute is quite obsolete due to the lack of legal support for Online Dispute Resolution (ODR) in Bangladesh. Therefore, a new arbitration law recognising the use of ODR in Bangladesh should be enacted urgently.  Undoubtedly, the ICT Act 2006 is a historical step. Despite electronic commerce and ODR being interrelated factors, specific provisions for e-commerce and ODR are excluded from the ICT Act, 2006.
Lastly, introduction of ODR in Bangladesh requires mass awareness, amendment of the country's arbitration and ICT laws, smooth and speedy internet connection, corruption-free governmental departments, manpower training in ICT, funding for projects, codification of the ODR law and practices to effectively resolve e-disputes. In short, ODR has all the attributes of becoming an efficient method to resolve e-disputes that will bring long term benefits including secure e-commerce and build greater trust and confidence in Bangladeshi cyberspace.
The writer is an Assistant Professor and Head of the Department of Law at Cox's Bazar International University, and a member of Transparency International Bangladesh (TIB).
lawmnahyder@yahoo.com