DIGITAL GAP IN ALTERNATIVE DISPUTE RESOLUTION

DIGITAL GAP IN ALTERNATIVE DISPUTE RESOLUTION

Share This Post

Introduction

Technology affects every part of our life; all professions are looking for ways to benefit from it. Alternative Dispute Resolution is no different. The field has been investigating the use of technology to arbitrate and mediate conflicts since the mid-1990s. Talking specifically about mediation, this procedure first focused on replacing physical gatherings with entirely online operations. Rather than costly and time-centric face-to-face meetings and hearings, Online Dispute Resolution (ODR) has been marketed for rapidly and easily resolving disputes via online “drive-thru” methods.

Video technology is, in fact, becoming more widely used. Reliable technology has been available for a decade, and inexpensive reliable technology has been accessible for years now.

However, conflating “technology” with “online” leaves an entire practice area unexplored, a void we must address: the use of technology to complement conventional, in-person mediation methods. Most mediation procedures nowadays are essentially devoid of technology.

The growth of the mediation and ODR sectors explains why there is a gap between theory and practice when it comes to the use of technology to assist in-person mediation.

To date, the area of mediation has largely been unscathed by the technological developments that have caused upheaval in many other fields. Technology is viewed as mainly unimportant to the mediation process; most mediators use it to help manage their businesses, not to add value to the services they provide to their customers.

In arbitration too there has always been a digital gap. The belief is that online proceeding not only makes it difficult for the production of documents but also makes the cross-examination less accurate. Nevertheless, the technology has been accepted and used in cases where it is difficult for the parties witnesses to be present. However, its application in international arbitration has primarily been confined to cases in which a witness was unable to participate in person, or when the expense and hassle of travel compared to the importance of their testimony made videoconferencing acceptable. International arbitration institutions and legal cultures have taken different approaches, with those cultures where cross-examination of witnesses is “most sacrosanct” adopting the least.

Major challenges faced by online ADR

Digital Gap is also because of the presence of cons that are faced in online ADR. In India, the major problems that online ADR Arbitration processes encounter have not been commonly accepted. For evident technological limits, awareness, and people’s sceptical, suspicious approach, the ODR mechanism has not been able to develop trust and confidence amongst them.

  • Furthermore, in the Indian context, a still-developing technology of access to internet connectivity in remote areas obstructs a quick and welcoming approach to online arbitration proceedings. 
  • Because most current contracts lack ODR terms, modifying them is much more difficult, especially during COVID.
  • Practically, in all developing nations, including India, infrastructural and institutional constraints limit the rapid expansion of ODR.
  • It has been considered by many that online arbitration is not suited for criminal cases or marriage conflicts.
  • There is no bodily presence and no face-to-face interaction between the disputants which sort of affects the ADR proceedings.
  • In developing nations, the unequal distribution of technology, internet, and e-commerce opportunities further delays the acceptance and acknowledgement of the ODR process.
  • Lawyers’ lack of proper training impedes quick and healthy acceptance of the phenomenal dispute resolution mechanism; thus, there is a need to raise awareness through seminars, training, and campaigns to make lawyers and the general public legally aware of the phenomenal dispute resolution mechanism.

These were considerate reasons until COVID-19 impacted everything. The government-ordered ‘lockdowns,’ aiming to slow down the virus’s spread, totally banned foreign travel and non-essential domestic travel, as well as the shutdown of numerous workplaces and enterprises to prevent the spread and practice social distancing. 

The legal profession has been no exception, with the widespread use of videoconferencing, including quick implementation in mediations and hearings. Arbitration centers that are commercial have acted fast to provide online hearing choices and “hybrid” offerings of partially online sessions. Many people who were previously apprehensive about the widespread usage of videoconferencing have had little choice but to accept it. Whether those who feel that cross-examination of witnesses can only be done when “you can see the whites of their eyes” like it or not, the technology “angel” has escaped the cage. The issue now is whether arbitral institutions – and the international community as a whole – will seize and expand on the opportunities presented by this unexpected occurrence.

Despite the fact that the majority of arbitration users believe that “increased efficiency, such as through technology,” is the factor most likely to have a significant impact on the future evolution of international arbitration, the use of technology in the conduct of arbitration has remained limited owing to a lack of familiarity.

Advancement in information technology and machine learning, when properly implemented, may make the processes of gathering, reviewing, and producing electronic documents more efficient and effective cost. These document-producing performance technologies have been around for a while. However, they are still only used in a limited number of cases in international arbitration. Since COVID-related travel restrictions have made it physically difficult for clients and attorneys to visit attorney offices to gather papers for evaluation,greater dependence on technology is required to bridge the physical gap. If teams working remotely are to perform successfully, even scenarios with relatively small populations of documents for review and production necessitate the usage of electronic review systems.

Conclusion

We could better engage our parties if we used technology to provide them access to the information they need, assist them in analysing it, and give them a better grasp of their resolution alternatives. How can we not use technology when all of this is possible and still believe ourselves to be practising ethically or optimally? However, we know that incorporating technology into the alternative dispute resolution process will inevitably alter it. The process of transformation, as well as its scope, must be approached with intention, purpose, and mindfulness. It might need a rethinking of the parameters within which ADR is performed.

Related Posts