Dispute Risk Management… Being Prepared for the unexpected

Every entrepreneur or businessman starts with an optimistic outlook that everything will be going as per plan. He enters into number of contracts thinking that the other party will always do what he has agreed to do. He will presume that all customers will be happy and there will be no sales returns. But..life is not that simple. Murphy’s law states “If anything can go wrong, it will”. The same applies to business contracts and customer relations. Sometimes, if not often, contractors donot deliver, customers are unhappy and return the goods for no valid reason. The business has to be prepared for such eventualities.

Today, E Commerce companies like Flipkart or Myntra,  handle Customer dissatisfaction by being generous in accepting returns without raising any questions. Perhaps, they have the surplus fund to be generous. Traditional business has not found it convenient to be so generous because they consider that it simply is not possible. As regards Contractual disputes, whether it is the funded E Commerce company or the traditional business, disputes often arise may not be out of willful default but out of extraneous developments and differences in interpretations of performance parameters. Almost all companies have frequent differences with its own employees who leave disgruntled and keep a fight going.

Hence every business has to include in its business planning, the possibility of a legal dispute arising out of their operations and the risk that presents in terms of direct and indirect costs.

In Information Security management, we talk of Risks arising out of “Threats” overlapping with “Vulnerabilities” and a strategy for managing such risks with a structured approach which includes Risk Mitigation along with Risk Avoidance, Risk Transfer and Risk Absorption strategies. A similar approach is also required as regards the “Dispute Risk”.

Naavi has been advocating a structured approach to Cyber Law Compliance because it is one of the first steps in “Dispute Risk Mitigation”. Naavi has also been advocating “Cyber Insurance” which is one of the strategies to cover the “Dispute Risk Transfer” strategy. In continuing the efforts at devising strategies for “Dispute Risk Management” Naavi is also addressing better ways of managing disputes by promoting the concept of online dispute resolution through ODR Global.

ODR Global (www.odrglobal.in) is a service which enables any Institution or Individual engaged in Arbitration or Mediation or Conciliation to conduct the proceedings on the cloud. This would be cost effective and convenient. In many cases of disputes in the digital world it is the only way the disputing parties will come to the discussion table. Over and above the convenience and cost effectiveness, ODR Global with its tie up with Cyber Evidence Archival Center (www.ceac.in) provides an evidence of the proceedings in the form of a Section 65B (IEA) certified electronic document supporting further challenges in Courts  with admissible evidence.

It would be interesting to see how the market reacts to this unique proposition. Will the legal community or more appropriately the Arbitration community (which mostly consists of retired Judges) be able to appreciate the technical nuances involved in making use of the ODR system? or prefer the old way of meeting in a conference room and discuss face to face? , Will the Consumers of Arbitration which include tech savvy business men force their arbitrators/mediators/conciliators to adopt online methods instead of the traditional systems?.. only time will tell.

Naavi is looking forward to progressive Arbitral Institutions and educational institutions to start using ODR on the platform of ODR Global so that others will follow suit.

Another pertinent question to raise is “What should be done to make the ADR community take up to ODR? .. Any views?

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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