Wiping Every Tear from Every Eye.. Forget Courts…Transform from Litigation to ODR

cji_2During a recent meeting of Chief Justices of High Courts, the Chief Justice of India, Mr T.S.Thakur broke down emotionally with the burden of a perceived guilt of the Judiciary in not being able to reduce the pendency of cases.

While this brought out the frustration of an honest Chief Executive of the system, I could not miss a feeling that the solution is staring at us and we have not perhaps identified it.

The solution lies squarely in an aggressive promotion of the system of ADR (Alternate Dispute Resolution). Being from the IT enabled legal services industry, it was natural for me to immediately feel the increased need for the use of ODR to accelerate the ADR process itself.

Afterall, the Modi Government passed the Amendment Act to the Arbitration and Conciliation Act 1996 on 31st December 2015 enabling the use of electronic means for conducting ADR. The amendment also contained what may be considered as revolutionary proposal to fix specified time limit for completion of Arbitration and incentives and disincentives for variations.

Now all those Advocates and Professionals who have the necessary legal and domain experience and the “Urge to Resolve Disputes” should consider setting up their own “Dispute Resolution Centers” (also identified as Arbitration and Mediation Centers) so that in the next couple of years, we have a huge capacity build up in Dispute Resolution which will at least ensure that there is no further build up cases in the overworked Judiciary.

Naavi’s ODRGLOBAL.IN proposes to provide the technical infrastructure to enable and empower such professionals so that they can conduct online dispute resolutions and apply their arbitration and mediation skills to good use.

Ofcourse, skills in Arbitration or Mediation are to be nurtured. They are different from what advocates learn while acquiring LLB or practicing in a Court of Law. Perhaps we may consider that Mediation is more an “Art” than a tought and learnt skill. However, efforts are to be made by professionals to polish their dispute resolution skills before they plunge full scale into this new profession.

The first thing an “Arbitrator” or an Advocate participating in Arbitration proceedings or even the Litigant parties need to understand that in a “Litigation” it is more often a “Win-Lose” fight where as Arbitration and more so the Mediation is a “Win-Win” negotiation.

Further, the Judge in a litigation is strictly constrained by the inefficiency of the counsels and cannot go beyond the evidence and argument provided by the counsels even if it is inefficient and incorrect. Arbitrator has a greater freedom to find a solution and can intervene more pro-actively than in a litigation.

In a mediation, the emphasis is driving towards a mutually agreeable conclusion and not being correct to a point of law.

If this principle of “Win-Win” is understood and implemented, then the society will be lot better in the next decade when the pending 3 crore cases are resolved by Courts since they will not create 3 crore dissatisfied losers trying to take revenge on other 3 crore winners,  rather than having 6 crore happy resolved formerly disputing parties.

(P.S: I agree that all disputes are not amenable to a Win-Win solution. But the principle needs to be appreciated). 

If we agree, the question then arises….

a) If I am a professional advocate or a domain specialist

Should I become an Arbitrator?

Should I ask my clients to include an arbitration clause in the agreement providing for “Online Arbitration on the technology platform of www.odrglobal.in”?

…. perhaps it is time to consider.

b)  If I am a Consumer facing organization, say a Bank or a White Goods manufacturer or a Service provider, or an e-Commerce player,

Should I start incorporating the ODR clause into my contracts?…..(with odrglobal.in as the technology platform)

…. perhaps it is time to decide

This transformation from a “Litigation Mindset to ODR Mindset” could be an innovation in the dispute resolution industry that can wipe “Every tear from Every eye”….an evergreen mission for all nation builders.

Whenever we discuss an “Innovation” with established  industry practitioners, we come across a dilemma.

They often ask….

Should I be the first to try out? Are there some unknowns which I cannot identify?.

Most of the conservative practitioners come to the conclusion, let me not be the first..  Let me wait for others to implement the innovation and then come in.

No doubt this is a common human trait and we need to respect the cautious attitude of such “Safety First-Innovation Next” kind of professionals.

But behind this attitude lies the quality of management .. “Should I be a Leader or Am I content being a “Follower”.

The entire “Start Up ” industry is built on this premise that “Innovation is the Key to Success”. No doubt some or even many innovations may fail. But as long as the innovator hedges his risks to the extent that he will not go down with a failed innovation, there is no reason for not trying to be an innovator.

In fact it is the few innovators who succeed who turn out to be the industry leaders and icons.

Today, I would like to ask a question to all the Legal heads of companies including the Infosys, Wipro, Flipkart , as well as the Toyotas, Whirlpools, Citi Bank or State Bank etc, or for that matter any consumer facing Company why they should not take the lead in using ODR as a dispute resolution mechanism between themselves and the Customers.

It would be an “innovation” that may distinguish them as a leader rather than a follower. Will these companies who are known leaders in their respective fields bogged down by the thought “Let others try…then I will follow..”. I hope not.

I call upon all the legal heads and business heads of companies to step into this new world of ODR and contribute to the vision of “India as a Global Hub of ODR”.

I request all readers to forward this post to any of their known legal contacts in the industry and seek their response and feedback which may be sent to Naavi

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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