Role of Information Technology in Alternative Dispute Redressal

By

Jasper Vikas George*

The attempt in this paper is made to analyse the utility of Information Technology In the working of Alternative Dispute Redressal Forums. Information technology provides opportunities to facilitate communication and so assist in prevention and management of disputes.  ADR services can use information technology to provide information to parties in case of disputes arise between the parties and also to complement and substitute for, traditional information system. Information technology can also play a valuable role in supporting the quality of ADR practice through more effective supervision, assessment, training, information management, research and evaluation.

Introduction

The aim of ADR is to solve the disputes amicably between the parties. The less intervention of judiciary is the backbone of ADR system. The role played by information technology is important in this context. Information technology provides opportunities to facilitate communication and so assist in prevention and management of disputes. The role played by the information technology is commendable in this aspect. The quality of ADR will affect the very resolution of disputes. The information service providers informally may be reduced the discrepancies arises in the collection of the documents. Same is the vice versa. An inappropriate use of information technology by service providers may decrease the effectiveness of dispute resolution processes. This creates a challenge to the effective working of the ADR system.

Different facets of Information Technology

The role of Information technology in ADR is increased significantly due to its recognition as recognised informal system having almost negligible interference from the judiciary. This calls for experiments in dispute resolution with the help of ever advancing information revolution. Since disputes and ADR processes involve processes of information exchange, information transfer, communication, presentation, etc., such 'information' can be in the form of written word, the spoken word, numerical data, presentations such as money, latitude, longitude, visual images, moving visual images, audio or other sensory data. The concept of web conferencing has already managed the workload of information to the greater extent. The presentation is now much easier and the essential need of presence is also fulfilled.

Non-Interactive Techniques

Traditional way of communications is through the land line phones. The communication through this mode consists of telecommunication, Telefax, teleconferencing. This type of communications consists of two manners. One is Interactive and the other is non-interactive communications.  Interactive communications enable the user to interact with and through the telecommunication medium. In non-interactive communication, the user is passive. The deficiency with this type of communication is its ‘one wayness’. It is sequential in nature. One at a time makes it less interactive and monotonous sequence. The modern E-Mail system is also one sequential. These traditional techniques of one sequence communications are not so interactive. Hence, the information revolution is preferred over non interactive techniques.

Interactive Techniques

An interactive technique consists of web conferencing and other internet related direct conferences tools. The utility of Computers i.e., softwares and hardware were also used to collect data and word processing. Other voice recognition and translation tools were also used for conferencing and group decision making tools. Softwares are designs for the facilitation of the mediation, conciliation, arbitration and negotiation, etc.

Web conferencing creates and reproduces live visual in addition to sound information. The other tools such as data projection, closed circuit TV, White screens, and one-way screens may be used both in the delivery of dispute resolution services, and in serving the alternative dispute proceedings beyond space and time in real virtual world. The internet related audio-visual technology may help ADR in not only serving properly in almost no time at all with all the facilities of digital nature to enable the proper proceedings. Electronic whiteboards which consists of enabling agenda and agreements written up and copied, data projection, video facilities and other tools such as one-way screens, pin boards and semi adhesive surfaces can also be used effectively.

ADR Disputes

Disputes are subject to time. In every stage of civilization, where on the one hand the technology gives pace to the business and on the other hand gives rise to the disputes due to that technology. In Bhagwandas Goverdhandas kedia v. Girdharilal Parshottamdas & Co[1]. Supreme Court held that in the case of telephonic conversation, the position is the same as in the case where the parties are in the presence of each other, and the rule of a contract through post does not apply to such contracts. In case of acceptance sent by post, the contract is concluded when the letter of acceptance is posted, whereas in the case of acceptance by phone, the contract is deemed to be complete when the offeror hears the acceptance at his end rather than when the acceptor speaks the words of acceptance. Each new technology creates new types of disputes, as well as opportunities for new forms of dispute resolution. The use of the E-Mail once found very economic and easy to use. It is profoundedly used by every one irrespective of the volume of the business. The beginning of disputes is not far and it begins with the problem of contract via E-mail. This forces parliament to enact the law i.e., Information Technology Act, 2000 and do amendment to some other laws too. Last decade saw the advent and increasing acceptance of virtual environment. It transforms our thinking about the nature of human interaction and relationships. The creation of virtual identities, virtual locations (URLs) and virtual meeting places, such as chat sites and cyber-cafes etc. had increased the limits of the sovereignty of a country. The role of private international law has increased tremendously. Problem of choice of jurisdiction also changeth as per cyber-virtual-territory. Internet culture develops through protocols, norms and languages. This virtual regime has its own tools to play with such as digital signature, Encrypted language, digital authentication, password oriented privacy etc.

Choice of Jurisdiction

By choosing internet as the means of solving the ADR dispute we find no problems of choice of jurisdiction. Irrespective of time and place, with the help of Interactive communications we can go for proceedings from any place of the world. Alternative dispute resolution services adjust to new technology and provide better negotiation, mediation and other dispute resolution processes.  

Predominantly the ADR can use information technology in a systematic way to solve the disputes in a more lucid and speedier way.

1.      The computers via e-mail are performing the work of both, one, performing of contracts and second, management of contracts.

2.      Communications through telephone networks, and web conferencing eliminated the difference of time and place. The use of video-conferencing facilities should be used as much as possible to not only save the time but energy too. The future is of nanotechnology and robotics. The use of information technology will provide necessary fairness, effectiveness, and it is economic too. Hence, easily accessible and acceptable.

Online Dispute Resolution (ODR)

ODR is particularly convenient and efficient where the parties are located at a distance, as distance communication obviates the need for travelling. In principle, ODR can be used for both disputes arising from online interactions and transactions and for disputes arising offline. However it is particularly apt for e-commerce disputes, where it is logical to use the same medium (the Internet) for the resolution of disputes and where the parties are frequently located far from each other. A distinction is sometimes made between proceedings exclusively conducted online and proceedings "only" supported by different elements of ODR. In fact, there is no such clear-cut distinction. Nowadays, all dispute resolution falls in the latter category to some extent, in the sense that online technology plays some role or other in most modern dispute resolution. On the other hand very few proceedings, as will be seen in this paper, falls squarely into the former category. Thus ODR is a matter of degree- there is a broad spectrum of ODR, with at the one end proceedings using hardly any online technology and at the other end proceedings using a high degree of online technology. ODR is not a monolithic concept- for this reason it is more accurate not to speak of ODR but in the plural of ODR techniques. The task for dispute resolution professionals is to choose the right mix of ODR techniques and traditional offline dispute resolution techniques, appropriate to the dispute in question[2]. Following are the ways of ODR.

• On-line arbitration
• On-line mediation
• On-line conciliation

Some ODR processes, such as on-line mediation, conciliation and arbitration, attempt to produce the virtual network with traditional facilities such as face to face interactions via web conferencing. It is easy to use and effective due to its quickness with efficiency and cost economy.

Legal issues

We have to accept that the virtual world has its own sovereignty, “Virtual Sovereignty”.  In the case of ADR, the question arises as to what is the place of the arbitrator, conciliator or mediator.

The other critical and equally important question is the privacy of the date and the authentication of data are the crucial issues. Section 4 of the Information Technology (IT) Act, 2000 gives the legal recognition of electronic records and Section 5 of IT Act, 2000 legally recognise the digital signatures. Public key infrastructure (PKI) enables electronic signatures to be recognised and validated.

In the Australian context, it is noted that the Telecommunications Interception Act (s 6(1)) provides that where a communication is listened to or recorded over a telecommunications system, it must be with the knowledge of the person making the communication. An on-line ADR system in Australia would have to comply with this provision.

Conclusion

In State of Maharashtra v. Dr. Praful B. Desai[3] Supreme Court held that video-conferencing could be resorted to for the purpose of taking evidence of a witness. The Supreme Court struck down the High Court order by stating that recording of evidence satisfies the object of Section 273 of the Code of Civil Procedure that evidence be recorded in the presence of the accused. In explaining the benefits of video-conferencing, the Court observed that “In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness.” Hon’ble Court further stated that “Virtual reality is a state where one is made to feel, hear or imagine what does not really exist. Video-conferencing has nothing to do with virtual reality. Video-conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence.” “This is not virtual reality, it is actual reality.”  This is not the first time that the Supreme Court has ruled in favour of technology. Supreme Court earlier in Grid Corpn. Of Orissa Ltd. V. AES Corpn [4] held that “When an effective consultation can be achieved by resort 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.” In this case the contention was that the two arbitrators appointed by the parties should have met in person to appoint the third arbitrator. In Sil Import, USA v. Exim Aides Exporters, Bangalore[5] Supreme Court held that “Technological advancement like fascimile, Internet, e-mail, etc. were in swift progress even before the Bill for the Amendment Act was discussed by Parliament. So when Parliament contemplated notice in writing to be given we cannot overlook the fact that Parliament was aware of modern devices and equipment already in vogue.”

The passing of the Information Technology Act, 2000 and incorporation of e-commerce, provide an excellent opportunity to India to not only excel in international trade but it is also be helpful in solving the disputes through ODR. The future is information technology.

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*Jasper Vikas George, Advocate, Delhi High Court, Res.  69, Antriksha Apartments, H-3, Vikas Puri, New delhi – 110018

Office:-

G & G Associates, G-2/2, Ground Floor, Sector – 16, Rohini,New Delhi – 110085

Contact at ,(M) 9818821498,E- Mail ID – jaspervikas@yahoo.com

[Ed: Views Expressed here in are that of the Author]