The origin of Online Dispute Resolution can be traced back to the early 1990’s, a period of significant changes in the online environment. In 1996, the first articles on ADR were published, there were several conferences sponsored which aims at creating awareness on ODR along with it various committees were established which worked for the development of ODR.
With the passage of time this concept of ODR evolved and various dimensions were introduced to this concept. The article by ‘courts and tribunal judiciary’ defines ODR as:
“Online Dispute Resolution (ODR) is a set of dispute resolution techniques which use information and communications technology for automating and speeding up information processing and for overcoming distances through the use of remote communications. This will usually involve an online platform on which documents (evidence and legal argument, expert opinions, etc) are uploaded, stored, organized and made accessible to the relevant parties and the neutral third party. It may also involve distance communication through web‐conferencing facilities which mean that the parties and neutral third party do not need to meet in person. In addition, ODR may use sophisticated knowledge management tools for legal information about the specific case or expert and legal opinion.”
With the infusion of information and communication technology in almost every sort of online dispute intervention process and rapidly adoption of ODR mechanism it is the need of the hour to produce a set of ethical principles in order to enhance the quality, effectiveness and scope of dispute resolution that involves technology. These ethical principles of ODR has derived their base from the previous work on principles and standards of a practice by the National Center for Technology and Dispute Resolution, as well as the growing body of literature and the standards of numerous professional, governmental and commercial bodies concerning ODR and dispute resolution more generally.
It is known to us that the ethics of ODR are dynamic in nature, because ethics are guided by the perspectives and practices in a particular area which can never be static. Therefore, the guide to the ethical principles should be revisited timely. Following are some basic ethical principles that ought to be followed in ODR:
- Accessibility: In case of online dispute resolution it needs to be kept in mind that this process should be accessible to all despite of the cultural differences, or their access to resources. These differences should never hinder the pathway to justice in any case. Only then the implementation of this process will be considered as efficient and effective.
- Accountability: The accountability of development and implementation of the ODR systems, processes and practices lies with the institutions, the legal framework, and communities for which they serve.
- Competence: The ODR systems, processes, and practitioner should be competent in relevant technological and human competency required for effective implementation of the zODR process which they undertake to assist with. Technological and human competency here means legal and technological knowledge, language, culture etc.
- Confidentiality: In the ODR systems, processes and practitioners, confidentiality need to be maintained in accordance with the principles of legal obligation, informed participation, security and transparency.
- Equality: The system of ODR is designed in such a way that an equal treatment is given to every individual resorting to ODR mechanism to seek justice. Even the marginalized section of society should never left unheard in ODR.
- Fairness: ODR processes are designed and implemented to facilitate and uphold due process, without bias or benefits for or against individuals or groups, including those based on algorithms. They are responsive to and reflective of the communities and stakeholders they serve.
- Impartiality: It is the duty of practitioners of ODR to ensure that the complete process should be impartial in nature. This includes accounting for technological and other conditions that could structure patterns of privilege in process and outcome for repeat players with particular attention to the principles of Accessibility, Fairness and Transparency.
- Security: All reasonable efforts are made to ensure that the data and communication between the parties and other entities linked to ODR processes are secure to the fullest extent of the law, making transparent any known limitations.
The ethical principles of ODR are inter-related to each other, and these organized set of ethics will serve as a GPS which will guide to the new dimensions of ODR.
AUTHOR – SAMAKSHI PANDEY