Technology Mediated Dispute Resolution - A new paradigm for ADR

SYNOPSIS

Technology Mediated Dispute Resolution is a process whereby the parties agree to resolve the dispute through ADR with the aid of technology such as online technology and other communication technologies such as cellular telephones, radio frequency devices, videoconferencing technology and satellite communication systems. This term was coined by the distinguished Professor David Allen Larson in the year 2006 in an article named Technology Mediated Dispute Resolution (TMDR): A New Paradigm for ADR. The term encompasses all potential communication technologies which Online Dispute Resolution (ODR) fails to acknowledge. This may even be called Internet Dispute Resolution, Electronic Dispute Resolution, Electronic ADR, Online ADR.

Professor Larson, while recognizing and distinguishing the nuances of these terms, suggests the use of technology mediated communication (TMC), and thus technology mediated dispute resolution (TMDR), as the term that embraces various technological options available today for communicating and resolving conflicts, as opposed to solely focusing on one channel, such as online communication. The essay contains the Indian as well as the International backdrop of this emerging concept. The advantages of TMDR have been enlisted. The various methods of TMDR ordinarily adopted have been clearly highlighted and given due emphasis.

WHAT ARE WE TALKING ABOUT: AN INTRODUCTION

"At first people refuse to believe that a strange new thing can be done, then they begin to hope it can be done, then they see it can be done then when it is done, all the world wonders why it was not done centuries ago." -Frances Hodgson Burnett

Indeed, this is the adage which comes to our mind when we contemplate or deliberate upon the emerging concept of Technology Mediated Dispute Resolution (TMDR), which is, as of now, difficult to define but impossible to remain silent. It is pertinent to understand that law is not only to be viewed as a means but as a means to an endJUSTICE. The dilemma in which all eminent jurists, distinguished scholars and noted academicians sail is that if we get justice after 20 long years of litigation-can it be still called justice. Is there any other choice? Indeed the Alternative Dispute Resolution, popularly known as ADR, an effective tool to ensure justice. The word technology, a Greek derivative, according to the Merriam and Websters dictionary means that which begins with a need and ends with a solution. As rightly worded, Technology Mediated Dispute Resolution is a process whereby the parties agree to resolve the dispute through ADR with the aid of technology such as online technology and other communication technologies such as cellular telephones, radio frequency devices, videoconferencing technology and satellite communication systems. This term was coined by the distinguished Professor David Allen Larson in the year 2006 in an article named Technology Mediated Dispute Resolution (TMDR): A New Paradigm for ADR. The term encompasses all potential communication technologies which Online Dispute Resolution (ODR) fails to acknowledge. This may even be called

Internet Dispute Resolution, Electronic Dispute Resolution, Electronic ADR, Online ADR. These well structured procedures have been devised to afford easy access to justice without undue delay and at a lesser cost by which the parties can participate in resolution of their disputes. ADR procedures have, thus, emerged as distinct alternative to court system. Hence, the epithet alternative has been used.

BACKDROP It is now widely acknowledged that our litigation system is deteriorating under massive litigations and requires drastic spring cleaning but not by minimising the role of our courts, especially the superior courts, which play an incredible role in the promotion of the rule of law. Generally speaking, except litigants who stand to gain by delaying the process of justice, others do not enjoy taking recourse to litigation that consumes innumerable number of years and considerable amounts by way of expenses. This is true of all types of cases. Threw is always a great rush for interim orders of courts. Not many in India can afford litigation. This state of affair makes people cynical about the judicial process, often subjecting it to ridicule. Where do we go from here? What then are our choices? As burgeoning arrears in the courts, rising costs of litigation, and time delays continue to plague litigants, many countries of the world have institutionalized ADR programmes. These programmes operate both on voluntary and mandatory basis. The two most common forms of ADR are arbitration and mediation. However, with the advent of technology, another paradigm of ADR has come to light, known as Technology Mediated Dispute Resolution.

NEED OF THE HOUR- TMDR With the advent of Globalisation and rapid increase in International trade and commerce, the problem which stares directly in our eye is the resolution of disputes at the International forum as Globalisation of trade obviously involves greater potential for generating International trade disputes. What is pertinent is that not only the resolution must be effective but also time-saving rather than consuming as the international business community looks for prompt, economical and fair conflictresolution mechanisms. Therefore, there is a crying need of a dispute resolution forum. Negotiation, conciliation, litigation, and arbitration are well-known conflict-resolution devices and it can be best served if it is aided by technology. Further, the internet has brought before us several challenges to the legal system which need to be met. As technology progresses, the laws must try to keep pace with it otherwise we may incur implementation hassles. Indubitably, the courts have always tried and are keeping pace with technology to the farthest extent possible which has led to the birth of Technology Mediated Dispute Resolution. The TMDR procedures consist of negotiation, conciliation, mediation, arbitration and any array of hybrid procedures, including mediation and last offer arbitration, minitrial, med-arb and neutral evaluation. This emerging concept is run under the aegis of Internet Corporation for Assigned Names and Numbers (ICANN).

THE UNDERLYING PRINCIPLE OF TMDR The mentor of the term David Allen Larson has elucidated the opportunities and dangers which are inherent in technology. He firmly believes that Alternative Dispute Resolution (ADR) practitioners and theorists must study how individuals are progressively using technology to communicate. Therefore, those practitioners and

theorists must also determine how those technologies can be integrated into dispute resolution processes most productively and fruitfully. He enunciates three distinct reasons why we need to approach technology in this manner; Firstly, teens and preteens, who soon will be adults, rely heavily on technology to communicate and we need to become competent in those technologies; Secondly fuel prices continue to rise and technology allows us to communicate effectively without incurring travel expenses; and Thirdly security concerns certainly have made physical travel less convenient and perhaps less safe. As it has been deliberated earlier that TMDR includes as well as expands upon the potential for problem solving offered by Online Dispute Resolution (ODR). Parties which are communicating online, which nowadays is very common, can send e-mail, meet in secure online chat rooms, employ instant messaging to engage in real-time online conversations, exchange messages on list servers, stream video or videoconference with each other to harmoniously resolve the dispute. Some thinkers still use the term ODR even when online communication is used in combination with more traditional offline forms of communication such as fax, telephone, and standard mail. There are other terms which are widespread for its usage to represent the same concept but with slight variations, such as computer mediated communication (CMC) and information and communication technologies (ICT). Larson, while recognizing and distinguishing the nuances of these terms, suggests the use of technology mediated communication (TMC), and thus technology mediated dispute resolution (TMDR), as the term that embraces various technological options available today for communicating and resolving conflicts, as opposed to solely focusing on one channel, such as online communication.

INTERNATIONAL SCENARIO We have no other choice but to rigorously and quickly devise effective alternative options like the Technology Mediated Dispute Resolution to litigations to ease the present weight of judicial business. Ofcourse, India is not the only country which is buffeted by arrears of court cases. Even the developed countries such as United States of America and the United Kingdom suffer from this problem, albeit on a lesser scale. The USA has introduced and following its inspiration, several countries, including Australia, Canada, Germany, Holland, Honkong, New Zealand, South Africa , Switzerland and the United Kingdom have been keen to introduce this approach what is popularly known as Technology Mediated Dispute Resolution (TMDR ) to arrive at a negotiated understanding with a minimum of outside help through technological advancements. The primary object of TMDR is avoidance of vexation, expense and delay and promotion of the ideal of access to justice for all. In other words, the TMDR system seeks to provide cheap, simple, quick and accessible justice. The desirability and necessity of encouraging TMDR on a large scale is hardly in dispute. The European countries have adopted the small claims procedures which is a middle ground between formal litigation and ADR limited to a particular jurisdiction. The European Commission has produced a regulation for a European Small Claims Procedure (ESCP) which allows the use of new technologies in transferring information and evidence between the courts of the different member states.

ONLINE DISPUTE RESOLUTION- A THIN DIFFERENCE Online dispute resolution is defined as any method of resolving disputes arising from online or offline transactions by using online technologies and innovative techniques to facilitate the resolution of disputes. Online methods of dispute resolution sprang from

the need to find quick and cheap ways of resolving disputes arising from a large number of small value online transactions. It principally includes resolution through negotiation, mediation or arbitration. ODR has developed from the synergy of ADR and ICT, whose polished version is TMDR. They are especially applied in those cases where the traditional methods have been rendered inefficient or unproductive. The technology used is often referred to as the fourth party in the dispute, thereby emphasising upon the implausible role it plays. Sometimes the so called fourth party may also oust the third party as is in the case of automated negotiation.

SCOPE OF TMDR TMDR is an emerging field, which can be applied to a diverse range of disputes like the interpersonal disputes including consumer to consumer disputes or marital separation; to court disputes and interstate conflicts. It can be most useful in International trade disputes where the parties are located at miles from each other. Each and every process is mediated through technology including the initial filing, the neutral appointment, evidentiary processes, oral hearings if needed, online discussions, and even the rendering of binding settlements.

METHODS OF TMDR There are primarily two types of methods like Consensual Methods and Adjudicative Methods. First, we shall throw light on consensual methods.

Automated Negotiation Automated Negotiation is chiefly used for economic settlements for claims in which the liability is not challenged and the technology takes over negotiation. It includes 'blindbidding' services which is a type of auction mechanism where some or all information about the players' bids is hidden. It is further classified into Double Blind Bidding, which is a method for single monetary issues between two parties where the offer and demand are kept hidden during the negotiation, and Visual Blind Bidding, which can be applied to negotiations with any number of parties and issues where the willing to accept is kept hidden from the parties. Assisted Negotiation Assisted Negotiation technology does not replace rather assists the negotiation process between the parties just like a mediator to provide the parties with specific (evaluative) advice and to reach an amicable agreement. It improves the parties communications through the aid of a third party or software. The best and the most popular classification of the aforementioned method is Square Trade or mediated negotiation. Its services have also been availed by the renowned eBay and PayPal dispute resolution services. Adjudicative Methods These methods involve Online Arbitration whereby a neutral third party (arbitrator) delivers a decision online or through any other technology known as an award which is final as well as and binding on both the parties. The imperative examples under which it is adopted is the New York Convention and the E-Commerce Directive. The interested parties may download claim forms, the submission of documents through standard email or secure web interface, the use of telephone hearings. Another significant example is the Uniform Domain Name Dispute Resolution Policy (UDRP).

THE INDIAN SCENARIO: WHAT DOES IT REVEAL In India the origin of ADR could be traced to the origin of political institutions on the one hand and trade and commerce on the other. Dr. Priyanath Sen in his book The General Principles Of Hindu Jurisprudence has given an exposition of the dispute resolution institutions prevalent during the period of Dharmashastras. TMDR is in its infancy stage but has not been formerly recognized in India. With the enactment of statutes like the Information Technology Act, 2000, Arbitration and Conciliation Act, 1996 and amendment in the Code of Civil Procedure, 1908 ADR has gained ground and can be said to be ingrained in the legal system of India. Further, ecommerce and e-governance have also been given a formal and legal recognition in India. The Arbitration and Conciliation Act, 1996 is in place that is satisfying the harmonised standards of UNCITRAL Model (United Nations Commission on International Trade Law).

ADVANTAGES OF TMDR The advantages of TMDR are several. First, it may confer maximum advantages on the parties; it can be used to reduce the number of contentious issues between the parties; and, it (except in the case of binding arbitration) can be terminated at any stage by anyone of the disputing parties. Second, it can provide a better solution to disputes more expeditiously and at less cost than litigation. It helps in keeping the dispute a private matter and promotes creative and realistic business solutions, since the parties are in control of the TMDR proceedings. TMDR procedures take only a day or a few days to arrive at a settlement. Third, TMDR programmes are flexible and are not afflicted with rigours of rules of procedure. Fourth, the freedom of the parties to litigation is not affected by TMDR proceedings. Even a failed TMDR proceeding is

never a waste either in terms of money or time spent on it, since it helps the parties to appreciate each others case better. Fifth TMDR can be used with or without a lawyer. A lawyer however plays a very useful role in identification of contentious issues, exposition of the strong and weak points in a case, rendering advice during negotiations and over all presentation of his clients case. Sixth, TMDR procedures help in the reduction of the work-load of the courts and thereby help them to focus attention on the cases which ought to be decided by the courts. Seventh, TMDR procedures permit parties to choose neutrals who are specialists in the subject-matter of the disputes. This does not mean that there will be a diminished role of lawyers. They will continue to play a central role in TMDR processes; however, they will have to adapt their role to TMDR requirements. Most importantly, it is in pace with changing times and requirements of the individuals.

PEN DOWN Technology is an effective tool, which can improve dispute resolution processes as it saves both the parties the money, effort and time. Furthermore, there are various individuals who prefer technology mediated communications rather than face to face exchanges. The black and white truth remains that, indubitably, technology allows parties to preserve communications, review them on demand, and perhaps correct or further explain those communications. It is important to encourage TMDR as it is extremely vital for the growth of e-commerce. Most importantly, it helps ensure JUSTICE which is the primary goal of every legal institution.

Equal justice for all is a cardinal principle on which the entire system of administration of justice is based. It is so deep rooted in the body and spirit of common law as well as

the civil law jurisprudence that the very meaning that we ascribe to the word justice embraces it. We cannot conceive of justice which is not fair and equal, which is given to one and denied to another. This ideal has always stirred the hearts of men since the dawn of civilization and so far as Anglo-Saxonlegal history is concerned, we find it manifested in the earliest laws which continually directed that justice be done alike to rich and poor. It is imbedded in Indian ethos of justice dharma equally. It was asserted it the charter of liberties of Henry II and it received its classic statement, its most glorious enunciation, in the fortieth paragraph of magna carta, where it is inscribed:

To no man will we deny, to no man will we sent, or delay, justice or right

We must start the exhortation made by John F. Kennedy when stated boldly: Let us never negotiate out of fear but let us never fear to negotiate. It is the same resolve that is sound foundation of the International Centre for Alternative Dispute Resolution (ICADR).

REFERENCES PRINT MEDIA

P.C.Rao & William Sheffield, Alternative Dispute Resolution, Ed. 1997 reprint 2007, Universal Law Publishing Co. Pvt. Ltd. David A. Larson, Technology Mediated Dispute Resolution (TMDR): Opportunities and Dangers, 38 U.TOL. L. REV. 213, 214 (2006). P. Cortes, "A European Legal Perspective on Consumer Online Dispute Resolution" (2009) 15(4)Computer Telecommunications Law Review,p.90-100 J. A. Garca lvaro ,"Online Dispute Resolution Uncharted Territory", Ed. 2003, The Vindobona Journal of International Commercial Law and Arbitration, P. 180. T. Schultz ,An Essay on the Role of Government for ODR. Theoretical Considerations about the Future of ODR, Ed. August 2003, ADR Online Monthly ,p. 6. R. Morek "The Regulatory Framework for Online Dispute Resolution: A Critical View", Ed.2006, Rev. 165. D.A. Larson, Technology Mediated Dispute Resolution (TMDR): A New Paradigm for ADR, (2006) O. Rabinovich- Einy Technologys Impact: The Quest for a New Paradigm for Accountability in Mediation, Ed.2006, Harvard Negotiation Law Rev.258.

ELECTRONIC MEDIA http://www.legalserviceindia.com/articles/article+2302682b.htm http://www.merriam-webster.com/dictionary/technology http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962595 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=944932 http://www.lexvidhi.com/article-details/technology-mediated-disputeresolution-130.html http://perry4law.com/ODR/index.htm http://adrcentre.in/articles.html