Legal Research Methodology
Legal Research Methodology
Research Proposal
Proposed Title
The efficacy of online dispute resolution: Do online mediation and negotiation retain the beneficial traits that form the basis of present-day ADR mechanism
Abstract
With new technological advancements, the legal industry has started to facilitate and automate many processes using software and digital platforms. Also, due to the recent global pandemic caused by COVID-19, most processes and systems had to make a transition to remote settings so as to keep things running. Likewise, Alternate Dispute Resolution (ADR) mechanisms have undergone significant changes in relation to how they are conducted due to technological advancements. To be more specific, ADR techniques like mediation and negotiation started to happen online using digital platforms where the parties do not have to meet physically and can rather complete the ADR process from remote settings at their convenience. Although convenience and faster processing of ADR matters are the upsides, the downsides cannot be ignored since a lot of dependency is on technology and artificial intelligence that can pose several forms of uncertainties and eventually pose risks to the parties. For this reason, it is important to understand whether online ADR mechanisms are capable enough to meet the objectives of ADR. Concerns have also been expressed about the obstacles presented by online conflict settlement, as well as whether artificial intelligence and virtual methods of conducting dispute resolution procedures are capable of accounting for all relevant elements. Online conflict resolution is seen by some as the way of the future, but others argue that procedures like mediation and bargaining are less successful since there is a lack of physical presence and abstract human sensibility in online dispute settlement. Questions have also been raised on whether ADR mechanisms like negotiation and mediation conducted online do justice to the purpose of such ADR mechanisms. This research aims to explore the efficacy of online ADR mechanisms and evaluate whether online dispute resolution retains the benefits of present-day ADR mechanisms.
Methodology
For the purpose of this research, only scholarly and authentic sources have been referred to. Since empirical research has not been done, evidence is gathered from past studies and secondary sources and this is why the majority of the data in this study is qualitative, offering a solid framework and a consistent viewpoint for addressing a research topic. Peer-reviewed literature, books, government documents, court rulings, and quasi-judicial reasoning are the main sources of evidence. Sources that directly, indirectly, or even fairly address the research's main issue have been included to draw references and evidence for substantiating the claims and arguments forwarded. For the purpose of future research, quantitative evidence will provide us with a better knowledge of the figures and statistics about the efficacy of online conflict resolution. Since the focus of the research is on evaluating the efficacy of online dispute resolution, studies that have directly dealt with issues and challenges of online dispute resolution have been referred to understand how online dispute resolution mechanism is used to the benefit of the parties and the potential challenges. This helps in analysing whether the challenges can be addressed with specific changes to the process and eventually explores whether online mediation and negotiation are sufficiently able to justify the present-day benefits of ADR mechanisms. To increase the scope of the research, multiple jurisdictions and their status on online dispute resolution have also been explored to provide a constructive answer to the primary theme of the research. Although quantitative evidence would have helped and expanded the scope of the research, it has left for future research to explore and the present research mostly relies on qualitative evidence gathered from past studies. The inclusion and exclusion criteria have been established so that only pertinent pieces of evidence are included, ensuring the validity and value of the research. Since this research entirely depends on secondary evidence, it may be limited. Nevertheless, in order to fill the gap left by this limitation, it has been made sure that all of the referred journals are well-known and peer-reviewed, maintaining authenticity, the author's highest level of care, and good faith.
Literature Review
Benefits of Online Dispute Resolution
Online dispute resolution is expected to promote the speed at which dispute resolution takes place since every process can be made more efficient and faster. Past studies have accepted such a position while stating that an additional layer of protection was provided by the use of digital dispute resolution for those aggrieved parties who are unable to appear in person before the adjudicating body but still need the legal system to handle their case. The author also pointed out that because alternative dispute resolution procedures have been developed in a constructive way, procedural fairness and adherence to the core principles of the ADR system are preserved and ensured even in online conflict settlement. Additionally, it has been observed that the use of automation and software in negotiations allows parties to negotiate using pre-programmed alternatives and an automatic response system. According to the findings of another academic research, the goal of online dispute resolution is to broaden the use of ADR, and businesses can profit from utilising technology to settle conflicts since it can encourage creative methods of conflict settlement between parties. Considering that online forms facilitate simpler, quicker, and more efficient communication than traditional means, it is evident that experts have already recognised that online dispute resolution is a useful method of conducting ADR procedures. Hence, it should be acknowledged that online conflict resolution is an inescapable consequence of the digital era, therefore it is best to embrace the benefits and work to create regulations to mitigate the drawbacks. Since the purpose of moving to online and digital platforms is to promote convenience and quicker fix to disputes, it is essential to evaluate whether online dispute resolution is actually benefiting the parties and the adjudicating authorities.
Online dispute resolution, in contrast to most out-of-court settlements, has the potential to be a revolutionary intervention that will change the way courts deliver justice and redefine what courts, litigants, and attorneys expect from the legal system. Through the implementation of an incredibly quick and effective dispute settlement mechanism, it has promoted the e-commerce sector. The most practical way to conduct cross-jurisdictional commerce is through web-based mechanisms for communications and agreements. It further claimed that the use of automation and technology in online dispute resolution has made it a reliable means of delivering an unbiased decision on a global scale. However, another study pointed out that it is difficult to judge and determine the efficacy just yet since online dispute resolution is fairly new and is yet to be explored by judges, scholars and academicians. Therefore, whether online dispute resolution through mediation and negotiation is efficient may not be possible to conclusively determine in its current state.
Efficacy and Importance of Online Negotiation and Mediation
The primary purpose of ADR mechanisms is to facilitate speedy and efficient dispute resolution and in a country like India, where the judicial authorities are already over-burdened with matters, it is essential to promote ADR mechanisms and try to find new avenues to increase the use of ADR. In this process, the use of digital platforms and online processes in ADR processes like mediation and negotiation are reasonably expected to facilitate the overall dispute resolution process. A study noted that online dispute resolution is a crucial process for the quick and remote settlement of disagreements between commercial organisations that are physically separated from one another. This is especially true and applicable given the increased burden on the judiciary which is why quasi-judicial authorities and dispute management officials like mediators and arbitrators are required to renew the ways in which dispute resolution is done so that docket explosion can be prevented as much as possible. Without a constructive understanding of online negotiation and mediation, it would be difficult for the government, corporations, individuals, courts, and international organisations to resolve disputes faster and quicker.
Challenges of Online Dispute Resolution
The fact that online dispute resolution is dependent on technology can itself be a challenge. There can be operational difficulties as well as structural difficulties since digital platforms can involve bugs and technical malfunctions. Online mediation presents a number of operational challenges since it necessitates the use of digital tools. It is possible that some people might not be familiar with the online systems and use of digital platforms and hence might find it difficult to communicate properly. To be more specific, when it comes to mediation, the process may present an additional challenge for some parties who may not feel at ease with this specific procedure, which could make the mediation process impractical. The parties to the mediation must have access to a computer and the internet, and this requirement is even more so if they possess the necessary skills and are comfortable using these tools and platforms. In this sense, it is especially important to note how the mediators behave in this specific scenario in connection to their aptitude, ability, and unique competency in recognising these conditions and transforming this obstacle into a potentiality. The mediation process then has to be translated, which means that a third party needs to be involved in the digital process. If there are linguistic differences between the parties and the mediator, the language hurdles that still exist even with the use of digital means for dispute resolution might be very troublesome. Hence, the challenges cannot be ignored and are essential to be addressed to increase and maintain the efficacy of online dispute resolution.
Research Questions
1. Whether online dispute resolution is an effective process compared to offline dispute resolution?
2. Whether mediation and negotiation done online retain the beneficial traits that form the basis of the present-day ADR mechanism?
3. Whether online dispute resolution potentially become the common and accepted mechanism if the challenges are addressed?
Annotated Bibliography
Dewi Sulistianingsih, Alviona Anggita Rante Lembang, Yuli Prasetyo Adhi & Muhammad Shidqon Prabow, Online dispute resolution: Does the system actually enhance the mediation framework? (2023) 9(1) Cogent Social Sciences 1
The purpose of this study was to evaluate whether online dispute resolution is beneficial for mediation processes. The author found that there are certain challenges to online mediation because a lot depends on how the parties forward their arguments, however, online mediation can replace conventional mediation as the best alternative dispute resolution process and improve the overall process of ADR. The results of this study are very pertinent to the current investigation, which seeks to determine if online conflict resolution processes maintain the benefits of bargaining and mediation. Since digital conflict resolution is still in its early stages of development, it will take more time to uncover emerging issues.
Robert J. Condlin, Online Dispute Resolution: Stinky, Repugnant, or Drab? (2017) 18 Faculty Scholarship 717.
The author of the above article explored whether online dispute resolution mechanisms have been able to facilitate better decision-making in civil matters. The article concluded that dispute resolution involves specific and critical issues that may not be resolved from remote settings, but automation and digital processes can help the parties to make rational judgements to support the choices and decisions of each other. This finding is also relevant for the purpose of the current research because of the area of study and analysis presented by the author that directly answers the research questions.
Karolina Mania, Online dispute resolution: The future of justice (2015) 1(1) International Comparative Jurisprudence 76.
This article explored the efficacy of online dispute resolution in relation to the e-commerce industry and found that technology is important for ADR processes since the purpose of ADR is to save time and resolve disputes quicker which quite reasonably is facilitated by technology. The author is of the opinion that mediation and negotiation held online may not significantly improve the ADR process, however, can maintain the efficacy of the present-day ADR mechanism and provide the benefits obtained from conventional mediation. This study also directly answers the present questions of the research.
Nur Khalidah Dahlan, Ramalinggam Rajamanickam and Mohd zamre mohd zahir, Online Mediation: Issues, Applications and Challenges (2023) 5(3) Asian Journal of Research in Education and Social Sciences 81.
The author of this study focused on studying the importance of online dispute resolution and found that lack of physical presence can affect the quality of outcome and confidence of the parties. In-person communication and physical presence have a significant impact on how people speak and perceive things and therefore, online mediation and negotiation, where emotions and personal interactions have a significant impact may be adversely affected due to online dispute resolution. This study is great for understanding the potential challenges that undermine the efficacy of online dispute resolution.
Victor Terekhov, Online mediation: a game changer or much ado about nothing? (2019) 3(4) Access to Justice in Eastern Europe 33.
The author specifically focused on analysing the impact of online mediation and found that although there are criticisms, however, the efficacy varies from situation to situation and cannot be conclusively determined. But, putting aside the negatives, the upsides are very appealing for the parties which is why more people are shifting towards mediation being conducted online.
Graham Ross, Building Trust Online: How to Adapt Mediation and Negotiation Techniques to the Virtual Environment (2012) 684(7) CEUR-WS 79.
In this paper, the author examined one of the key elements of negotiation and mediation that can have a significant influence on online conflict resolution. The author acknowledged the difficulties but came to the conclusion that there might be more advantages to conducting mediation and negotiating online than disadvantages. When talking about the difficulties, these discoveries can significantly advance the goals of the current study.
Bibliography
AnneMarie G. Hammond, How do you write yes?: A study on the effectiveness of online dispute resolution (2003) 20(3) Conflict Resolution Quarterly 261.
Dewi Sulistianingsih, Alviona Anggita Rante Lembang, Yuli Prasetyo Adhi & Muhammad Shidqon Prabow, Online dispute resolution: Does the system actually enhance the mediation framework? (2023) 9(1) Cogent Social Sciences 1
Graham Ross, Building Trust Online: How to Adapt Mediation and Negotiation Techniques to the Virtual Environment (2012) 684(7) CEUR-WS 79.
Karolina Mania, Online dispute resolution: The future of justice (2015) 1(1) International Comparative Jurisprudence 76.
Noam Ebner and Elayne E. Greenberg, Strengthening online dispute resolution justice (2020) 63 Washington University Journal of Law and Policy 65.
Nur Khalidah Dahlan, Ramalinggam Rajamanickam and Mohd zamre mohd zahir, Online Mediation: Issues, Applications and Challenges (2023) 5(3) Asian Journal of Research in Education and Social Sciences 81.
Otabek Pirmatov, Online Dispute Resolution- Fasntasy or Reality? (2022) 13(1) E-Journal of Industrial Relations 140.
Rekha Pahuja, A study on challenges and efficacy of online dispute resolution system in India (2020) 3(3) A Global Journal of Humanities 1.
Robert J. Condlin, Online Dispute Resolution: Stinky, Repugnant, or Drab? (2017) 18 Faculty Scholarship 717.
Teresa Ballesteros, International Perspectives on Online Dispute Resolution in the E-Commerce Landscape (2021) 8(2) International Journal on Online Dispute Resolution 85.
Victor Terekhov, Online mediation: a game changer or much ado about nothing? (2019) 3(4) Access to Justice in Eastern Europe 33.
