The Landscape Of Virtual Alternative Dispute Resolution Proceedings In Africa

  • Josephine Wairimu
  • 27 Nov, 2020
The Landscape Of Virtual Alternative Dispute Resolution Proceedings In Africa

As seen during the COVID-19 pandemic, several jurisdictions have embraced technology in dispute resolution proceedings. This includes the introduction of electronic case filing platforms and the adoption of virtual hearings geared towards seamless service provision in the administration of justice. This shift comes as an inflection point, to challenge the old structures and consider the implications of this “new normal” from a practical, technical and legal standpoint. This will enable us to create formidable structures to ensure access to justice for all in furtherance of the Sustainable Development Goal 16 on Peace, Justice and Strong Institutions.

Virtual Proceedings whilst not defined in statute relates to the conduct of proceedings through a virtual (i.e. technology based medium) which may involve tools such as video conferencing technology and live chatrooms. Virtual proceedings enable parties to a dispute to participate in the proceedings remotely (i.e. from any location) and enables the sharing of information via online mediums. Virtual Proceedings as an emerging trend, is not expressly regulated. However, different institutions globally have attempted to provide guidance on virtual Alternative Dispute Resolution (ADR) proceedings for and to make recommendations on the adoption of virtual hearings. Such guidance notes include the Chartered Institute of Arbitrators Guidance Note on Remote Dispute Resolution Proceedings; United Nations Commission on International Trade Law Technical Notes on Online Dispute Resolution; and Africa Arbitration Academy Protocol on Virtual Hearings in Africa. This article will focus on the practical, technical and legal facets of virtual ADR proceedings in Africa as the new normal.  

Legal considerations

Data Protection: These are measures to safeguard virtual hearings in order to ensure the security, privacy, and protection of interactions and information exchanged in virtual proceedings. In Kenya the Data Protection Act, requires persons processing data to inform individuals the purpose of the data requested. Anyone providing data has the right to have the right to be informed of the use to which their personal data is to be put; to access their personal data; to object to the processing of all or part of their personal data; to correction of false or misleading data; and to deletion of false or misleading data about them. This should ordinarily be provided in the website Privacy Policy or Terms and Conditions. Furthermore, the recording of legal proceedings should be expressly prohibited in order to safeguard the confidentiality of the parties which is a key feature of ADR. See more in our ADR Guide and ODR Guide.  

Enforceability of the Dispute Resolution Agreement: A distinct feature of ADR processes is that the parties are required to enter into an agreement which allows them to pursue an ADR mechanism for instance mediation or arbitration. The invalidity of this agreement may render the subsequent ADR process as null and void. In cases of virtual proceedings, a clause allowing for such virtual interactions should be incorporated in such agreement to regulate the modalities of the proceedings. Also, this clause should allow for the dispute to be electronically administered especially in instances where the parties utilize an external Online Dispute Resolution Platform for dispute resolution processes. See more in our ODR Guide.

Equal Access: The introduction of virtual proceedings should favor due process and the equal treatment of parties in accordance with the Constitutional Rights and Freedoms. This ensures that each party is given its reasonable and fair opportunity to present its case through virtual proceedings. This would ordinarily translate to the availability of such technologies to the general public and the right to access information and be trained on how to use these technologies to one’s benefit. This is especially the case in informal settlements, rural or marginalized areas where such technologies may not be easily available for use. Governments could create technology hubs in different court centers to allow for virtual ADR proceedings, thus facilitating access to justice. Furthermore, in cross-border dispute allowance must be made for parties to present their case to the tribunal considering the difference in time zones.

Technical Considerations

Technological Infrastructure: This includes the availability of sound internet connectivity and the technology apparatus (i.e. computer laptops or tablet devices). Reliable infrastructure will assist in greatly reducing costs and increasing efficiency of proceedings. As stated earlier, the introduction of technology hubs in different court centers would assist greatly in promoting virtual ADR proceedings. This would help in decreasing the case backlog in the court system. Furthermore, the creation of Online Dispute Resolution software applications for ADR processes will assist in the growth of virtual ADR proceedings and its adoption in mainstream society. For instance, the European Union has established an Online Dispute Resolution Platform for Consumer Disputes vide Regulation (EU) No 524/2013 on online dispute resolution for consumer disputes. 

Security Concerns: In conducting virtual ADR proceedings, various cybersecurity measures need to be implemented protect the interactions which include auto-generated passwords, end-to-end encryption keys and double verification/authentication. These measures assist the parties to protect sensitive information shared during the virtual proceedings. Whilst these measures are not 100% guaranteed, parties need to be sensitized about the importance of confidentiality and advanced security protocol in instances where there is a security breach such as hacking of the system. See more in our ODR Guide.

Practical considerations

Technology Literacy: This refers to an individual’s understanding of using, creating or managing resources on a digital media and their ability to communicate through the same media. According to a study conducted by the World Bank, only 50 percent of countries in Africa have ‘computer’ skills as part of their school curriculum, compared to 85 percent of countries globally[1]. This implies that a majority of the population do not possess the required skills especially those in informal settlements, rural or marginalized communities. Therefore, the introduction of virtual ADR proceedings will necessitate trainings and awareness on these technologies. Furthermore, the development of such technologies should contain a user-friendly interface to encourage faster adoption and widespread usage.

Mindset/Culture: Albeit the swift adoption of mobile telephony in the African Continent, there is still a huge gap in the adoption of e-government and legal technologies in various legal processes. A vast majority of legal institutions in the African continent rely on manual systems to conduct legal proceedings. The adoption of and investing in such technologies by governments, businesses and institutions would strengthen and facilitate access to justice that is affordable, swift and convenient for all. This would also assist in the reduction of case backlog in the court system.

Conclusion

It has become increasingly necessary to design efficient mechanisms for resolving disputes virtually and through the digital devices. Virtual Alternative Dispute Resolution is a product of alternative dispute resolution and the advent of the technology age. This has birthed the branch of Online Dispute Resolution allowing for virtual dispute resolution. In light of the above, there are several strides to be made in implementing robust virtual systems in mainstream court and alternative dispute resolution proceedings. However, despite its disruptive nature, technology provides an avenue for convenient, swift and affordable dispute resolution irrespective of physical or geographical boundaries thus facilitating access to justice.