MEDIATING AMIDST A CRISIS: Is Online Mediation a Solution for India?

-by Sandhya Swaminathan & Kartikeya Singh

With COVID-19 being declared a pandemic by the WHO, the day-to-day affairs of a common man’s life have come to a standstill with the enforcement of multiple lockdowns to combat the outbreak.  In India, workplaces and courts, being non-essential to public health and sanitation have been ordered to shut operations temporarily. However, due to rapid advancements in technology, “work from home” has been made a reality, enabling firms to continue operations remotely while giving employees the benefit of not having to be physically present at office amidst this lockdown.

Dispute resolution mechanisms in India on the other hand, have not kept up with time and technology. With the absence of any dispute resolution mechanism to run parallel to such normalcy in life and work culture, one can forecast the accrual of an enormous number of new cases, being filed in addition to the already pending massive backlog of cases that commercial courts must deal with subsequent to them resuming operations. An additional overburdening of the already burdened courts is going to result in further delay in the delivery of justice.

This, however, is not the case globally. Many countries have successfully identified and implemented online dispute resolution mechanisms that have been able to sustain their functionality even during a crisis. Online dispute resolution bridges the gap and increases access to those individuals who, due to various reasons such as, inconvenience in travelling to a common venue, the paucity of time/resources, and reservations in meeting the other party physically are unable to have any recourse to the resolution of disputes. In the light of the present COVID-19 outbreak and social distancing measures, firms abroad continue to offer their services at discounted rates, to provide to the public, access to dispute resolution from the safety and comfort of their homes.

Mediation as a dispute resolution mechanism is now globally recognised. It has also been gaining increasing acceptance and recognition in India, especially after the amendment to the Commercial Courts Act, 2015 mandating pre-litigation mediation for non-urgent cases. The authors, by way of this post, taking inspiration from global models, seek to explore the viability of implementing a model of online dispute resolution, more specifically, online mediation in India that would serve the purpose of sustaining its functionality at all times.

Process of Online Mediation:

 In the late 1990s, various start-ups began offering e-mediation services [“Service Providers”] to organizations and the general public. The companies developed a roster of trained online mediators who they would assign to facilitate online dispute resolution, primarily through e-mail.

With the advancement in technology, there are now a number of service providers like Ejudicate and Start across the globe. Service providers abroad, cater to parties looking to resolve primarily, familial or commercial disputes. Most service providers follow a standard model of mediation practice for individuals who wish to resolve their disputes remotely.

Initiating the process of online mediation once both parties agree to mediate is fairly simple. Interested individuals are required to visit the website of a service provider of their choice and self-register. As a general practice, this process of registration is quick, user friendly and typically only requires an individual’s credentials and a factual summary of the dispute, which may include questions about the parties, the sum involved and/or information about previous settlements. Post-registration, individuals are contacted by the service provider to discuss technicalities like the fee, date and time of the mediation session. Often, websites of service providers also offer free downloadable guides to interested individuals regarding the modalities of the online mediation session.

Service providers catering to the resolution of family disputes have a fairly simple modus operandi. Typically, they require both parties to have access to a stable Internet connection, a device (preferably a computer) with a camera and a microphone, and subscription to video-conference applications like Zoom or Skype in order to avail the service.

Service providers catering to the resolution of commercial disputes, however, usually provide their own applications for conducting these mediation sessions. Such applications are usually video-conferencing platforms offering high standards of privacy and security to facilitate the exchange of confidential data between parties during mediation sessions. Basic requirements like a stable Internet connection and device follow.

The process of online mediation is completely party-driven, just as in the case of traditional mediations. The individuals involved make decisions regarding the duration and nature of sessions and have the freedom to opt to have their lawyers or other interested parties of their choice by their sides. Upon the completion of said registration and fulfilment of requirements of the process, the online mediation session is typically a three-way video-conference between the parties and an expert online mediator, who is appointed by the service provider. It is ensured by the service provider that the mediator so appointed, is a qualified neutral third party with no prior association with the individuals involved in the dispute.

Implementing Online Mediation in India:

Mediation has been steadily gaining recognition and acceptance across India, with most familial and civil disputes now being referred to mediation by courts coupled with mandated pre-litigation mediation for commercial matters. With the increased usage and awareness about mediation as a dispute resolution mechanism, one is likely to assume that the implementation of the global model of online mediation in India should be fairly simple. This, however, is not the case by virtue of potential barriers to the implementation of online mediation in India.

  • Lack of Legal Recognition to Settlements Arrived at Mediation Proceedings

The very foundation of online mediation proceedings is highly reliant on clear legal provisions being made in favour of both the enforceability and acceptance of traditional and online mediation settlements alike. At present, individuals seeking to accord mediation settlements a sanction under law prefer to have it recorded as consent decrees or awards before courts or tribunals. This is not only contrary to the very purpose of mediation that of reducing the burden of courts but it also takes away the true essence of online mediations being “online”.

  • Poor Internet Infrastructure

A strong and steady Internet connection is the primary requirement for the conduct of uninterrupted online mediation sessions. With India falling short on both Internet speed and geographical coverage, this barrier may be antithetical to the promise of ease and comfort that online mediation otherwise offers.

  • Lack of Awareness and Faith of the Public

Finally, a general lack of awareness among the public regarding mediation as an effective and efficient mode of dispute resolution is likely to discourage the establishment of service providers in India owing to the potential lack of users of said services.

However, while these barriers may seem discouraging to the future of online mediation in India, it is pertinent to note that in the recent years, India has seen a phenomenal rise in the number of mediation institutions training and sensitizing individuals regarding the benefits and importance of mediation being chosen as the preferred mode of dispute resolution. One step ahead of it all are ODR startups like Presolv360 and CADRE, that have already made E-Mediation a reality in India.

While mediation institutes during their awareness workshops focus on traditional mediations, the simple inclusion of online mediations as another viable alternative would suffice to increase awareness. Offering specialised training sessions for mediators to adapt to online mediation settings, is also a key role they must undertake to further this goal of online mediation in India.

The Honourable Supreme Court of India, in the case of M.R. Krishna Murthi v. The New India Assurance Co. recognised the need for standalone legislation on mediation, an ‘Indian Mediation Act’. India recently became a signatory to The United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Mediation Convention”) on August 1, 2019. Ratification of this convention will require India to soon roll out new legislation recognising both cross border and local mediation settlements alike to ensure effective implementation of the convention. Such an implementation would bolster mediation practice and would also promote private institutional mediations (opt-in mediations). With the current mediation practice scenario in India being largely restricted to court-referred and statutory mediations, increased recognition for opt-in mediations would, in turn, result in the creation of a massive market for online mediation service providers in India to operate in.

Lastly, to circumvent the issue of the poor internet infrastructure, it is suggested that service providers offer high-speed Internet dongles to parties to facilitate uninterrupted mediation sessions.

Conclusion:

The lockdown due to the COVID-19 pandemic has shown us that a lot of the things that we imagined only doing offline can be done online as well. The future of online mediation in India is a bright one because of various reasons. The first reason being, the country just recently became a signatory to the Singapore Mediation Convention. With the present Government in India promoting online modes of everything from payment to documentation, it is only a matter of time that an online mode of mediation is put in place as well. Secondly, the fact that various communities in India have had multiple methods of resolving disputes outside courts since time immemorial just goes to show that mediation and its online counterpart will fly well with the citizens of the country. Lastly, the very benefits of online mediation make it a very attractive process. Low costs, the convenience of not having to be physically present at a certain venue, and quick and swift resolution of disputes only add to its feasibility and appeal to the people.

The views are personal.

ABOUT THE AUTHOR

Sandhya Swaminathan and Kartikeya Singh are third year students at National Law university, Jodhpur.

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