The Transforming Landscape Of Dispute Resolution: Online Mediation And COVID-19

COVID - 19 has been posing challenges to every imaginable aspect of our life. Businesses have either shut operations or are forced to embrace digital transformation by working from home. This does not mean that the scope of disputes arising in the society has diminished. On the contrary, the pandemic has brought with itself a unique set of disputes. Most businesses/people might find themselves unable to fulfil their obligations which were consented to without the contemplation of the existence of a pandemic. This will inevitably lead to disputes between the parties.

Although, the courts have started hearing matters through Video Conferencing, it can cater to a very small number of important and urgent cases. Given the nature of backlogs that Indian courts suffer with, it would impossible for courts to speedily dispose cases through Video Conferencing. In the backdrop of these circumstances, online mediation amongst other forms of Non-Adjudicative Online Dispute Resolution (ODR) services, assumes prominence as an indispensable tool for parties who want a speedy dispute resolution in times of this crisis. Online mediation refers to a non-adjudicative method of mediation where parties to a dispute do not have to be present at the same location. In the current scenario where entire country and almost half the world is under a lockdown; this is a cost-effective and essential option for the parties.

With almost 40% of India's population having access to the internet, ODR services have greater accessibility in comparison to F2Frmodels of dispute resolution. Given the lack of last mile connectivity issues associated with ODR, everyone with access to a device with an internet connection can have access to ODR services. The 'Digital India' campaign, will certainly increase mass to access internet in India. Hence, keeping in mind that anyone with an internet connection can avail the services of ODR, it makes sure that justice is truly available for all and does not exclude people on the basis of their geographical location, literacy, or economic status. The outreach of these services is huge and the possibilities are endless.

This article aims to briefly address the benefits and challenges of online mediation. It additionally lays down key action points that a mediator must follow during online mediation.

What are the Benefits of Online Mediation?

1. Time Efficiency

The most apparent benefit of Online mediation is the fast pace at which it can offer solutions to complex disputes. Online mediation beats not only litigation in terms of the speed but also traditional physical mediation, due to no requirement for travel to a common destination. Further, in traditional face-to-face proceedings, the attendance of a number of people is required at a particular time, in a particular place. For instance, in a simple two-party dispute, the parties whose attendance is mandated by the law are: the applicant, his/her lawyer, the respondent along with his/her lawyer, all the necessary witnesses, and the Judge along with his/her readers and bailiffs. Thus, for example, in a case that relates to dishonour of cheque, generally around a dozen of people have to carve out time from their schedules and be present at a specific place for the trial at the notified time. With the changing scenario and with ODR mechanism the presence of all of the required persons can be achieved through online mediation, in a hassle-free manner. Different people can present their part of the stories at different points of time and not have to be present at the same place at the same time for the process. Further, in an online mediation, the flow of the proceedings is not affected whenever caucus is required as the mediator can caucus with either or both the parties privately. Moreover, unlike the traditional mediations where the mediator communicates with one part privately while the other party waits for the next stage or their turn, herein the idle time spent by the other party is effectively reduced.

2. Cost Efficiency

There are other benefits to eliminating the requirement of travelling to the place of trial; decrease in the cost of litigation owing to a lesser time consumption to resolve the dispute and no loss of income or livelihood due to vast amounts of time investment in the trial. These factors contribute a great deal in making the ODR processes cost-efficient and the only feasible option for people involved in disputes pertaining to small sums of money.

3. Easy Storage of Data in Digital Form

Recording of cases in a paper-format might have served the judicial system well for too long, but there some grave issues with this method continuing in the current paradigm. The amount of space that paper-work takes, the difficulty of navigating through these files, the lack of ease of finding exactly what you are looking for within these files, the amount of money spent on purchasing paper and printing on it, the lack of data backup in case of any unforeseen circumstances, and added to that is the environmental hazards that are the grave concern of this century. All of this construe a necessary reality check that dictates that paper storage of cases is not a practical and feasible method of recording this information. And online mediation provides a much more efficient alternative by storing data in a digital format- a function that eliminates all of these grave issues.

However, such storage of any information may additionally bring about confidentiality concerns. Only those documents and information that the parties expressly consent to, must be stored in digital form.

4. Choice of language

Due to globalisation and vast cultural differences around the world, it is often seen that disputes arise between parties who speak and understand different languages. With the use of online mediation all the proceedings can be translated in any number of languages that parties are comfortable with since all the proceedings are conducted on an online platform and are often typed. The recent technological advancements of translation software might also lend itself as an auxiliary tool, making it possible for an online mediation platform and a neutral third party to administrate a procedure that permits the parties to speak in their own languages, thus, ensuring more comprehensive and clearer communication. The same is adopted in Latin America where the proceedings can happen in either Spanish or Portuguese.^[1]

In India, such a mechanism can help people speaking different languages and resultantly have a barrier in communication, to settle disputes in the language of their preference and comfort. Mediators might also find it useful to be trained in cultural psychology in this aspect, as gestures, phrases and expressions have different cultural meanings associated with them.

What are the challenges faced by Online Mediation?

1. Lack of Personal Touch

Alternative dispute resolutions such as mediation, negotiation, arbitration etc. were created to facilitate personal interaction between the parties instead of going through the lengthy process of litigation which involves numerous other players. However, ODR mechanisms involve interactions through digital medium; this means that no face-to-face interactions take place. The lack of such personal interactions does not allow the parties to know about various characteristics of the opponent, such factors often play an important role in alternative dispute resolutions as they provide the parties with an opportunity to crack the best possible deal in a given situation. Creating an atmosphere in which the parties trust the mediator to help them reach a resolution of their dispute is considered vital, if not indispensable, by most mediators. Further, it helps parties to listen and understand concerns, empathize with each other, vent feelings and confront emotions, which is considered an important part of mediation.

Further, the lack of direct communication often makes the parties uncertain about the legitimacy of such dispute resolution mechanisms.^[2] Additionally, communications online do not express the variable tone, pitch and volume of the participants and cannot transmit personalities or physical cues and this lack of personal interaction builds psychological barriers that may seem impossible to navigate, for both the parties and the mediator. ^[3] .

There have been arguments that lack of personal connection can make it difficult for the mediator to exercise control over the parties.^[4] In the online world the mediator merely becomes a superficial presence than a person who can control the interactions between the two parties. Therefore, this becomes a huge disadvantage in the implementation of Online Mediations.

2. Confidentiality

A key characteristic of mediation that makes it a preferred option for many parties is the freedom to have a frank and honest discussion since the conversation remains confidential. The major issue of solving disputes online is that it creates digital footprints. Online platforms have the ability to store and record the data of the mediation session. This could potentially enable a party to print out and distribute e-mail communications easily and without the knowledge of the other party. This may hinder the development of open and honest exchanges in online mediation especially in matters that involve discussions of business secrets and mediations involving personal family issues. The parties can also easily disclose the details of the settlement by creating copies of the online interactions that take place to reach such settlement.^[5] Additionally, cyber security concerns pose a considerable threat to the confidentiality requirement of the parties. We need platforms which keep transparency in the process and maintain confidentiality in sessions.

Dedicated online platforms

In ODR, there is a need for customised online platforms which can implement the entire process seamlessly, right from the beginning of the process including sending invitation to mediate, signing the agreement to mediate, conducting and scheduling sessions, exchanging communication and signing of settlement agreement. Conducting virtual meeting is not enough for ODR. In the case of ODR, there is no physical interaction^[6] and the technology is deemed to function as the 'fourth party' which an automated process expert and therefore acts as a 'Digital Administrator'. Customised platforms include the mechanism for Assisted Negotiations, Automated Negotiations and Online Mediation.

Recently, concerns regarding the safety of the Zoom Video Conferencing service have surfaced as a major hurdle in confidently conducting online mediation. Therefore, in order to avoid such safety concerns, parties must use customised and dedicated online platforms of certified and trusted mediation institutes where after the completion of the session, the association takes the responsibility of erasing the relevant data. For instance, the Indian Institute of Arbitration and Mediation has established the 'Peacegate' App (www.peacegate.in) which follows all the required protocol to ensure safety and conidentiality. Similarly, Juripax^[7] and The Mediation Room^[8] are a few of the websites providing these services. In assisted negotiation and automated negotiation sphere, Square Trade^[9] and Mordia are reputed companies. Therefore, parties are encouraged to approach certified and verified mediation platforms.

The Adaptative Role of a Mediator in Online Mediation

The role of a mediator in an Online Mediation is fundamentally same as that in an offline setup, i.e. to facilitate conversation and flow of information; however the way it is implemented in an online setup slightly varies from an offline one. There are some added responsibilities that a mediator has in an online mediation like equipping themselves with the appropriate knowledge of the technology platform that they are using for their process along with maintaining the highest standards of confidentiality by adoption best practices. For example, using more reliable platforms which can maintain all cyber protocols with the GDPR guidelines of data protection and privacy. Additionally, the body language of the mediator, the mediator's speed of delivery of the speech, choice of words, tone used, physical demeanour and even the background setting must be such that it helps parties establish trust with the mediator.

Mediator should be trained in techniques of online mediation and should know how to use digital empathy and digital intelligence; otherwise the users will lose interest on the entire process

It can be challenging to control a conversation remotely as opposed to when all the parties to a dispute are in the same room. Hence, getting used to such scenarios and using effective methods such as separate rooms on video conferencing and setting stricter ground rules can go a long way for the mediators to effectively mediate. Practitioners fear that technology might replace them in due course, but the fact is that practitioners who equip themselves with technology will replace practitioners who remain averse to use of technology in their practices due to a wide range of benefits of the use of technology.

Conclusion: The way forward

The crisis caused due to the outbreak of novel corona virus has disrupted our everyday life, in manner that has undoubtedly proved this pandemic to be the most serious catastrophe of our times in all aspects including public health, economy, welfare and livelihood. It is unclear as to how long the pandemic will last and therefore it is important that a safe, cost effective and convenient method of online dispute resolution is devised. However, there are confidentiality concerns which the mediators and parties should be cautious about.

It's high time for professionals from IT industry and dispute resolution professionals come together to innovate and invent some of the most effective dispute resolution tools that can be an answer to the current problems of dispute resolution. It is important that mediators in India recognise the importance of the use of technology and make the most out of that it has to offer. Mediators will have to educate themselves and the parties about the use of technology and ones who are successful in doing so will see a future with endless opportunities lying ahead of them.

Views are personal

(Iram Majid, IMI certified mediator Hague, and MCIArb. She is Director of the Indian Institute of Arbitration and Mediation, Secretary General for International Federation of Mediators (France), Trustee of Shanti Marg Foundation and an Ambassador of International Brazil Arbitration Mediation and Conciliation centre (IBRAMAC). She is trained in Mediation from Indian institute of Arbitration and Mediation, cochin. She is trained in Advance mediation and negotiation from Harvard Law School and Pepperdine university USA. She has undergone the online dispute resolution training from London (UK). She may be contacted at iram.majidadv@gmail.com)