Mediation Of Pending Court Cases Can Serve As 'Blue Ocean' For Opportunity For Start-Ups: Justice Hima Kohli

Speaking at the occasion of the foundation stone-laying ceremony of the New Law School Building of ‘Hamadard Institute of Legal Studies and Research, School of Law’ School of Law and the inauguration of CONCORDIA: National ADR Fest, 2023, Supreme Court Judge Justice Hima Kohli said on Friday, that mediation in respect of pending court cases could serve as a ‘Blue Ocean’ opportunity for start-ups to exploit.

She explained the concept of 'Blue Ocean' as a strategy that revolves around the creation of new, untapped markets where competition is minimal or non-existent. And in the context of mediation, Justice Kohli explained that this strategy could be applied to the use of Artificial Intelligence by Start-ups to offer innovative digital mediation services. 

"Start-ups that enter this untapped market with innovative digital mediation services, can potentially gain a competitive advantage over traditional mediation services. They can use these services to attract new customers and expand their business in a relatively unexplored market. Some Banks and Financial Institutions are already going that way," Justice Kohli pointed out.

However, she cautioned that the digital divide could also create a disadvantage for litigants who could not afford the technology or the services offered by such start-ups, and in order to ensure that their services are accessible to all, start-ups could offer pro bono services to those who cannot afford the expenses or to partner with the community organizations and provide mediation services to the under-privileged population.

"...the ‘Blue Ocean’ potential for Start-ups in the mediation space, will be a significant development and entities that can leverage technology and offer innovative services, have the potential to spin the traditional Mediation driven market into another dimension by creating new opportunities for growth," the judge added. 

The Supreme Court Judge was addressing the different modes of conflict resolution in the country. She noted that although the justice delivery system has traditionally been adversarial in nature, the increasing number of litigations, complexities of the disputes, the delay in adjudication, a skewed judge-population ratio, large number of vacancies, high inflow of cases, increased citizen awareness of their rights, and the enactment of new laws, all contributed towards a docket explosion that necessitated alternate modes for dispute resolution. 

The judge said that the term 'alternate' is used as a prefix to the phrase 'dispute resolution' in ADR since litigation shall always continue to be the primary mode of dispute resolution, while Lok Adalats, arbitration, mediation, conciliation, negotiation and hybrid modes like MED-ARB, and ARB-MED-ARB, are the alternate options. 

"While formal adjudicatory systems will always exist, there are some matters involving complex legal issues that can only be resolved through court adjudication. But many other disputes can be resolved through ADR without overburdening the court system. That is why, in the last decade, there has been a paradigm shift in the approach. Young lawyers, General counsels, Micro, Small and Medium Enterprises (MSMEs) and companies have been moving away from protracted court litigation towards ADR as a primary mode of dispute resolution, knowing that it can be a quicker and more economical mode of dispute resolution for their clients," she stated, while adding that the Indian justice delivery would also require a transformation with additional mechanisms incorporated to strengthen the current court system.

Justice Kohli noted that in addition to dispute resolution, ADR now includes client counselling, conflict avoidance, conflict management, and conflict resolution, thereby addressing the issue of 'Access to Justice,' by providing meaningful justice to those who are financially strained or unable to access the courts due to other barriers like geographical constraints. 

"This broader concept of 'Access to Justice' without confining it to 'Access to Courts' provides a meaningful 'Access to Justice', and it is not limited to legal aid for the underprivileged or those who are unable to afford engaging a lawyer by paying hefty litigation fees and court fees. To put it another way, 'Access to Justice' does not imply access to the judicial system. Rather, it means access to a platform that can aid in dispute resolution, with the goal of providing an effective mechanism for alternative dispute resolution," the judge added. 

The Supreme Court judge noted that it was the enactment of the Arbitration and Conciliation Act in 1996 which had ushered in a new era in the country, with the objective that with the opening of the global economy, India would become an attractive hub for foreign investments, and disputes arising from international commercial relationships would be settled in a fair, efficient an expeditious manner.

However, she added that there has been excessive and undue interference by the courts in arbitration proceedings at times, which has made the process tedious. 

"The endeavour of the courts should be to keep their hands off during the course of the arbitration proceedings or even thereafter on an award being passed. Once the parties have elected to choose arbitration as the favoured mode of dispute resolution, it is best left to the Arbitral Tribunal to decide the dispute and make an award," Justice Kohli reminded. 

She added that it would also be important to necessary to make the process cost-efficient, and that the challenges against the arbitration award would also have to be fast-tracked in order to make arbitration a viable option for parties. 

 While enumerating the main features of mediation as a mode of ADR, Justice Kohli noted that it had a host of advantages to its credit including preserving, developing and improving communication for finding out viable options to arrive at a settlement for mutual gains; developing better communication; preserving and maintaining relationships and collaborating to resolve the problems, and so on. 

"For all these reasons, it has been said that mediation embraces the philosophy of a democratic decision-making process," she said, while emphasizing that mediation was a positive step towards 'Access to Justice'. 

The Judge also lauded the cost effectiveness of mediation, since when parties are referred to court-annexed Mediation Centers under Section 89 of the CPC, no fee is payable by them to the Mediator, and the expenses are borne by the courts.

Justice Kohli also addressed at length the interesting developments in mediation, and how it is no longer confined to family and marital disputes. She stated that presently, all kinds of matters, including commercial disputes, disputes on trademarks, labour disputes, employer-employee disputes, property disputes, are all being resolved through mediation, with even corporate law practices adopting this strategy. During the time of the pandemic as well, Online dispute resolution (ODR) had kept the door open for litigants, the success of which has resulted in it being used in matters where parties cannot travel from far-off places to be physically present at the Centre to participate in the mediation process. 

Justice Kohli also expressed the hope that the enactment of the Mediation Act would give a structure and a legal framework to the entire process of mediation. 

As the benefits of mediation are aplenty, the judge went on to suggest the following measures to promote mediation culture in the country:

1. That workshops must be organized to train mediators and impart education in understanding the mediation process; 

2. That al stakeholders must be informed that mediation is a part of the Court case management system, so that the trust that they repose in the traditional court system, can be carried on to this platform; 

3. That institutions that offer such services should be recognized and encouraged;

4. That infrastructure and resources must be made available to create Mediation Centers and man them with trained mediators;

5. That lawyers must be encouraged to include mediation in their repertoire as a beneficial tool; and 

6. That the subject of ADR should be made a part of the curriculum in Law Schools.

Congratulating Hamdard Institute of Legal Studies and Research, School of Law for conceptualizing 'Concordia' and holding this National ADR Fest, Justice Kohli also suggested the establishment of a Mediation Desk on a permanent basis to celebrate the occasion, and that students be trained in conducting mediation, in a bid to promote the sprit of Mediation in the student community.