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Mediation A Helping Tool During COVID-19 And Otherwise

Dr. Vinod Surana, Anshul Rawat & Parita Goyal
25 Jun 2020 5:02 AM GMT
Mediation A Helping Tool During COVID-19 And Otherwise

The spread of novel coronavirus (COVID-19) has created a pandemic, affecting all aspects of our lives by the dangers and restrictions imposed by it. The world is compelled to function virtually, which has slowed the process of ongoing disputes and increased the existing pendency of disputes in courts. As per the data of the Ministry of Law and Justice (India), there are over three crore pending cases across the Supreme Court, the High Courts and the District Courts in India.[1] In response to the government's emergency measures to help minimize the spread of COVID-19, the Courts Service recently announced a reduction in the number of court sittings by adjourning non-urgent applications. Dysfunctional communication is at the underlying principle of every conflict. Some of the main causes of disputes are issues of trust and ego, differences in the implementation of contracts and the absence of regular communication between the parties. However, sometimes it is due to economic compulsion arising out of force majeure events like COVID-19. Unless the parties to the contract act sensibly, various disputes may arise after COVID-19. The businesses need to take into consideration that COVID-19 is temporary, and maintaining the business relationship in the long term is critical for sustaining business.

Since August 2018, Mediation has been made mandatory for commercial disputes in India, under the Commercial Courts Act, 2015. Considering the existing burden on courts, including the time required for getting the justice and cost involved, businesses (especially start-ups, MSME and emerging companies) and other disputes need an alternate mechanism, which can resolve disputes at a faster pace and a lesser cost.

Under these uncertain circumstances, mediation would prove to be a useful mechanism and an excellent solution for the parties to address their disputes without going to the courts or arbitration, making use of quarantine. Even if parties do not have a Mediation clause in the agreement, parties can amicably agree to attempt to refer the dispute to the Mediation. Various technologies like Zoom, BlueJeans or Webex have proved helpful in bringing people into one room and conducting meetings. This enables the counsel, mediators and parties to access the proceedings together and has private conversations as well. Parties don't have to adjust to many changes for conducting the proceedings online because formalities, like selecting a mediator or agreeing to time and place, are performed remotely anyways.

WHAT IS MEDIATION?

Mediation is a process in which parties negotiate and arrive at a mutually acceptable resolution to their differences or disputes, through a trained professional i.e. mediator. Any settlement is recorded in an enforceable contract.[2] Because mediation is non-binding and confidential, it involves minimal risk for the parties and generates significant benefits. Additionally, parties cannot be compelled to disclose information that they prefer to keep confidential.[3] A party to a mediation cannot be forced to accept an outcome that it does not like.[4] Unlike an arbitrator or a judge, the mediator is not a decision-maker but is rather a neutral party. The mediator's role is to assist the parties in reaching an amicable resolution settlement of the dispute.[5]

The agreement reached mediation hearings have to be observed in writing and signed by both parties. With the advancement of technology, this is possible with e-signing through programs such as Clio, Adobe and DocuSign. It is highly recommended that users make these programs encrypted for security. Alternatively, the agreement can be shared via email with the parties and signed copies can be reverted to the mediator.

ADVANTAGES OF MEDIATION

1. Mediation preserves the relationship of the parties as it involves negotiation

2. It is a consensus-based mechanism with greater autonomy

3. In multiparty contracts, one issue that mostly arises is the question of joinder of parties

4. It provides access to justice, especially during these times when the courts are closed to non-essential hearings.

5. Mediation can help close the affordability gap between those who can afford the counsel and those who cannot.

6. Mediation being an informal process and negotiation between the parties across the table, takes less time as compared to courts and arbitration to arrive at the settlement.

7. There is no stamp duty or court fees in mediation proceedings. Even lawyers may also not be required in this process as parties negotiate with each other based on facts. The amount of dispute is the deciding factor for the fees of mediators and institutions conducting the Mediation. Another saving element for the parties is not having to pay travel and venue costs.

8. Some cases are better suited for a non-adversarial setting. The beauty of Mediation is that nobody wins or loses, parties mutually agree to and solve the dispute.

9. Unlike court or arbitration (unless it is agreed in the contract that arbitration will be confidential), the Mediation is private and confidential. In case parties fail to arrive at a resolution to the dispute in Mediation, during court or arbitration proceedings such discussions and negotiations between the parties are not recognized as evidence.

10. The parties may have greater availability if they do not need to travel to a central venue.

DRAWBACKS OF MEDIATION

1. Notably, the face-to-face connection of a traditional mediation can't be replicated even in a video conference. The ability to read body language, hand gestures, eye contact, etc. are lost over videoconferencing.

2. The technology could also be a hurdle given that not everyone has access to the latest tech-tools.

3. The issue of privacy is of utmost importance. Although mediators are adhering to the best practices that have been put forward in light of COVID-19, by setting unique passwords and log-in information for their virtual sessions.

4. The parties usually put their trust on the mediators after personally meeting them.

5. Internet security, confidentiality and identity verification through AI are some of the common risks involved which are beyond the control of mediators or the parties.

MEDIATION IN FAMILY LAW CASES DURING COVID-19

Over the years, various family law lawyers have argued that mediation has proved to be more efficient than litigation in disputes involving family businesses, family properties or matrimonial cases. During this pandemic, the most immediate and proficient option available to parties is mediation. The availability of platforms is diverse as it can be accessed via PCs, Macs, Android phones and iPhones. These sessions can enter a password for security as well.

Mediation has proved to be a success in family disputes because:

1. Cooperation to get a solution is better than unilateral and imposed decisions

2. A solution for one party can also be a solution to the other party

3. The decision making power remains with the parties

4. A mediator helps the parties to take emotions into account and where appropriate, to work on their relationship.[6]

5. In mediation, parties have an option to a private meeting with the mediator. This session helps to uncover the issues that parties were reluctant to discuss in a joint session.[7]

Nevertheless, cases involving domestic violence are not appropriate for mediation – both in person or via Zoom (or other similar platforms). There is a risk for survivors as they do not have attorneys physically present with them for support and some survivors are stuck in the same house with their abusers.[8] The best solution under these circumstances is to wait until the lockdown is lifted.

RESOLVING RELIGIOUS INSTITUTION DISPUTES VIA MEDIATION

Religion is usually contemplated to be part of the cultural decision-making process. Language is always important in discussing and resolving disputes, especially when religious beliefs are involved. For most of the people, faith and religion go beyond a simple belief process or practice, which extends to personal identity. The essence of mediation practice is helping people understand and possibly shift their positions and involves challenging parties' strict views from multiple standpoints. Approaching parties with respect and understanding help the mediator to get parties to move towards a resolution. In all kinds of cases, parties may be doubtful and hesitant to share private information with a mediator, but often this very kind of information allows parties to save face and provide honour. This is especially true in religious conflicts, where, the core conflict involves both personal and group identity. With effective use of alliance, religious parties can enjoy the safe space they need to share their personal stories surrounding faith and conflict.

In the landmark case of Ram Janmabhoomi–Babri Masjid dispute (Ayodhya case), the Supreme Court of India mandated for a court-supervised mediation led by Chief Justice Gogoi, backed by parties respective religious beliefs and groups. However, the mediation failed towards the end.

Some alternative for Mediators in situation of a deadlock would be to engage in techniques of negotiation, to help develop a number of imagined scenarios and possible responses from the standpoint of parties. The application of these techniques more often obliges a stubborn party to become pragmatic by looking beyond the stated position and exploring more realistic alternatives.

  • BATNA (Best Alternative to Negotiated Agreement)
  • WATNA (Worst Alternative to Negotiated Agreement)
  • MLATNA (Most Likely Alternative to Negotiated Agreement)
  • ZOPA (Zone of Possible Agreement)

Advantages of mediation for faith-based disputants:

a) There is an explicit emphasis on spirituality and/or religious identity.

b) Religious texts are utilised as a source of guidance and direction throughout the mediation gains legitimacy between parties and also promotes buy-in from both sides.

c) Religious values and vocabulary are used

d) There is a use of religious or spiritual rituals during the process

e) There is the involvement of faith-based actors as third parties.

INDIA AND THE SINGAPORE MEDIATION CONVENTION

In 2019, the Union Cabinet chaired by Prime Minister Narendra Modi has approved the signing of the Singapore Mediation Convention.[9] The Convention aimed to represent a new world, where mediated settlements are recognized and enforceable easily like an arbitral award. The convention seeks to provide greater certainty to parties to international transactions who have settled their disputes through mediation. In addition to this, signing the Convention has proved as a strategic move on India's part as it encouraged Foreign Direct Investment in the country.

While currently there may not be independent legislation on Mediation in India the fact that Mediation is yet practised in informal settings cannot be ignored. This relates to the Panchayat System widely prevalent in the rural areas of the country.[10] Furthermore, the Courts in India as per the Civil Procedure Code of 1908 vide section 89[11] and Order X (1A)[12] may direct the parties to a dispute to endeavour and settle their dispute through Arbitration/ Conciliation/ Mediation. Sub-section 2(d) of s. 89 of the Civil Procedure Code[13] provides that if the dispute has been referred to Mediation, the Court shall effect a compromise and such procedure as has been prescribed shall be followed. This along with the Mediation and Conciliation Rules of 2004 (which suffer from several infirmities) are the only relevant provisions in law about Mediation in India.

CONCLUSION

The worldwide pandemic has slowed many activities and brought others to a halt. In some sectors, the efforts to contain the spread of COVID-19 has led to new and immediate conflicts. Some of the effects created by these global crises are unstable, uncertain and alarming. Notwithstanding the current lockdown situation, the need to assist parties with resolving their disputes effectively have been of utmost importance, especially family-related disputes. Mediation can play a positive role by being a viable solution in both preventing and amicably resolving these conflicts through online platforms.

There is a high possibility that after COVID-19, the use of technology will continue, particularly in light of the flexibility, cost savings and practitioners and their clients becoming accustomed to the changing work patterns. If online mediation prevails in the long run, attorneys may begin offering a cost reduction for online mediation. Lawyers could even offer more unbundled services with mediation such as representing a client online only for the duration of the digital negotiations. This changing model integrates the traditional model of mediation with the available technology to minimize the burden of cases on courts and other dispute resolution bodies.

There are at least five participants in every mediation, including two clients, two attorneys and a mediator. However, that number grows exponentially when parties in interest are added, associate attorneys are enlisted and additional client representatives, including insurance carrier representatives, are added.

Ideally, all of the above can be handled in one set of offices through a fairly large conference room and one or more additional smaller offices to permit the different groups. That distribution of personnel, with the current pandemic limitations in force, is no longer possible for the immediate future. All of the constraints that are being placed on inter and intrastate travel and the social distancing and quarantines that we have imposed on ourselves dictate that the traditional single-site model for a mediation session will no longer work in most cases while the pandemic limitations are in effect.

India lacks on recognition and enforceability of international mediation settlement agreements, which impedes the growth of international commercial mediation. Under the New Delhi International Arbitration Centre Act, 2019,[14] the Government has approved the establishment of the New Delhi International Arbitration Centre (NDIAC) as a statutory body. Development of mediation as a means of dispute resolution will ease the burden on Indian courts that are infamous for being flooded with the backlog of cases.

The article is authored by Dr. Vinod Surana (Managing Partner & CEO), Anshul Rawat & Parita Goyal (Associate) at Surana & Surana International Attorneys. The authors views are personal.

[1] https://njdg.ecourts.gov.in/njdgnew/index.php

[2] K.V.W. Stone, Alternative Dispute Resolution. Encyclopaedia of Legal History, UCLA School of Law Research Paper 04–30, p.1

[3] B. Robert, The Natural History of Negotiation and Mediation: The Evolution of Negotiative Behaviours, Rituals and Approaches (2012). Accessed at www.mediate.com/articles/NaturalHistory.cfm

[4] Mediation secrets for better business negotiations, Harvard Law School Negotiation Special Report 7, p. 1

[5] F. Steffek, Mediation in the European Union: An Introduction (Cambridge, 2012) p. 2

[6] S. S. Silbey and S. E. Merry, Mediator Settlement Strategies, J. Law & Policy 8 (1986) p. 10–19

[7] Ibid

[8] A. S. Rau, E. F. Sherman, S. R. Peppet, Mediation and Other Non-Binding ADR Processes. (Foundation Press, 2002) p. 1–5

[10] Ankur Khandelwal, 'Assessing the Scope of Mediation in India: Upholding the Principles of Justice', Asian Dispute Review, (Hong Kong International Arbitration Centre (HKIAC) 2010, Volume 12 Issue 2) pp. 52-56

[11] Code of Civil Procedure of 1908, § 89

[12] Code of Civil Procedure of 1908, Order X (1A).

[13] Code of Civil Procedure of 1908, § 89 cl. 2(d).

[14]http://legalaffairs.gov.in/sites/default/files/The%20New%20Delhi%20International%20Arbitration%20Centre%20Act%2C%202019.pdf


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