7 PM Editorial |The Transforming Landscape of Dispute Resolution: Online Mediation and COVID-19| 21st June 2020

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The Transforming Landscape of Dispute Resolution: Online Mediation and COVID-19

Introduction

COVID-19 Pandemic has brought unimaginable challenges and suffering in the society. To cope with it, businesses have embraced digital technologies and work from home culture.

This has brought unique set of challenges such as 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 dispute and thus arises the importance of online mediation.

What is Online Mediation?

Mediation is a procedure in which the parties discuss their disputes with the assistance of a trained impartial third person(s) who assists them in reaching a settlement.

The dispute may either be pending in a court or potentially a dispute which may be filed in court. Cases suitable for mediation are disputes in commercial transactions, personal injury, construction, worker’s compensation, labour or community relations, divorce, domestic relations, employment or any other matters which do not involve complex procedural or evidentiary issues.

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.

Why is the need for Online Mediation in the times of COVID-19?
  • Courts have started hearing matters through Video Conferencing but it is limited to small number of important and urgent cases. Given the nature of backlogs, it would be impossible for courts to speedily dispose cases through Video Conferencing. Thus, online mediation amongst other forms of Non-Adjudicative Online Dispute Resolution (ODR) services assumes prominence for speedy dispute resolution.
  • It is cost-effective.
  • Almost 40% of India’s population have access to internet and ‘Digital India Campaign’ further aims to increase the internet outreach. Everyone with access to a device with an internet connection can have access to ODR services.
  • Online dispute resolution (ODR) has the potential to ensure that justice is truly available for all and does not exclude people on the basis of their geographical location, literacy and economic status.
Benefits of Online Mediation
  1. Time Efficiency:The most apparent benefit of online mediation is the fast pace with which it can offer solutions to complex disputes.
    • It not only beats litigation in terms of speed but also traditional physical mediation, due to no requirement for travel to a common destination.
    • 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.
  2. Cost Efficiency:It eliminates the cost associated with travelling and decreases the cost of litigation owing to a lesser time consumption to resolve the dispute. There is also no loss of income or livelihood due to vast amounts of time investment in the trial.
  3. Easy Storage of Data in Digital Form:Paper-format involves huge amount of space for storage, difficulty in navigation through files, fear of destruction during environmental hazards and lack of data back-up in case of any unforeseen circumstances. Online mediation provides a much more efficient alternative by storing data in a digital format and thus eliminates all these grave issues.
  4. Choice of Language:Due to globalization and vast cultural differences around the world, disputes have arisen between people speaking different languages. The recent technological advancements of translation software provide online mediation an opportunity to conduct its proceedings in any number of languages that parties are comfortable with.
Challenges faced by Online Mediation
  1. Lack of Personal Touch:Alternative dispute resolutions such as mediation, arbitration, reconciliation, etc. were created to facilitate personal interaction instead of lengthy litigation process that involves numerous players. ODR mechanisms involve interaction through digital medium and poses following problems:
    • It lacks face to face interaction and does not allow parties to know the various characteristics of the opponent, which is critical to crack the best possible deal.
    • Lack of direct communication often makes the parties uncertain about the legitimacy of such dispute resolution mechanisms.
    • It creates psychological barriers in reposing trust in the mediator as mediator merely becomes a superficial presence.
  2. Issue of Confidentiality:The major issue of solving disputes online is that it creates digital footprint. Cyber security concerns may hinder the development of open and honest exchanges in online mediation especially in matters that involve business secrets and personal family issues.
Need for Dedicated Online Platforms for Online Mediation

In ODR, there is a need for customised online platforms which can implement the entire process seamlessly. Processes such as:

  • Sending invitation to mediate.
  • Signing the agreement to mediate.
  • Conducting and Scheduling sessions.
  • Exchanging communication and signing of settlement agreement.

Since, there is no physical interaction in ODR, technology is deemed to function as the ‘fourth party’ and acts as a ‘Digital Administrator’. Customised platforms include the mechanism for Assisted Negotiations, Automated Negotiations and Online Mediation.

Issues with Dedicated Online Platforms
  • Right to Privacy:Digital footprints getting stored may leak out leading to violation of Right to Privacy. In recent times, safety regarding the Zoom Video Conferencing have surfaced as a major hurdle in confidentially conducting online mediation.
  • Right to be Forgotten: After successfully conducting online mediation, the parties must have the rights to get their digital footprint deleted from the servers.

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 which follows all the required to ensure safety and confidentiality.

Conclusion

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 defined.

Therefore, 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. The mediators must recognise the importance of the use of technology and should make the most out of it.

Source : LiveLaw

Question

Critically analyse the role of technology in alternative dispute resolution methods like mediation and suggest measures to overcome the challenges faced in online mediation? (15 Marks)

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