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Mediation in the age of COVID-19

Online mediation has a host of advantages, but also bears some cautioning

We live in strange times. Old certainties have given way to new uncertainties. Down the ages, Lady Justice, sword in one hand and eyes blindfolded, has been pretty much like the Rock of Gibraltar, ensuring stability, but also being resistant to change. One bug, christened COVID-19, comes along and the Lady is reeling. At the heart of the adversarial system is advocacy performed in open setting, in full gaze of clients and fellow lawyers, and that has dictated modes of thought and approach and behaviour, all integral to the system. Justice must not only seem to be done, but judges must also be seen while they are engaged in the task of doing it. But presence in numbers necessitates proximity, and now proximity spells danger. Deprived of their natural setting of the courtroom, judges and lawyers have fallen back to talk of virtual courts, so that the bare essential is achieved — the judge being able to hear the particular lawyer. All other features of the courtroom are eschewed, and thus an essentially public setting is converted to a closed door one. It is, and will remain, unsatisfactory.

A new kid on the block

There is, however, another tool in the dispute resolution armoury, which is resistant to COVID-19, and perhaps could even thrive on it. That is mediation, which is the polar opposite of the court process. It tries to achieve consensus between parties to come to an amicable agreement, rather than the win-lose verdict of the adversarial system. At its core is confidential discussion between mediator and parties, and between mediator and individual parties. It focuses on uncovering interests, and eliciting suggestions from the parties themselves for practical solutions to end the dispute. As much as the essential attribute of the formal justice system is the open courtroom hearing, mediation’s essence is closed door communication with its guarantee of confidentiality. And, important in the present context, it has an inherent flexibility and adaptability.

Also read | Calcutta HC lays stress on mediation to reduce backlog of cases

As a process, structured mediation is a new kid on the block, with an existence of barely two to three decades in India, and just a few more worldwide. Conventional litigation and arbitration are vintage, spanning hundreds of years and generations of judges and lawyers. Mediation, however, is an idea whose time has come and is rapidly gaining ground. Legislation has given it the legal structure and safeguards, and provided the assurance that the courts will implement mediation agreements. India’s judges have been enthusiastic embracers of this process. Lawyers, steeped in adversarial ways, have surprisingly warmed up to a system which is its antithesis.

Convenient and cost-effective

Online mediation will enable the mediator and the parties to assemble together, each on their computer screens perhaps hundreds of miles away. Discussion can be guided, giving parties and lawyers the opportunity to put forth their views. When separate meetings are required, the mediator can, at the click of a button, move the other party and its lawyer to another virtual room. The great advantage of online mediation is that it is convenient, cost-effective and an efficient use of time. Parties do not have to bear costs, do not have to travel, do not have to wait long hours, and do not have to undergo adjournments and multiple visits to the mediation centre. Much can be done by using this medium to get faster results.

What will be missing in this process is the immediacy, directness and complete contact that is possible only in face-to-face meetings. On the other hand, it may also be that in an online process, we are giving the participant a little cocoon of safety, when we create this grainy barrier of two screens and an intermediate world of Internet and WiFi. It will certainly be of benefit in cases where emotions run high and face-to-face confrontation may increase the conflict. That happens often in matrimonial cases, and in family business disputes, where tempers and emotions arising from frayed domestic situations and settings can edge out sensible business logic. Similarly, where parties are located in different countries, we would have done away with difficulties of distance when we adopt this mode. As the new rash of webinars shows, it is easy to get people from different locations on to one platform.

Also read | Mediation: an overlooked way to access justice

Online mediation has a host of advantages, but also bears some cautioning. Confidentiality can be compromised since hearings could be recorded; service providers have to be vigilant, and rules will have to penalise participants for breach. Technical glitches have to be minimised, and Internet services must gear up for providing screen clarity and uninterrupted feed. But above all, there is the apprehension that online communication will exclude the underprivileged, those who cannot afford access to Internet or do not have the capacity or assistance to use it. Such exclusion will be tantamount to denial of access to justice. If the State and its Courts are going to allow and encourage online mediation to resolve disputes, weaker parties must be assisted and enabled to avail of this facility.

As we meander in the dark to find out what the new normal is going to consist of, we may well discover that a good part of the world of dispute resolution has been flipped, and that COVID-19 is the harbinger of change taking online consensual resolution to a higher level. Perhaps, this cloud too has a silver lining.

Sriram Panchu is Senior Advocate and Mediator, and President, Mediators India. Email: srirampanchu@gmail.com

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Printable version | Jul 12, 2020 11:47:29 AM | https://www.thehindu.com/opinion/lead/mediation-in-the-age-of-covid-19/article31863358.ece

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