By SANGEETA MEHROTRA, Mediator-Lawyer
In terms of building Online dispute resolution (ODR) ecosystem, India is at a vantage point where the world looks to India for leadership in terms of technology. India is far ahead of the curve in understanding and having experts and decision makers within the system who know exactly what's coming around the bend.
While our courts are becoming digitized through the efforts of the judiciary, more effective, scalable, and collaborative mechanisms of containment and resolution are urgently needed. ODR can help resolve disputes efficiently and affordably.
Now everything going online – shopping, travelling, dating, marriage, divorce etc.; acceptability is not an issue anymore – Covid 19 has literally pushed us to go online, to communicate, to settle our disputes ONLINE. This is an opportunity to understand that this technology, this mindfulness of resolving disputes together in an online setting will become the norm. ODR will be the new legacy we can say coming out of this pandemic. After all, Resolution is more effective, particularly pre-litigation redress, is much more scalable and efficient in resolving cases – this we have understood. Now, we need to create awareness on a big scale.
However, there is a difference between taking Mediation into a completely process driven environment where there is no video no interface no voice exchange AND it is all done by Artificial Intelligence. Maybe the time of such robotic ODR process has not come as yet – we still prefer video conferences and voice calls where people can create digital empathy.
The ability to empathize with the other person is important. Time zone, computer screen etc. do not matter. We can continue to empathize, continue to dialogue, continue to share, and continue to learn.
Parties can see Online sittings are less intimidated, where there is no extensive travel involved; no elaborate arrangements to be made for all parties to assemble at one particular place, where they can settle disputes through communication from the comfort and safety of their offices or homes. It is easier to make the parties sit in separate virtual rooms from their respective lawyers to let them interact freely with their permission. Thus, posturing can be eliminated. But in ODR, advocates play a much greater role so as to help creating the required comfort level of parties – especially when parties are NOT corporate clients who in any case are exposed to video conferencing etc. Here I must say that when I deal with issues of small time commercial disputes regarding loan repayments, credit card dues settlements etc. I resort to a more informal approach because the borrowers generally get intimidated by a very formal business like environment. They hope for a hand-holding from the Neutral. Here, balancing act plays an essential part.
In ODR, Time schedule management is better, with proper basic tools like a larger screen and a good camera we can pretty well read parties’ emotions and body language, I mean the subtle nuances of communication.
Mediation proceedings are strictly private and confidential here in India. Section 75 of The Arbitration and Conciliation Act provides that, notwithstanding anything contained in any other law in force in India, the conciliator and the parties shall keep all matters relating to the mediation proceedings confidential, and that confidentiality extends to the settlement agreement except where its disclosure is necessary for implementation and enforcement.
Best practices dictate that in a private commercial mediation, parties to the dispute and the mediator sign a confidentiality agreement prior to the commencement of mediation proceedings.
Mediators OR the Service Providers make sure that all steps possible are taken to protect confidentiality, which are reasonable because even in in-person mediation if parties want to record they can record, if at the time of caucus the other party wants to make a phone call, he or she will. So what is essential is - A robust confidentiality agreement, I feel.
Then, typical in our culture (Like in face to face mediation, in online process also) we can see many other people accompanying the parties. It is ok. If the mediator is having the skill and ability to connect and build a rapport with the parties it is immaterial how many lawyers or family members/friends accompanying him or her AND everybody present there signs the confidentiality agreement and abides by the rules. And at the same time both parties must have the knowledge about the presence of who all are in the virtual room for equity. TRUST is an important element.
Whether it is a billion dollar stock market deal gone wrong or your spouse does not allow you to access your child or married sisters hoping to get a share to their parent’s property/legacy - everywhere emotion plays a big role. We must remember that corporate are after all run by human beings. Intrapersonal Interpersonal relations do matter everywhere. So, having emotional intelligence is very very important – the Mediator must have the capacity to read the body language, feel the air and energy around.
My own experience if I may say so:-
First, I try to make parties aware of what mediation is and then the practicality / usefulness of ODR [covid made it easier, though]; then make them feel comfortable with the process, describing the ground rules, role of the neutral. Knowing the process gives them confidence to be a part of it. All apprehensions put to rest; I go to the basics that are the Parties’ innate [human] desire to avoid disputes [at least in Indian context] AND to be HEARD. So, I listen. If I am not aware of certain terminology, acronyms etc. or for that matter how a certain commercial transaction was conducted; I SIMPLY ASK. I do not pose being at a pedestal knowing everything.
I maintain neutrality through my overall demeanour, my verbal/non-verbal communications with parties, the time and attention given to parties individually during joint sessions as well as caucuses.
I build rapport with the parties first and then trust follows automatically.
