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Exploring the Benefits and Effectiveness of Online Pre-Litigation Mediation

Alternate dispute resolution (herein ADR) refers to a process of resolving disputes without getting involved in the procedures of the court system. The ADR system can prove to be as the name suggests an alternative to the current system, that is, the traditional system or procedures used to serve justice to the people approaching the courts.

Also, there are different types of ADR mechanisms that exist but the most popular of these are arbitration, conciliation, negotiation, and mediation. This article analyses the ADR mechanism of mediation in line with the Mediation bill, 2021 proposed by the department of legal affairs working under the Ministry of Law and Affairs.[1]

Mediation And Singapore Convention

Mediation refers to the method used by parties to settle a dispute whereby they appoint a third person or persons who help them in coming to a conflict-free settlement of the dispute. The third person or persons appointed to help the parties in these cases is known as the Mediator. Now, talking about the benefits of mediation in general, it won't be incorrect to say that Mediation is a mechanism which is fast and cost effective when compared the traditional system, that is, litigation.

It is so because a successful mediation wherein there is a conflict-free settlement of a dispute by the parties, there is no winner and loser as there is no arbitral award pronounced as in cases of a court judgement. On 20th December 2018, the United Nations commission on international trade and law (Herein UNCITRAL) adopted a model law on international commercial mediation and united nations convention on international settlement agreements which are an outcome of mediation.[2]

This is also known as the Singapore convention. Also, India by signing this convention on 7th august 2019 became one of the fist signatories of this convention.[3] According to this convention, India is now supposed to form a mediation law for the purpose of enforcing international settlement agreements made out of mediation and also giving a uniform legislation for mediation in India. Also, for a country like India, it is ideal to have a formal legislative regulation approach.[4]

It is so in a formal legislative approach the mediating process is supported by legal institution, that is, executive and judiciary. In addition, such an approach would introduce a uniform law applied throughout the country and one which solves the issue of having multiple interpretations of rules on mediation framed by the various courts in the country. It would also formalize India's participation in the mediation process while also demonstrating the country's consistent approach towards alternative dispute resolution by the mechanism of mediation.

Features Of Draft Mediation Bill, 2021

On 29th September 2021 the department of legal affairs which is a department under the ministry of law and justice uploaded the draft mediation bill on its website. There were various issues with respect to the process of mediation in India due to the absence of a uniform legislation. These issues were with respect to the qualifications of the mediator, confidentiality of the proceedings and the enforcement of the settlements.[5]

The draft bill uploaded by the department of legal affairs working under the ministry of law and justice addresses these issues within some prescribed Sections of the draft bill. Firstly, Section 10[6] under chapter 3 of the draft bill talks about the appointment of a mediator and subpoint (c), clause (2) of Section 42[7] of the draft bill lays down the role of the mediation council in appointment of a mediator.

Although it doesn't specify the terms or specific requirements for the appointment of a mediator and gives the power of specification of the terms or requirements to the council, but it does provide an outline the mediation council need to follow in the process of appointing a mediator. Secondly, talking about the issue of confidentiality, the draft bill in Section 22[8] and Section 23[9] of chapter 4 of the draft bill lays down the terms of confidentiality and the admissibility and the privilege the parties have against the disclosure of any confidential terms. Also, in Section 23, the bill specifies situations in which there is no privilege or confidentiality on disclosure of issues in front of the court.[10]

This Section is in consonance with the provision for mediation of family disputes in Cyprus where the mediator is allowed to inform the authorities about issues relating to domestic violence or child abuse.[11] Lastly, talking about the enforcement of settlements, the very purpose of the bill is the enforcement of settlement agreements which are a result of mediation.

To be specific, the purpose of Singapore convention was the enforcement of agreements which were a result of mediation and part III of the draft bill lays down the provisions for the enforcement of international commercial settlement agreements resulting from mediation. So, in totality the draft bill addresses all these problems.

Online And Pre-Litigation Mediation

There are various forms of mediation as mentioned in Section 4 of the draft bill.[12] These are express mediation, pre-litigation mediation, online mediation and conciliation or an expression of similar import. In this part of the article, we'll try to focus on pre-litigation mediation, online mediation and the mixture of these two forms. Considering the number of cases pending before the courts in India, it wouldn't be incorrect to say that pre-litigation can prove to be a game changer. It is so because it'll make it mandatory for the parties to settle their cases (which are fit for mediation as mentioned in Section 7 of the draft bill) before filing a suit before the courts.

The mediator for a pre-litigation mediation can be someone agreed upon the parties or someone who is registered under the mediation council of India or court annexed mediation center or mediation service provider as provided in the provision of this bill. Now, clause (1) of Section 32 of the draft bill says that an online mediation includes pre-litigation mediation which can be conducted with the use of various computer applications and networks in accordance with the provisions of Information Technology Act, 2000.[13]

Also, online mediation should adhere to all the other provisions as mentioned in the act. When talking about online mediations, they are already in use in most parts of the world including India where there exists the Online consumer mediation center (Herein OCMC).[14] It was established at the national law school of India university, Bengaluru after getting the approval of the ministry of consumer affairs.[15] But, in case of OCMC, the cases presented before them are limited to consumer disputes. With the introduction of the draft bill, it would be easier to broaden the horizon of the issues addressed by these mediation centers which are currently limited to solving consumer disputes only.

Online Pre-Litigation Mediation: Problems, Solutions And Benefits

When we talk of broadening the horizon of the cases addressed by these mediation centers online, a few significant issues come to the forefront. These issues include the absence of emotions, proper process, unfair disclosure or leakage of the information shared online and the lack of trust or clarity in the algorithms used in deciding the cases.[16]

The issue pertaining to the absence of emotions when issues are addressed in an online setting can be addressed with the argument that the absence of emotions can prove to be very helpful when it comes down to mediation as it improves the efficiency of mediation by avoiding unnecessary interferences by the parties involved. It is also said that online mediation can prove to be suitable for cases of divorce as it provides for a cool off period.

By doing so, it can be said that mediations conducted online helps in handling these emotions better. The issue with respect to process is that an online mediation is asynchronous, that is, the dialogue between the parties doesn't happen simultaneously. But this issue isn't a very pertinent one as it can be said that even in a normal course of discussion, the discussion is asynchronous as there is only one party which speaks at a time and the conversation cannot be considered to be simultaneous.[17]

Also, it wouldn't be incorrect to say that in an online mediation structure, the technology used can provide assistance in conducting the mediation with specific rule and no party would be allowed to make disruptions. So, the online mediation process enhances flexibility and helps in following the rules and process. The third issue is in relation to the unfair disclosure or leakage of information shared online.

This issue can be addressed by having a proper cyber space or security setting for the storage of the shared information. This can be done by having an end-to-end encrypted form of platform for having conversations and there should be rules laid down in case any of the party or mediators is found guilty of disclosing the information shared during the process of mediation as mentioned in the draft bill.

Lastly, come the issue with respect to the lack of trust and clarity with respect to how the cases are settled when software's are used for mediation instead of a living being.[18] In normal consumer cases in the USA, there are sites like Cybersettle which uses software for making a zone of potential agreement between the parties involved.[19]

But, with this come to the forefront, the issue of lack of clarity or trust one can have on these software's which use different algorithms to present the possible settlement offers. In response to this argument, it can be argued that even a human being who becomes a mediator in cases can lack clarity and be biased on certain issues.[20]

Thus, it is possible to trust the former keeping in mind the pace at which technological advancement is happening around the world and in the coming times it is possible to develop algorithms which provides clarity on the point of how the decision was made. Also, there's always the option of only conducting the mediation online without using software.

The benefits that can be associated with having online pre-litigation mediations is the load on the current legal infrastructure will be reduced as cases will be mediated online before a suit is filed before the courts. Secondly, the mediation can happen at any timeslot decided or chosen by the parties. It'll also reduce the money spent in travelling to the designated locations and the money that could've been spend in taking legal recourse.

To conclude, the draft bill addresses the various issues with respect to mediation and it is also safe to say that online mediations can be as effective as offline mediations. But, in case of a country like India where mobile phones and internet is not affordable as well as accessible to every corner of the nation, it would be very difficult to bring into effect a full-fledged system of online pre-litigation mediation.

Thus, a hybrid system of mediation can be ideal for a country like India. Also, the population must be informed about the benefits of pre-litigation mediation which is cheap and quick way to settle disputes considering the issues with respect to qualification of mediator, confidentiality and enforcement of settlement agreements being addressed by the draft bill which is to be presented in the parliament.

  1. Draft Mediation bill, 2021.
  2. United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) (the "Singapore Convention on Mediation").
  3. India Signs the Singapore Mediation Convention,
  4. Rashika Narain & Abhinav Sankaranarayanan, Formulating a Model Legislative Framework for Mediation in India, 11 NUJS L. REV. 75 (2018).
  5. Ibid.
  6. Draft Mediation bill, Section 10 (2021).
  7. Draft Mediation bill, Section 42 (2021).
  8. Draft Mediation bill, Section 22 (2021).
  9. Draft Mediation bill, Section 23 (2021).
  10. Ibid.
  11. Anna Plevri, The Draft Law on Mediation of Family Disputes in Cyprus, 6 Y.B. oN INT´┐Żl ARB. 277 (2019).
  12. Draft Mediation bill, Section 4 (2021).
  13. The Information Technology Act, 2000 (Act 21 of 2000).
  14. Yuxian Zhao, Rethinking the Limitations of Online Mediation, 11 AM. J. MEDIATION 163 (2018).
  15. Ashok R. Patil & Sree Krishna Bharadwaj H., A Stakeholder's Assessment of Feasibility of Online Mediations in India, 5 IJCLP 62 (2017).
  16. Ibid.
  17. Ibid.
  18. Ibid.
  19. Ibid.
  20. Ibid.

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