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Online Alternative Dispute Resolution in New Normal-An Age of Settlement

A major advantage of Alternative Dispute Resolution (ADR) is the ability to select your own “Judge.” Both the parties can take full advantage of the same and select arbitrator, conciliator and mediator who has expertise in the type of case, and at the same time effective to resolve the dispute between the parties. This impact of covid-19 thereby causing an unending lockdown of all sectors will definitely bring most of the parties in a table of settlement which may be best addressed by a skilled Mediator/Conciliator and an Arbitrator whom they trust and are comfortable working with. This is a crucial time for every Mediation/Conciliation and Arbitration where each side must be frank with the mediator/conciliator and the arbitrator, and communicate their goal to settle the case.

The Mediator/Conciliator and the Arbitrator will try to work to reach out a goal to be beneficial for all sides. An advocate addressing the case for his client has to bring a definite solution within a limited time in order to successfully settle the case. The Mediator/Conciliator and the Arbitrator shall be trustworthy enough to consider equitable settlement between the parties.

Selection of Mediator/Conciliator and the Arbitrator on case to case basis shall be done keeping in mind the background of practice of the Mediator/Conciliator and the Arbitrator. If you are not personally familiar with a suggested mediator/conciliator and the Arbitrator, research it with your colleagues as to whether the Mediator or the Arbitrator effective? A Mediator/Conciliator as well as the Arbitrator should be a good listener, present the parties position well, and utilize creativity when needed to come to a consensus for settling their disputes.

For mediations and conciliations, speak with a proposed Mediator/ Conciliator beforehand. Mediators / Conciliators welcome these conversations, since it allows you to select someone you are comfortable working with. Always Submit a Pre-Mediation Brief to enable the mediator/Conciliator to learn the facts, disputed issues, and settlement posture.

For video mediations/conciliations, the Pre-Mediation Brief can simply be e-mailed prior to the hearing date to the
Mediator/Conciliator. The Brief is even more important for video mediations/conciliations, since exhibits and documents can be reviewed in advance, making the Mediator and the Conciliator more knowledgeable and effective.

Good advocates are well prepared, and believe in their arguments. In mediation and conciliation, there is no judge or jury to impress. By keeping an open mind, the mediation/conciliation is an opportunity to learn about your case, both from your adversary/opponent, and from the Mediator/Conciliator. Successful Mediations and Conciliations make a more effective advocate for the clients and resolving disputes through this mechanism develop the personal skills of and advocate to address complicated legal issues.

Video mediations/conciliations and video arbitration makes it easier for your clients to address their grievances. A client can join the meeting remotely, or go to their attorney's office to participate. Video technology allows an attorney and the client to be placed in virtual breakout rooms, where they can speak privately, while the Mediator/Conciliator and the Arbitrator speaks with the other attorney.

The sphere of virtual mediations, conciliations and Arbitrators can continue even when physical mediations, conciliations and arbitration will resume saving the carrier significant travel expenses. Even if a case does not settle through online alternative dispute resolution, it is possible to learn the opponent’s argument by recording the same, and get a simple evaluation of the strengths and weaknesses of the case. In the current lockdown situation, Law firms have mobilized their attorneys and staff to telecommute and conduct the business of the law remotely from their homes.

But the question remains:

  • What is the legal community to do with the thousands of pending cases during the suspension of court appearances and the closure of the usual court houses during this unprecedented situation of lockdown due to covid-19 infection?

Cases ready for trial are in an indefinite state of suspension. The emergency e-filling of only most urgent cases do not consider the other cases both civil and criminal which are equally important from a client point of view. The entire socio economic system will gradually collapse if Courts only give importance to most urgent cases to be listed and heard simultaneously by leaving aside other equally important cases in a situation where we do not know when ordinary functioning of the Courts shall resume in full force. Even listing of very few matters can only be done through virtual interface with limited number of Judges sitting and taking up those matters over online. Otherwise the entire current virual interface will be disrupted and result to link failure.

In India, due to this situation of continuous lockdown, it has been observed through online courts that it is not as such convincing approach to file matters through e-method system and thereafter conducting it whether it is High Court or other District Courts or Magistrate Courts or City Courts.

In most of the cases either it has resulted in link failure and some issues cropped up with some technical failure over the internet beyond the understanding of the Jury as well as the advocates due to lack of education in this regard. Suddenly adapting to an online system with no preparation beforehand and without skilled training to conduct E-Courts will result to a more insecure mode of dispute resolution system rather than having a positive approach.

Our Information Technology and securing electronic records through E-Courts and E-filling of cases are neither secure nor safe for attribution, acknowledgement and dispatch of electronic data through a secure interface. Even the Uniform Resource Locator of the E-Courts is not in a position to upload cases in bulk and start multitasking of conducting cases through online method of many numbers of Courts at one time. Thus the e-filing system is practically in a state of suspense and will be understaffed as well.

In the current situation, the combination of ADR and technology can provide an efficient and cost-effective alternative to the inertia of inaction where settlement will play a major role. All we need to be proactive by thinking outside the box. The following suggestions may be accomplished by video conferences or telephonic hearings. Mediation and arbitration have long been recognized and utilized as an efficient and cost-effective means of resolving civil disputes in a non-emergent traditional ADR since ages based on Gandhian Principles in our Indian community in
rural villages.

With continuous development of video conference technology and current situation of the closure of the courthouses, some directives through online alternative dispute resolution need to be incorporated for keeping the legal system awake. Of course, the parties can also agree to submit limited issues to an arbitrator and mediator/conciliator where there is a suitable chance of success through amicable settlement. The utility of online ADR shall also assist many advocates in these uncertain times to earn their livelihood and keep their hope in the Legal profession. Civil litigators cannot properly service their clients, nor can they make payroll, by merely pushing paper and waiting for the courthouse doors to reopen.

They need to take action to keep their cases moving and to push their cases toward resolution. Economic and social isolation is upon us. Video conference technology now allows participants in remote locations to simulate a secure virtual joint session hearing room where the attendance of all participants is known to each other. The technology also allows for the secure transmission of limited documents such PowerPoint presentations, cam-scanner documents, abode acrobat documents, word documents and photographs and the like. Submissions may be shared with, recorded and downloaded by, all participants by keeping confidentiality.

Needless to say, improvements in technology have made remote conferencing an option for attorneys and parties who cannot travel to the hearing site. Today secure video conferencing is no longer an option. It is a necessity. The transition from in-person hearings to “virtual” hearings can be seamless. As ordinarily trained in the technology, I look forward to being able to do my part in keeping the business of the law moving forward during this “new normal” with an approach of settlement through ADR in which we live.

Indeed, the utilization of this technology during the coronavirus crisis may be the only option for the legal community to move ahead with the business at hand. To support our system, our internet world is flooded with huge number of sucure electronic applications suitable for scheduled video conferencing, web chatting, web hearing and e-learning such as Skype, Zoom, Hangout, Google Duo, Webinar and Whats APP to name the few.
So let’s welcome and start the new normal for a better tomorrow.

Penned by: Arnab Dutt - Partner and Advocate, M/s. R.L.Dutt & Co. Solicitor & Advocates
Office Address: 10 Old Post office Street, Room no. 26 & 27, Kolkata-700001
Ph no: 9830585847  

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