Mediation, real or virtual

Re-examining resolution of disputes in post pandemic India.

Our civil society is hardly complete without effective and timely dispute resolution mechanisms. Prior to the coronavirus pandemic we had several traditional and non-traditional choices when it came to conflict resolution. Although this virus has brought economies across the world to a grinding halt, it seems as if most of our support systems have also failed us to some extent. While blame is being freely thrown around, and “jugaad” is being discussed, this lockdown definitely gives us some time to introspect. “How have our systems failed us?”

There are different answers if we look at different spheres; in some sectors the lockdown is possibly more to blame than our systems; let’s look at healthcare systems for instance, where the nature of the spread of this virus being unprecedented, the massive infrastructure requirements were unanticipated. No one saw this magnitude of a calamity coming. However, if we look at dispute resolution systems in India, we certainly must look a little deeper before answering this question. In a country with over 32 million pending court cases with an average wait time of 17 years from start to finish, and not even counting the huge number of ongoing arbitration cases, can we really blame the virus for justice not being dispensed today?
Courts have shut across the country for nearly three weeks, may be more, thereby burdening our courts even further into the future. While this lockdown was indeed unforeseen, can the same be said about the existing millions that are pending? Which brings us to a slightly different question, “If justice delayed is justice denied, then were our justice delivery systems working?” It is safe to say that dispute resolution scenario in India has been far from perfect, and with the existing pendency, and with the resultant near-impossibility of enforcing contracts, our position on global indices such as Ease of Doing Business, are also suspect.

This pandemic has been described as a portal into the future, depending on how we choose to respond when its all over: do we step back into the same old routine that brought us here or may we understand our weaknesses and make efforts to strengthen them? If we do adopt the second route, we will need to identify frailties from within our existing systems and processes.  

Litigation is the status-quo for dispute resolution, it is currently the most popular dispute resolution mechanism in India and is fraught with problems – its costly, time consuming, being adversarial it destroys pre – existing relationships and courts cannot provide relief that is not mandated by law. While these are textbook drawbacks of most adversarial processes, they are particularly exacerbated in India, where access to justice is already a monumental challenge for all, especially for the underprivileged sections of the society.

Mediation is akin to an assisted negotiation where a trained mediator helps parties find solutions to a conflict rather than pass a verdict. Mediation is not new to India, it finds its roots from references in the Mahabharata to references in Indian legislations including the Consumer Protection Act, Code of Civil Procedure, Insolvency and Bankruptcy Code, Companies Act and Commercial Courts Act. The Supreme Court even mooted an “Indian Mediation Act” last year.

As a process, mediation helps parties identify underlying common interests they may have, to resolve their problem. It seeks to facilitate parties to arrive at a settlement best suited to their needs, and if parties are not happy with the solution they can decline and move away, – the mediator holds no power or authority over the parties. Given this unique mutuality inherent in mediation, it doesn’t come as a surprise that studies in USA show that parties are in fact more likely to follow a mediation settlement than a court decree. Examining other parameters on which we can test mediation, it is important to note that through mediation, disputes in India have been resolved in as quick as 126 minutes! Being a voluntary process and one which strikes at the core of the conflict, mediation has the potential to save relationships, time and money.

Moreover, given the flexible nature of mediation and welcome absence of rigid templates, mediation takes place regularly in the online environment through video conferencing and even through calls. India has several mediation centers both annexed to the courts and highly reputed private Mediation centers that provide these services. If we can have the possibility of resolving conflicts from the confines of our home, what better time to give it a shot than during this unprecedented lockdown which restricts any kind of movement?

The looming fears of a recession, the growing uncertainty and panic – all these are factors that lead to more and more of conflicts that will eventually burden our already distressed court rooms. We need to think beyond, we need to innovate, and we must do things differently. As more and more of legacy systems fail us and newer crises befall us, we need to push our boundaries and script novel pathways for the future. Virtual online mediation is not the only solution, but it must become our preferred choice, because it promises the parties a chance to take control of their conflict, and maintaining social distancing at the same time, and in the process also save carbon emissions! Mediation is a great leveler of rich and poor, large and small, powerful and weak. This is how man will resolve disputes and mitigate conflicts in days to come.

Sumit Banerjee, Chairman, Advisory Board of ASAPP Info Global Services. He holds B.Tech. (Hons.) from IIT Kharagpur, Former Vice Chairman Reliance Infra and Cement, Former CEO and MD ACC. He is presently Member of Managing Committee of Bombay Chamber of Commerce and Industry.

Rashika Narain, 4th Year, B.A. LL.B. (Hons.), WB National University of Juridical Sciences (NUJS), Kolkata. Rashika can be contacted at: Contact: +91 95389 07743 or rashika.95@gmail.com | rashikanarain@nujs.edu. Rashika is a lawyer based out of Mumbai and is actively engaged in advocacy to promote mediation in India, including efforts to introduce a mediation legislation.