*Sangeeta Mehrotra

The best way to create a successful ODR environment is to build a mindset for mediation. The need, therefore, is to build an effective autonomous ODR ecosystem of resolution options, where the private sector can generate many options to pursue redressal for different types of cases.

Presently, everything is going online – shopping, travelling, dating, marriage, divorce etc. – acceptability is not an issue anymore. As far as ADR is concerned, Covid-19 has literally pushed us to go online, and 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. We can say that ODR will be the new legacy coming out of this pandemic. After all something we have understood is that resolution, particularly pre-litigation redress, is more effective, and much more scalable and efficient in resolving cases. Now, we need to create awareness on a big scale.

However, there is a difference between this model, and taking mediation into a completely process-driven environment where there is no video, interface or 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 as being less intimidating, where there is no extensive travel involved, no elaborate arrangements to be made for all parties to assemble at one particular place, and 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 create the required comfort level for parties – especially when the 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 seek out a hand-holding role from the Neutral. Here, the 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 – by this, I mean the subtle nuances of communication.

Even regarding confidentiality, there is no issue as such. Often people express apprehension about online leaks, etc. Offline leaks are also possible. A mediator can be as good as the law allows him or her to be, and the process he or she is following stays secure and they follow the protocol.

Mediation proceedings are strictly private and confidential here in India. Section 75 of the Arbitration & 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 must 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, in my opinion. Further, typical to 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 as long as everybody present there signs the confidentiality agreement and abides by the rules. 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 corporations are run by human beings, after all. Intrapersonal/interpersonal relations do matter everywhere. So, having emotional intelligence is extremely 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 about 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.
• As a Neutral I prefer to be on everybody’s side rather than being with nobody. For me empathy means sometimes hand-holding and walking a few steps but not to make the party dependent on me.

ODR is here to stay along with face-to-face mediation, for sure. But sometimes it is difficult to get the parties on board to agree to mediate even. Here, I feel a stand-alone legislation can help. Before approaching the adjudication process, parties must be mandated to go through the mediation process through ODR. No, this does not take away parties’ voluntariness to settle. Scaling up the awareness building process at every level must be taken by our legislature and judiciary with the proactive concrete actions by the executive.

*Member of ECI’s Board of Advisors, and an empanelled Mediator at the Supreme Court MCPC; SAMADHAN, Delhi High Court Mediation and Conciliation Centre; and  BIMACC, Bengaluru