Context

• In the prevailing conditions due to the COVID-19 pandemic, deprived of their natural setting of the courtroom, judges and lawyers have fallen back to talk of virtual courts, so that the bare essential is achieved — the judge being able to hear the particular lawyer.

• All other features of the courtroom are avoided, and thus an essentially public setting is converted to a closed door one.

• The editorial talks about “mediation” as a tool for dispute resolution in the age of COVID-19 pandemic. What is mediation?

• Mediation is an informal, but structured settlement procedure. It is a form of alternative dispute resolution, resolving disputes between two or more parties.

• A mediator is employed to facilitate and assist parties in reaching an amicable dispute settlement.

• The role of the mediator is to assist the parties in reaching a negotiated agreement.

 • Unlike an arbitrator, the mediator is not a decisionmaker. Details:

• Conventional litigation and arbitration are vintage, spanning hundreds of years and generations of judges and lawyers.

• As a process, structured mediation is relatively new, with an existence of barely two to three decades in India, and just a few more worldwide.

• Legislation has given it the legal structure and safeguards, and provided the assurance that the courts will implement mediation agreements.

• India’s judges have been enthusiastic embracers of this process.

• Online mediation will enable the mediator and the parties to assemble together, each on their computer screens perhaps hundreds of miles away.

• Discussion can be guided, giving parties and lawyers the opportunity to put forth their views. Advantages of mediation:

• Mediation is becoming increasingly popular as people begin to observe the benefits of settling outside of court.

• Mediation saves resources and time for all parties involved as well as the judicial system.

• Parties do not have to undergo adjournments and multiple visits to the mediation centre.

• It is the polar opposite of the court process. It tries to achieve consensus between parties to come to an amicable agreement, rather than the win-lose verdict of the adversarial system.

• It focuses on uncovering interests, and eliciting suggestions from the parties themselves for practical solutions to end the dispute.

• At its core is confidential discussion between mediator and parties, and between mediator and individual parties.

• As much as the essential attribute of the formal justice system is the open courtroom hearing, mediation’s essence is closed door communication with its guarantee of confidentiality.

• Eliminating complete contact that is possible only in face-to-face meetings, will certainly be of benefit in cases where emotions run high and face-to-face confrontation may increase the conflict.

* That happens often in matrimonial cases, and in family business disputes, where tempers and emotions arising from frayed domestic situations and settings can edge out sensible business logic.

• In the present context, mediation as an alternative dispute resolution mechanism has an inherent flexibility and adaptability. Concerns: Online mediation has a host of advantages, but also bears some cautioning.

• Confidentiality can be compromised since hearings could be recorded.

• Technical glitches and interruptions in the internet services could hinder the effectiveness of the mediation process.

• There are concerns that online communication will exclude the underprivileged, those who cannot afford access to Internet or do not have the capacity or assistance to use it. Such exclusion will be tantamount to denial of access to justice. Way forward:

• Service providers have to be vigilant, and strict rules must be laid out to penalise participants for breach.

• Technical glitches have to be minimised, and Internet services must gear up for providing screen clarity and uninterrupted feed.

• If the State and its Courts are going to allow and encourage online mediation to resolve disputes, weaker parties must be assisted and enabled to avail of this facility. Conclusion:

• As the entire world is meandering in the dark to find out what the new normal is going to consist of, we may well discover that a good part of the world of dispute resolution has been flipped, and that COVID-19 is the harbinger of change taking online consensual resolution to a higher level. Mediation, however, is an idea whose time has come and is rapidly gaining ground. Perhaps, this cloud (mediation) too has a silver lining.