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| Mediation - Online Dispute Resolution Method |
Online Dispute Resolution through Mediation
One of the things that we learned from the pandemic is that the virtual way of working is here to stay and for the better only.
Now that the whole world is coming back to normal, we cannot simply go back to our old way of living. During the pandemic, we witnessed our judicial system adapt to the virtual model by conducting hearings via video conferencing.
It was not a novel thing for the ADR processes to come online as well. However, as people became more willing to adapt to technology, the number of platforms providing online dispute resolution services also increased.
The disputants are liking the idea of resolving their disputes from the comfort of their homes through ODR processes such as online or virtual mediation.
In this article, I will take you through the various stages involved in an online mediation process and how mediation as an ODR process can benefit the disputants.
Online Dispute Resolution-ODR
ODR is dispute resolution through online mode. Mr. Colin Rule defines ODR as the “use of information and communications technology to help disputants find a resolution to their disputes”. Therefore, when any grievance redressal process or ADR processes such as arbitration, mediation, or conciliation come online or are conducted through online/virtual modes, it is called ODR.
In an ADR process, usually, there are three parties involved, namely, the claimant, the respondent, and the resolutionary(arbitrator/mediator/conciliator).
But in an ODR process, there are 4 parties involved, the fourth one being the technology. Technology allows the parties and the resolutionary to participate in the dispute-resolution process from any part of the world and bypasses the need for physical presence.
It will not be wrong to say that with ODR swift, convenient, and affordable
dispute resolution may become a reality soon.
ODR is being used for resolving various kinds of disputes including
business-to-consumer disputes, matrimonial disputes, insurance claims,
IP-related matters, etc.
Mediation as an
Online Dispute Resolution-ODR Process
Mediation is an alternative dispute resolution process wherein the parties arrive at a settlement of their dispute, through the assistance of a mutually selected impartial neutral i.e. Mediator.
It is pertinent to note that, unlike arbitration and other ADR processes, the decision-making power in case of mediation, rests with the parties.
The mediator assists the parties by acting
as a link between them, by playing the role of a catalyst and moderating the
whole process.
When
mediation is conducted through online mode, it is called online
mediation/virtual mediation/E-mediation.
Online Dispute Resolution through Mediation process/workflow
Submitting the dispute for mediation by signing up on an ODR platform or online mediation service provider.
The
first step in an online mediation process is registering your case on an ODR platform. You need to create an account on the ODR platform and thereafter fill
in your details, and details of the dispute. In case, only one party has signed
up on the platform, an intimation or request is sent to the other party to
mediate the dispute. If that party agrees, then he or she is called upon to
register on the platform, fill in the details and file the response.
Appointment of Mediator
Once
the parties have agreed to mediate their dispute, there are two things that are
possible:
a) A list of mediators empanelled
with the ODR platform can be shared with the parties as per the subject matter
of their dispute. The parties can mutually decide upon the name of the mediator.
b)The ODR platform can help the
parties to appoint a mediator as per the subject matter of their dispute. If
the parties agree to the mediator assigned by the platform(automatically or by
any other means as per the subject matter expertise), the said mediator is
appointed for the particular dispute.
Uploading and sharing of documents
All the documents including the settlement agreement are shared through emails or stored on cloud storage accessible by both parties and the mediator.
Communication/Online Sessions
The mediator can conduct sessions as per the convenience and consent of the parties including via chat, video conferencing(chat rooms and breakout rooms). The online mediation sessions can be conducted in the following two modes:
- Synchronous: Synchronous communication refers to one-on-one conversations wherein parties interact with each other in real-time. For example, via virtual meetings through video conferencing.
- Asynchronous: Asynchronous communication refers to communication that doesn’t happen in real-time i.e. parties do not need to be present or communicating at the same time. For instance, through emails or SMS. Parties can start, pause and respond to the conversation at their own pace.
Settlement
When
the parties arrive at a settlement of their disputes, the mediator reduces the
same in writing.
E-Signing
Once
the parties approve the document, the parties and mediator are required to
e-sign the settlement agreement.
Some must-have skills for an online mediator
Active listening
In
a virtual environment, understanding what a party is saying often becomes a
challenging task for a mediator. Thus, the mediator must always listen
carefully to what the parties are saying and must make an effort to ensure that
what he understands as the party’s point of view is exactly what the party
intended to communicate.
Building trust/digital empathy
A mediator must ensure that the parties feel heard throughout the mediation
process. The mediator has to see that both parties are comfortable in talking
and expressing their feelings. He must build trust and a good rapport with the
parties.
Language and speaking skills
What the mediator says and how he says it impacts the parties and their level of participation in the mediation. A mediator should use affirming language and phrases that encourage the parties to share their sides of the story.
For instance, phrases such as “Thank you for sharing that '' or “We are already making good progress” may create a positive environment wherein parties feel free to communicate with the mediator and with each other as well.
A mediator should not use language that compromises his neutrality or that can be
misinterpreted.
Reframing
Reframing
is a technique to re-frame or re-word what a party has said more
constructively. It helps the parties to view the matter or situation from a
different perspective. Mediators are trained to use this technique of positive
reframing to help parties understand what truly matters to them.
For
example, A and B are two neighbors who have opted for mediation. The dispute
relates to the constant loud music that B keeps playing in his house.
During
the mediation session, A says, “Before B came to live here, we all had peaceful
lives' '.
Now,
an ideal mediator should reframe this sentence positively.
For example, the mediator should answer- “So, if I understand correctly, you want to live in a peaceful neighborhood and for you, it's not the same as it used to be'' or “You want to resolve this dispute so you can start living a peaceful life again”.
Caucusing
Caucusing means having private conversations with each party to the dispute. In an online mediation, both parties must be given equal opportunity to go into caucus with the mediator.
A caucus allows parties to speak freely and share their views with the mediator. Whatever the party shares with the mediator in a caucus has to be kept confidential.
To maintain neutrality, party A must be aware of the
fact that party B has gone into caucus with the mediator this number of times
and vice-versa.
Brainstorming
Brainstorming is a technique for generating creative ideas and solutions. This is an important skill used by mediators to expand the options for settlements.
In a brainstorming session, the parties are encouraged to come up with imaginative solutions for the settlement of their dispute.
At this stage, only the possible
settlement options are generated without assessing their realisticness or if
they are workable. As the number of possible solutions increases, the chances
of a settlement also become higher.
The brainstorming process assumes vital importance in the sense that it allows the parties to take control of the process and feel empowered.
The mediator must
decide whether he wants to brainstorm with both parties or with one party at a
time. The mediator should set out some rules regarding the brainstorming
session and encourage the parties to come up with win-win solutions.
Tools required for successful online dispute resolution through mediation
Successful online mediation requires nothing but a good mediator and two conflicting parties who are willing to resolve their dispute over a phone call or a zoom call.
However, when technology steps into any dispute resolution process, the parties might find it difficult to adapt to the same. Also, there are various issues that need to be addressed such as confidentiality of the process, the convenience of parties, storage and access to information, etc.
Therefore, some tools that help in conducting a successful online mediation are
necessary, which are provided as follows:
- A smartphone/laptop with a microphone and camera
- A secure and strong internet connection
- Secure and end-to-end encrypted video conferencing platform(for example Zoom).
- Cloud-based storage for ensuring that parties have access to all the documents at all times
- Test conferencing and audio conferencing back-up
Benefits of online dispute resolution through mediation
Cost-effective and time-saving
Online
mediation saves your time and money. You need not spend hours traveling to
reach the mediation centre or pay for the traveling costs of lawyers or
witnesses etc.
Convenience
Parties
can join the mediation sessions from the comfort of their own homes. Online mediation surpasses geographical limitations.
Adaptable and flexible process
The
online mediation process is more flexible than traditional mediations since
parties are not required to reach a particular place to attend a session.
Validity and recognition of e-settlement agreements in court-Online Dispute Resolution through Mediation
Although there is no explicit provision that talks about the recognition, legality, or enforceability of e-settlements arrived at in a virtual mediation per se, still there is enough to point towards their recognition in a court of law.
The
settlement agreements arrived at as a result of private mediation are
enforceable as contracts. The e-settlement agreements digitally signed by the
parties are enforceable in the same manner. Such a position flows from Sections
3 and 4 of the Information Technology Act, 2000 which provide
legal recognition to electronic records and electronic signatures.
Conclusion- Online Dispute Resolution through Mediation
The fair conclusion is that the future of online mediation is bright.
Since the field of ODR is ever-evolving and prone to challenges, proper laws and regulations to ensure security, confidentiality, and privacy protection during the ODR processes including online mediation are very much needed.
Moreover,
the confusion surrounding the legal enforceability of the outcomes of these
processes also needs to be resolved.
