Mediation in the Age of COVID­19

Context: The COVID­19 has provided an opportunity to move towards online mediation, away from traditional proximity necessitating adversarial system of adjudication, but with caution.

Challenges to the current system of adjudication

• Impact of COVID: As now proximity spells danger, judges, and lawyers have been deprived of their natural sittings and move towards virtual courts. 
• Justice must not only be seen to be done but also seen to be done through judges engaged in tasks.
• Adversarial System: Binary solutions in the form of a win-lose verdict have adverse impacts on the losing party.

A case for Online Mediation: 

• Polar Opposite of court process: as it focuses on achieving consensus between the parties to come to an amicable agreement 

• Confidentiality ensured: 

• Closed-door communication guaranteed confidentiality, focusing on uncovering interest and elicit suggestions from each stakeholder.
• Provides cocoon of safety: to the participants in cases where emotions run high and face to face confrontation may increase the conflict. (For E.g. Matrimony and family businesses.)

• Rapidly gaining ground: Legislation has given way to legal structures; judges are enthusiastic about it and lawyers are relieved of the current adversarial system.
• Convenient and Cost-Effective: Parties do not have to bear costs, do not have to travel, do not have to wait for long, and can avoid multiple visits to mediation centers.

• The new rash of webinars shows that it is easy to bring people from different locations on to one platform.

• Inherent flexibility and adaptability: allow it to be carried out even during exigencies like COVID.

Caution against Online Mediation:

• Confidentiality can be compromised:  since hearing could be recorded.
• Service providers have to be vigilant and rule to penalize participants for breach should be devised.
• Technical glitches: should be minimized and internet service must gear up for providing uninterrupted feed with clarity.
• Exclusion of underprivileged: Since much of the population can’t afford the Internet or devices, such exclusion will tantamount to the denial of justice.
• Weaker parties must be assisted and enabled to avail of this facility.

Conclusion: 

Lady Justice, sword in one hand and eyes blindfolded, has been pretty much like the Rock of Gibraltar, ensuring stability, but also being resistant to change. Online medication in the wake of the pandemic is the change that will maintain the stability of the adjudicatory system.