Editorial Notes

[Editorial Notes] Pros and Cons of Online Mediation

The virtual courts can play a significant role in modernising the judiciary, speedy resolution of the pending cases, hassle free proceedings and justice delivery. Online mediation has a host of advantages, but also bears some cautioning.
By IASToppers
June 19, 2020

Contents

  • Introduction
  • What are virtual courts?
  • Mediation process
  • Advantages
  • Disadvantages
  • Way Ahead
  • Conclusion

Pros and Cons of Online Mediation

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Introduction:

Due to the lockdown imposed by COVID, starting with the Supreme Court, many High Courts and subordinate courts have started virtual hearing of the cases through video conferencing. This is done to serve justice even at these times, with the public hearing system converted to a closed door one.

What are virtual courts?

  • Virtual Court is a concept aimed at eliminating presence of litigant or lawyer in the court and adjudication of the case online.
  • In an e-court, the entire work is executed digitally, where the information that is shared and generated is stored as a database and synched to a particular software. This software can be accessed by litigants, judges and advocates.
  • In the current Covid-19 scenario facility is provided for litigants to file the complaint electronically through e-Filing and also pay the Court Fees or Fine online.
  • The litigant can view the status of the case also online through various channels created for service delivery.

Mediation process:

  • Mediation is a tool for the dispute resolution which is the polar opposite of the open room court hearing process.
  • It tries to achieve consensus between parties to come to an amicable agreement, rather than the win-lose verdict of the adversarial system.
  • At its core is confidential discussion between mediator and parties, and between mediator and individual parties.
  • It focuses on uncovering interests, and eliciting suggestions from the parties themselves for practical solutions to end the dispute.
  • Mediation’s essence is closed door communication with its guarantee of confidentiality, but with the virtual hearing there are some apprehensions regarding the confidentiality of mediation process.

Advantages:

  • 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.
  • The process is flexible as the mediator at the click of a button, move the other party and its lawyer to another virtual room.
  • The great advantage of online mediation is that it is convenient, cost-effective and an efficient use of time.
  • Parties do not have to bear costs, travel, wait long hours, undergo adjournments and multiple visits to the mediation centre.
  • It will curtail chances of face-to-face confrontation and emotional overhaul which is common during direct mediation.
  • It is easy to get people from different locations on to one platform, facilitating parties located in different countries.

Disadvantages:

  • The confidentiality of the parties involved can be compromised since hearings could be recorded.
  • Poor quality of internet connection, substandard audio and video equipment, power cuts, inability to establish real time connection.
  • Manipulation of the witness, lack of trust and confidence in the judicial process.
  • There is the apprehension 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 similar to denial of access to justice.

Way Forward:

  • Investment in IT infrastructure to facilitate access to e-courts.
  • Guidelines on the types of cases that can be resolved in the virtual space.
  • Technical glitches have to be minimised, and Internet services must gear up for providing screen clarity and uninterrupted feed.
  • Records of the proceedings should be taken care of in terms of its dissemination and service providers have to be vigilant.
  • Strict rules will have to penalise participants for breach.
  • Building confidence in virtual courts with landmark verdicts and a sense of inclusion.
  • 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:

The virtual courts can play a significant role in modernising the judiciary, speedy resolution of the pending cases, hassle free proceedings and justice delivery. It needs to be considered by the apex Court of India and the Law Commission that the video and audio enabled hearings can take place for the benefit of the public even beyond the COVID-19 period for the larger good.

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