CLA News / International Webinar on “POST COVID MEDIATION- CHARTING THE PATH OF THE FUTURE.”
International Webinar on
“POST COVID MEDIATION- CHARTING THE PATH OF THE FUTURE.”
(Resolving instead of Adjudicating)
Date: 12 September, 2020
Hosted By: Supreme Court of India Mediators, the Commonwealth Lawyers Association and the Youth Bar Association of India.
The event commenced with an introductory address by Abha R. Sharma, Advocate, Mediator, Member Gender Sensitization Internal Complaint Committee, Supreme Court of India. She welcomed the guests and panelists for the day, Hon’ble Ms. Justice Indira Banerjee, Judge, Supreme Court of India. Hon’ble Ms. Justice Hima Kohli, 1st Puisne Judge, Delhi High Court. Hon. Lady Justice Joyce Alouch, EBS, CBS, former Judge & First Vice-President, International Criminal Court, The Hague. Erstwhile Judge of the Appeal Court, Kenya; and, International Mediator. Bertha Cooper-Rousseau, Council Member CLA, ICSID Arbitrator, pioneer for the development of the legislative infrastructure for Mediation/ADR in The Bahamas, Managing Partner of Rousseau & Cooper Law Firm. Nadja Alexander, Director, Singapore International Dispute Resolution Academy (SIDRA) at S.M.U; Member, International Advisory Board for the Global Mediation Panel, Office of the Ombudsman for United Nations Funds and Programs. Rebecca Clark, Leading Mediator in London and an Associate at IPOS Mediation. Gunavathi Subramaniam, (Malaysia), Seasoned Mediator & Trainer, Lecturer on ADR for the LLM Program at the Faculty of Law, University of Malaya. Nandini Gore, Advocate and Senior Mediator, Supreme Court of India, Moderator for the day. Asha Gopalan Nair, Advocate & Senior Mediator, Supreme Court of India, delivering Vote of Thanks for the day, and the attendees from all across the world, to the 2nd Edition of International Webinar on “POST COVID MEDIATION- CHARTING THE PATH OF THE FUTURE.” (Resolving instead of Adjudicating).
Abha invited Bertha Cooper-Rousseau to give a welcome address. She gave a glimpse of the history of the Commonwealth Lawyers Association and briefly discussed its experience in the field. Nandini being the moderator took over the session and invited Nadja Alexander. She discussed in detail the Singapore Convention on Mediation, 2019 and its role as a ‘Game Changer’. She mentioned its signatories and discussed it’s need. A survey was conducted by SIDRA, asking the uses of international dispute resolution, which revealed many important factors like ‘Enforceability’, ‘Impartiality and ‘Cost’. She compared the Singapore Convention on Mediation, 2019 to the New York Convention and the Hague Convention on Foreign Judgement. The Singapore Convention on Mediation has now come into force and now puts forth the ‘Framework for a Mediation Ecosystem.’ She discussed the top ten factors of the Convention like, Courts’ attitude to and relationship with Mediation, impact of commencement of mediation on litigation limitation periods, and many others. She concluded her note by saying that Mediation’s diverse culture will rise as a blooming era in the future.
Nandini then invited the next speaker, Gunavathi Subramaniam, Who talked about the Mediation Act, 2012 in Malaysia. The Act and its enforcement were being looked forward to, but when it was enforced, it raised many eyebrows, due to multiple drawbacks. It was applicable in various institutions and in Private Mediations, specifically excluding court-annexed mediation and also excluding the Legal-Aid department. It was not applicable to a vast category of cases like revision, prerogative writs, injunctions, etc. She discussed some of the faulty sections. Post Covid, online mediation commenced in Malaysia for the first time. A new act by the name of “Temporary Measures for Reducing the Impact of Coronavirus Disease, 2019 (Covid 19) Act 2020” was released with specific purposes. This act is officially the first piece of legislation highlighting mediation post pandemic, which makes this a very important statute. She believed that mediation should be moved forward in the future and this Act is an evidence for the same.
Moving further Nandini invited Hon. Lady Justice Joyce Alouch. She said Workplace Mediation is basically dispute resolution at workplace, for a fair and reasonable dispute resolution for the mediating parties, which often arise due to various mindsets. The parties mostly stand on different hierarchies in the companies, which creates imbalance in their powers and might cause an uncomfortable atmosphere, where either party might feel neglected or suppressed and might not be able to discuss the problem properly, which is taken care of by the mediator. The senior staff of companies are trained by courts for workplace mediation, and are called the elected officials. Whether a dispute requires workplace mediation or not is decided by the HR department of the company, after researching about the problem. The complainant party shall convey to them if it is interested in mediating, after which the HR department selects a mediator. The mediator contacts the two parties and organizes individual meetings with them prior to the mediation proceeding. The ground rules are explained to be followed which can be modified according to the situation. He maintains the matter’s confidentiality throughout and aims at speedy dispute resolution. Once the final agreement is made and signed, the path to closure is followed. The mediator is evaluated by the parties, whose evaluation is then kept with the company’s HR department. Justice Alouch then discussed that mediation has yet not been coded in Kenya and then explained its status in other African countries as well, before concluding her address.
Nandini now handed over the floor to Rebecca Clark. She highlighted how disputes have increased worldwide during the pandemic. She discussed how it had been made clear in U.K. that the courts will not be able to function in the same manner post pandemic as they did earlier. Mediation is being seen as a very effective and reliable mode of dispute resolution and is best suited for commercial disputes. It is mostly used at the dispute’s initial stages which sometimes strengthens the relationship between the parties. During litigation, the control over the problem as well as over law is lost sometimes due to various factors. Mediation opens various alternatives to the parties, allowing them to have a say in the final decision. It has effectively been able to get rid of many of them in a very short span of time and is being promoted in U.K. to be followed post pandemic. She concluded by saying that the pandemic shall hopefully help the era of mediation bloom well.
Nandini invited Bertha Cooper-Rousseau. She started by discussing mediation’s impact in the Bahamas. Prior to the outbreak of pandemic, everything was still like the sea before the storm, which was incapable of sensing the problem yet to come. It was decided to implement a mediation programme in the Bahamas by the Commonwealth Lawyers Association. A working committee was formed eventually, for developing the ADR legislative mechanism there. Eminent guests were invited further to support the initiative. The main question, ‘Whether the women mediators of the Caribbean will be empowered enough post Covid’, was addressed through this programme. The answer is a big yes. Caribbean women will open new dimensions for mediation, post the pandemic and will be able to mediate disputes very effectively post the pandemic.
After listening to these eminent legal luminaries on various topics, Nandini welcomed the Guest of Honour, Hon’ble Ms. Justice Hima Kohli. She began by talking about how old and deep-rooted the mediation mechanism has been and the extent to which it has developed over the years. The Supreme Court of India took the initiative to recommend mediation as a suitable alternative for resolving disputes. Due to the challenges brought by the pandemic, court proceedings have recently commenced online under the name of Online Dispute Resolution (ODR). The legal fraternity has been quick in responding to this due to which, we have pretty much shifted to a virtual platform entirely now. Presently the Delhi Mediation Cell has been conducting about 25-30 sessions every day since June, further discussing the accessibility and benefits of ODR. She further discussed the procedure backed by her opinion, thereby concluding her address.
Finally, it was time for the chief guest who had been waiting and listening to all the panelists patiently. Nandini extended a wonderful and warm welcome to Justice Banerjee and highlighted some of her important judgments, gathering the attention of the attendees. Justice Banerjee firstly appreciated the Delhi Mediation Cell and the Bangalore Mediation Cell for their efficiency in the pandemic. She threw light on the history of mediation and highlighted the fact that ways to deliver speedy justice and promote mediation are being pondered about since a long time. But it was thought most about and used a lot during the pandemic situation as it was most accessible and effective during this time. Multiple disputes have risen of various kinds due to various reasons, which Justice Banerjee discussed in detail and how mediation has proved to be highly effective in all these disputes. It was proposed to start regular proceedings and put a stop to all kinds of virtual proceedings, which was not a wise option. Initially, various concerns were raised while starting with virtual proceedings but the situation has now improved a lot and adjudication has now come to stay for a while. She elaborated on mediation’s benefits over adjudication. Since mediation can be used to resolve disputes of almost all kinds, the courts can give time to settling cases which cannot be resolved by mediation like, constitutional cases, compoundable criminal offences, etc. Justice Banerjee concluded her note by saying that mediators should have persuasive traits and should follow the basic ethics of mediation as it is one of the most upcoming future alternatives.
With such an effective and informative address by all the panelists, it was time to conclude the session by proposing a vote of thanks to all those who have been instrumental in making this event a grand success. Nandini finally rested her part by welcoming Asha Gopalan Nair, to deliver the vote of thanks. Prior to her address, Asha requested to play a special message sent by Rt. Hon’ble Baroness Patricia, Scotland, the Secretary-General of the Commonwealth. She was not able to join the day’s session. She shared her view on the same and highlighted how beneficial mediation is. She concluded by saying that mediation will definitely chart a part of the future, thereby adopting resolving instead of adjudicating. Followed by her address, Asha delivered the vote of thanks, marking the end of the successful session. Needless to say, though it was all women panel, but it could not have been successful without the involvement of all men who played a prominent role in the success of this event. All credit to the Supreme Court Mediators for making it a grand success.
Mr. Rakesh Khanna, Senior Advocate and Mediator, Mr. J.M. Sharma, Senior Advocate and Mediator, Mr. Rajiv Dutta, Senior Advocate and Mediator, Mr. R. Santhanakrishnan, Advocate and Mediator have been the backbone and the torch bearers of this innovative learning by promoting Mediation. Lastly, All thanks to Mr. Sanpreet Singh Ajmani led Youth Bar Association for its technical support. The series would continue and will be back soon with some more learning and innovations.
Click here to view the CLA Secretary General address the issue
Authors: Aditi Bansal, Muskaan Bansal and Rahul Kumar
Students of the Law College, Dehradun.
Faculty of Law, Uttaranchal University