Resolving Disputes Using Online Mediation Techniques to Accelerate Justice System; Innovation or Norm
JESMIN AKTER:
In the wake of global COVID-19 pandemic, Bangladesh and other countries across the globe have taken strict measures regarding physical mobility and social distancing to control the rapid spread of the pandemic. Government of Bangladesh has taken initiatives to fight the Corona Virus through mandatory quarantines and other such necessary steps, therefore, business are being severely impacted and are at standstill and the Courts around the world are no exception and have responded to the COVID-19 outbreak by delaying or suspending proceedings, thereby, fundamental rights of the citizen seem to be in a perennial state of infringement to a greater extent. The reality is disputes are not quarantined and they are not going to go away, therefore, the global businesses are going to face a wave of lawsuits that will need to be resolved fast. Hence, the communication is perhaps more important now than ever. However, Technology is proving to be a successful tool, in allowing businesses to continue operating during this testing time. Despite the fact that a lot of lawyers working from home for a while longer by adapting flexible working policies to make working remotely as productive as possible. Nevertheless, the legal profession prices itself out of the market, and those need legal help looking elsewhere, and trying to find out other ways to resolve disputes.
Pandemic Response: Virtual Court in Bangladesh:
Bangladesh has been slower to adapt to these technological measures in the past. However, the COVID-19 pandemic has virtually thrust the courts into the 21st century, with as many trials and hearings as possible, now are taking place by video conferencing. Albeit untimely, Judicial Leaders and Legislature took significant step for setting up Virtual court, and duly issued the ‘‘Usage of Information and Communication Technology in Court 2020’’ Ordinance towards promoting Online Court proceedings. Accordingly, under Section-5 of the Ordinance, and subject to the Practice Directions issued by the Supreme Court of Bangladesh, the courts can conduct trial, hear applications or appeals, arguments or accept evidences as well as give order or pronounce judgment to ensure access to justice and upholding the rule of law. Despite the fact that Lawyers have started submitting urgent petitions to concerned courts as per the Practice Directions issued by the Supreme Court of Bangladesh, to conduct case hearings virtually. But the courts were closed, and Court hearings delayed for months due to ongoing pandemic. Moreover, even before the pandemic situation, the Honorable Justices of the Supreme Court were burdened with massive backlog of cases which needs to be addressed urgently. Now the pandemic, perhaps has given the judges more than they can handle since in-person proceedings are not possible. Therefore, in the context of potential and pending litigation, ADR in general and Online Mediation in particular can play a valuable role in Commercial Dispute Settlement.
Mediation in Bangladesh:
Mediation is an interest and value-based process which keeps the disputants in control and allows their Mediators to work creatively to help the disputants reach a mutually acceptable resolution of dispute. The beauty of the Mediation is that the power remain with the parties and allows disputants to resolve disputes faster and cheaper than litigation while the process maintains the confidentiality, therefore, more likely to preserve commercial relationships than courts or arbitration.
Since its emergence as an independent country, Bangladesh, developed distinctive dispute resolution mechanism, known as Shalish, therefore, in Bangladesh, Mediation is not recent phenomenon rather it is a customary practice of the informal justice system. Bangladesh is utilizing both In-court (prescribed by the legal system) and out-of-court (extra-judicial or community-based) mediation process as a “complementary method” of current legal settings. Mediation was introduced in the formal legal system of Bangladesh with the enactment of Code of Civil Procedure (Amendment) Act 2003, and Section 89A and 89B of CPC 1908 were inserted to deal with the provision of Mediation. Moreover, the legal effects of Mediated Agreement is that a settlement agreement arising from a mediation is regarded as a contract and enforceable as such by virtue of Section 22(1) of the Arbitration Act, 2001 (Salish Ain Act 2001. It is to be noted that as per Section 89A and 89B of CPC 1908, if the Mediation becomes successful, the parties are required to sign this Settlement Agreement and Mediators, lawyer will sign as witness. However, unlike a court judgment or arbitral award (where a party could directly initiate contempt proceedings and/or file for execution), Mediated Agreement must be submitted before the court which will pass a Decree. Moreover, in case of unsuccessful Mediation, the proceedings of the suits will start from the stage it has been stopped before Mediation which leads to more expense and further delays as well as in certain cases, to loss of confidentiality.
It is to be noted that there is no legal framework to enforce settlement agreements resulting from mediation there, without needing to initiate new proceedings; Therefore, it is necessary to ratify any international framework to enforce such settlement agreements. However, this legal vacuum can be fulfilled by the United Nations Convention on International Settlement Agreements Resulting from Mediation (also referred to as the ‘Singapore Convention’), which was passed by the United Nations General Assembly on December 20, 2018. By virtue of ‘Singapore Convention’, if ratified, the parties will be able to apply directly to the courts of states to enforce settlement agreements. As a result, instead of settlement agreement being treated only as a contract, it will be enforced directly by a court, with a civil suit having to be filed for its enforcement. Since, the ‘Singapore Convention’ facilitates the recognition and enforcement of settlement agreements; therefore, if Bangladesh becomes signatory state of ‘Singapore Convention’, the Convention will promote the credibility of existing mediation process in our jurisdiction for resolving cross-border commercial disputes.
Online Mediation in Action:
Mixing Mediation with Information and Communication Technology (ICT), an endeavor commonly known as Online Dispute Resolution (ODR) is very much in vogue at the moment. However, it has three fundamental features: convenience, trust and expertise. ODR mechanism involves adapting ADR techniques to the online world, especially in an international setting and conflicts of law involved. The process is open to resolve disputes through the utilization of the online communications and the term comprises electronic filing, electronic exchange of documents, e-hearings. However, ODR does not fit in every case and to determine whether ODR is appropriate for particular situation, parties must weigh a number of considerations. ODR may be appropriate for two types of disputes such as those arising from cyberspace (online, e-commerce transaction) and those that arising from an issue involving an ‘offline’ dispute. Although it is difficult to precisely define the characteristics of ODR, but there is consensus that the two most frequent forms of ODR are electronic arbitration and online mediation.
In quintessence, Online Mediation is the same as the traditional mediation process and there are some differences however and key differences lies on mode or medium of the practice rather than substance of the concept. Online Mediators Schedule video conferencing with each party and their lawyer, thereby, parties having decisive advantage when dealing with different business hours and time zone which is a typical challenge in current pandemic situation; Moreover, parties can attend from their individual locations i.e. from its own territory, therefore, the power of venue is reduced because the parties cannot see each other as well as saving time and cost; another advantage is that it takes place in a virtual plenary meeting room for joint sessions and in separate virtual breakout rooms for private sessions, therefore, it is far more efficient and realistic method of dispute resolution in current circumstances as face-to-face meetings are less desirable. The process is convenient in a sense that once the parties reached resolution, to bind the both parties, the agreement must be documented in a contract. The mediator must project and show the mediation agreement onscreen and mediated agreement signed by the mediator must be sent digitally to parties for electronic signature. Hence, we need certified Online Mediator to standardize the process and to ensure that mediators are qualified for their position as well as mediations result in effective outcomes.
It is to be noted that there is no restriction or prohibition in our jurisdiction to utilize the low-cost digital platform such as Zoom, FaceTime, Skype, GoToMeeting in ODR. Zoom, if properly used can be a safe platform which will enable the parties to access materials from anywhere through online in a single connected environment,
To conclude, the Online Mediation Process is one of the legal profession’s great marketing opportunities today in challenging traditional processes of dispute settlement and can accelerate the reformation of our concepts of access to justice. Since, the ODR has the capacity to resolve disputes online in a time of social distancing, isolation and quarantine; accordingly, the current travel restriction compelled the Mediators to move their practice online to mitigate the negative impact of COVID-19 on legal processes. Moreover, Online Mediation offers the best hope for resolving disputes that cannot wait for ‘normal’ to return, therefore, Commercial Mediators can offer this unique service to parties to accelerate the curve of disputes. Instead of looking at this current pandemic situation as a time of immense struggle and lost opportunity, it is more of a time of opportunity for lawyers to become adaptable with one’s skill set.
JESMIN AKTER: Lawyer, Mediator, Online Dispute Resolution Specialist & Managing Partner, The Jurists & Mediators.
