MEDIATION DURING THIS PANDEMIC By Prakriti Suthar

The impact of corona or COVID-19 pandemic is keenly felt across the world over the businesses and commercial parties economically. It is clear that COVID-19 has and will continue to bring about many sources of dispute and conflict, to name a few like, supply chain and logistics challenges, employment issues, unfulfilled contractual obligations, cash flow pressure points etc.

This pandemic is hitting our judicial system. Courts were required to close their doors in order to protect the public, personnel and the judiciary itself. Many are struggling to convert their technological backbones so that their employees can function remotely.

In these unprecedented times, dispute resolution mechanisms can and must still function to assist in administering justice and managing disputes.

Parties can electronically file documents during this pandemic using online case management systems.

In Singapore, during this COVID-19, temporary measures have been introduced to minimize or dispense the physical attendance in the courtroom. Temporary Measures Act, 2020 has been introduced which allows court proceedings to be conducted using remote communication technology.

This gradual shift in the court setting to embracing new remote communication technology is certainly welcome, as it can speed up court proceedings and promote access to justice to the public in times of uncertainty.

Mediation

In this process, a neutral intermediary, the mediator, helps the parties to reach a mutually satisfactory settlement of their dispute. This process can still be conducted during the pandemic time.

It is believed that the practice of this virtual and private mediation system will come into existence on its own because private professional mediators and other mediation bodies will be required to adapt themselves to the infrastructure and the skill set during the current COVID-19 climate.

If there is any mediation related concern then private professionals mediators and mediation companies will remain available remotely to address them.

Since mediation is a very confidential and non-adversarial process, it helps the parties preserve their commercial relationship than the alternative litigation of arbitration routes which may otherwise break down the relationship. Hence, mediation is a very useful tool for conflict resolution.

It also helps to mitigate losses and strengthen the long-standing relationship between businesses and individuals.

Video conferencing alternatives are used by the Alternative Dispute Resolution community for dispute resolution right now, just when they are urgently needed. Hundreds of video conferencing mediations and settlement conferences have been done. The providers and arbitrators, including the AAA, ICDR, the ICC and the Chartered Institute of Arbitrators provide the protocols for online arbitrations.

Normally, all parties will receive electronic instructions inviting them to ‘join’ the mediation in advance to a scheduled online mediation.

Once, everything has been arranged, participants click a link which has been sent to them at the scheduled mediation time, from a desktop or laptop computer, tablet, or smartphone, and enter a private, virtual meeting.

After getting connected, the mediator will welcome you by audio, video, or both, and your mediation process will get started.

Just like a face-to-face mediation, in this virtual mediation through the video platform, your mediator can talk with the parties in a shared ‘room’, and the parties have the opportunity to greet each other. At that time, the mediator will explain and answer the questions, and will explain the mediation procedure. The parties may then exchange opening statements, when appropriate.

During a video conference mediation, the mediator can ‘enter’ and ‘exit’ each side’s room, gathering and conveying information, asking questions, and communicating settlement proposals between the parties. In order to resolve and abbreviate pending matters, we all must commit to communicating.

That being said, commercial parties or individuals who are facing existing or potential disputes should consider the forum, the most appropriate to resolve specific disputes in the most timely and cost-effective manner paying heed to any dispute resolution clause in the applicable contract.

In short, we can fully engage in promoting a real and well-thought court alternative, that will assist the courts and improve access to justice and enable timely resolution of disputes by taking full advantage of the global Alternative Dispute Resolution infrastructure.

Let's all commit to being part of the solution as we belong to a profession that is and should be dedicated to preserving our system of justice.