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ADR AND MEDIATION: IN LIGHT OF COVID-19

Written by: Ananya Thakur

Introduction


In the last few years, the conventional view held by commercial entities with regard to the dispute resolution mechanism has altered considerably. Apart from arbitration and litigation the commonly accepted means of dispute resolution, ADR is consistently gaining traction among the commercial entities.


“When the actual needs of the parties are ascertained- rather than converted by their attorneys to impersonal demands or/and injunction- the possible means to a mutually acceptable and ultimately more satisfying dispute resolution rise dramatically. By appointing attorneys to represent them in the most adversarial, hard-nosed fashion, disputants forfeit their humanity vis-a-vis each other. Lost are the solutions which the natural human sentiments of sympathy would engender.”[1]


It can be credited to the various advantages of ADR that serve the commercial interests of parties and ultimately produce efficient outcomes in comparison to the already existing dispute resolution mechanisms.


Among the various less explored forms of ADR, mediation takes on a particularly less impeding route especially in a situation where instantaneous resolving of legal issues of utmost importance where the resources being expended are already limited. Therefore, in the scenario of this pandemic mediation can potentially prove to be the most prudent dispute resolution mechanism as discussed further in this article.


Why Mediation?


The traditional forms of dispute resolution face various impediments with the glaring inadequacies of the Indian courts which are faced with huge caseloads and administrative shortages of judges and lawyers.


The supreme court observed the same while also highlighting how the current scenario will lead to a delayed delivery of justice which can very well be equated with “denial of justice”,

which will in turn weaken the judiciary and the “rule of law”. [2]


ADR and mediation mechanisms on the other hand, have time and again, efficiently dispensed speedy and absolute justice which is also considered a fundamental right in accordance with Right to Life as guaranteed by the constitution as per the volition of Supreme Court.[3]



Covid-19 and the need for mediation mechanisms


The havoc wreaked by the pandemic on the world as a whole have in a sense triggered the self-serving interests of individuals for ensuring their wellbeing in these unsure times.

The pandemic has been an unprecedented crisis of life and humanity which gave rise to various steps taken by individuals and communities in lieu of survival and self-preservation.


In such circumstances the conventional moral standards may not be easy to uphold and arriving at a decisive and absolutely just verdict can be a complex process for the courts.

However mediating decisions in such situations can be a more compatible alternative to dispense effective and efficient justice to all parties involved.


Furthermore, when the lockdown is ultimately lifted, a surge of fresh cases will weigh down on our already strained judiciary which has managed to operate in the lockdown with limited access and resources.


Among the problems that are consistently arising in the pandemic the following can be described as most pressing matters of law.


The variable policies of individual insurance companies with regard to covering claims pertaining to Corona virus is bound produce invariable disputes of law, which will in turn lead to an exhaustive and a high-cost path of court trials.


The extensive number of claims filed for health coverage alone, will further aggravate the burden of cases on the courts.


It can also be predicted for the employer-employee disputes that resulted from the pandemic and the lockdown policies or the consequential economic decline that is to follow.


Tenancy issues and conflicts have also cropped up in the lockdown due to economic difficulties faced by both the tenants and the landlords which ultimately lead to failure to pay rent and/or eviction.

The tremendous growth of the infected patients has also given way to a health services crisis with a high percentage of the population in need of critical medical care. The medical equipment and staff shortages along with a rise in medical and ethical malpractices in the pandemic create a plethora of legal challenges.


Furthermore, crimes being committed in the lockdown i.e., domestic violence, sexual assault and harassment are increasing at alarming rates and in the absence of access to socio-legal support systems the victims are left stranded with limited access to legal discourse.


ADR and mediation will effectively prove to be the practical option in face of the glaring challenges of this worldwide pandemic and it will also work towards providing a solution which is both easily accessible and in the interest of all the parties involved.


The road to developing mediation mechanisms in India


Mediation needs to take its “real value as efficient, effective and enforceable resolution place”. For India, a mediation law which addresses these takeaways is necessary.

Even in the absence of definite structure of law to enact mediation procedures in the face of legal liabilities arising from the pandemic, judiciary can serve an important purpose by trying to minimize the problem. In ideal circumstances the parties should be able to depend on such provisions so as to obtain the services of a prudent mediator and any settlement that arises out of the mediation process should be provided the same standing as that of an “arbitral award”[4]. This would result in fluid process of settlement which arises by the parties itself unlike that of an arbitrator and it will also uphold the settlement as binding in nature, avoiding one of the main shortcomings of the mediation process.


In conclusion, while the pandemic presents us with numerous trying circumstances, mediation as a form of dispute resolution can effectively prove to be the ideal utopian solution to the various problems faced by the judiciary as well as the people of land that strive to achieve the ideal rule of law, stability and justice. While we may not be able to predict the absolute degree of outcome of mediation, we can say with absolute certainty that this medium of law has tremendous unresolved potential of positively impacting the legal system on all fronts in the years to come.



[1]Marvin E. Frankel, Partisan Justice (1980). [2]Brij Mohan Lal vs Union Of India &Ors, 2002 SCC [3]Hussainara Khatoon &Ors vs Home Secretary, State Of Bihar, AIR 1979 SC 1369 [4]S.30(4) of the Arbitration and Conciliation Act, 1996.

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