“Digitization” has become the main impetus for each industry over the world. Globally, the focus is on improving the customer experience and leveraging data for better decision making. This revolution is underway in India as well, where creating a “Digital India” has become a national priority. In such a situation, when individuals can’t go out to work, digitalization is playing a significant and viable job. It is the necessity and the only way through which India’s economy can grow in this stagnant situation.
Covid-19 has brought the world to a halt, but with all the challenges it brings, it has also given the legal industry a rare opportunity to change the way we have been practicing and conducting the business of law. It is presently an ideal opportunity for us to change over COVID – 19 into a positive open door for the legal Sector. Since rules are what administer this general public, this pandemic has given a chance to the legal Sector to bring change in litigation and practice. Going ahead, it will be essential for every one of the three components of the Parliament to work in a state of harmony for smooth progress. In recent months, technology has been forced upon us by the pandemic and is quickly pushing attorneys towards cutting edge arrangements. Let this not be an interval acknowledgment and a transient thing – we should now grasp innovation (past Zoom and WebEx and video conferencing). Remote working, online courts, libraries, digitized workspaces, digital signatures, case management, document management, and knowledge management solutions are suddenly non-negotiable.
As businesses suffer through this crisis, it is more important than ever that disputes get resolved quickly and efficiently. And there is a time-tested solution to this problem: Mediation. Since August 2018, Mediation has been made mandatory for commercial disputes in India, under the Commercial Courts Act, 2015. Considering the existing burden on courts, including the time required for getting the justice and cost involved, businesses (especially start-ups, MSME, and emerging companies) and other disputes need an alternate mechanism, which can resolve disputes faster and a lesser cost.
Under these uncertain circumstances, online Mediation would prove to be a useful mechanism and an excellent solution for the parties to address their disputes without going to the courts or arbitration, using quarantine. Even if parties do not have a Mediation clause in the agreement, parties can amicably agree to attempt to refer the dispute to the Mediation. This enables the counsel, mediators, and parties to access the proceedings together and has private conversations. Parties don’t have to adjust too many changes for conducting the proceedings online because formalities, like selecting a mediator or agreeing to time and place, are performed remotely anyways.
Benefits of Online Mediation
- Time Efficiency
- Cost Efficiency
- Easy Data Storage
- Easy Communication
Challenges faced by Online Mediation
Lack of Personal Touch
Face to Face communication helps parties listen and understand concerns, empathize with each other, vent feelings, and confront emotions, which is considered an essential part of Mediation. Further, the lack of direct communication often makes the parties uncertain about such dispute resolution mechanisms’ legitimacy. In the online world, the mediator merely becomes a superficial presence rather than a person who can control the two parties’ interactions. Therefore, this becomes a considerable disadvantage.
The primary issue of solving disputes online is that it creates digital footprints. Online platforms can store and record the data of the mediation session. This could enable a party to print out and distribute e-mail communications efficiently and without the other party’s knowledge. Cybersecurity concerns pose a considerable threat to the confidentiality requirement of the parties.
Example 1 :-
The operation of the courts. While many courts have laid down guidelines for video conferencing during the lockdown, that is not the only solution to keep the essential services of the courts running. We will require complete digitization of the judiciary – eFiling, hearing, trials, uniform structure of judgments that enable easy search and analytics to spot similar cases – perhaps a unique case number that remains the same from lower through to the apex court and an app to inform clients about their next hearing including absenteeism of the judge or opposite party a day before the hearing to prevent unnecessary travel and crowding of courts by clients and lawyers. For this to happen, judges, clerks, lawyers, and clients will need to be trained on the procedure and technology. People will help in identifying, evaluating, and implementing the best technologies. Processes will need to be designed by experienced people to get the best out of the selected technologies.
Post Covid-19, digitalization is dominating, and subsequently, e-contracts are additionally expanding and making their place in the economy. Electronic contracts or e-contracts are agreements entered through an electronic form mostly through a software system instead of the traditional contracts documented on paper and signed using the digital Signatures.
Shift to Digitalization
The Supreme Court of India leaves no stone unturned in hearing and adjourning of the cases as there was a nationwide lockdown in the country till 3rd May. On 23rd March, to practice social distancing and prevent the spread of the virus, the court decided to ban the entry of lawyers and litigants in the court. It was also agreed to hear only those cases that were of utmost importance and urgency. According to the recent reports, the Supreme Court has heard 593 cases in the last 34 days through video conferencing and other digital facilities. 203 out of the 593 cases were connected cases: cases involving the same issue that was heard along with the main case. Furthermore, the top court also delivered judgments in 41 cases during this period. Through these 41 judgments, the court disposed of an additional 174 cases which were connected matters. The apex court decided to start the video conferencing method on 23rd March, a day before the prime minister announced the nationwide lockdown in the view of the Covid-19 pandemic. Since then, the court has set for hearing on 17 working days with 34 benches hearing cases through video conferencing. Not only this, but 53 bars also sat to decide review petitions. However, those were resolved in chambers without an oral hearing, and with these 84 review petitions were disposed of by the court during this period.
What Future holds for Legal Sector
For lawyers, the COVID-19 crisis is a boon in the guise of a bane. Apart from the court cases, online consultations have been started by lawyers for their clients. Lawyers are now giving online advice through video calls or telephonic calls to make their clients know what is legally right and legally wrong. Big law firms can connect to their clients through social media, and work from home techniques for the employees is working well for such firms.
When clients have problems, lawyers thrive. As for the courts, the paradigm’s overnight shift is proof that courts are efficiently equipped with the expertise to act without limitation at any hour of need. As stated by a senior advocate CS Vaidyanatha “This is an inflection point for India’s legal profession. Till now, the mindset was one of resistance to change, or at best, incremental change. The disruption occasioned by Covid-19 has put forward challenges that can be best countered with wholesome and wholesale changes.
On the brighter side, the most excellent winner in this wise move might be taking care of the Indian courts’ pendency issue. The big law firms and the individual lawyers and small law firms are doing stellar work concerning the COVID crisis, innovating new services, helping clients with their current legal problems, and some have even set up dedicated desks for COVID related work. Along these lines, the person who will be reliable and steady will have the option to locate the correct open doors amid Covid-19. The world is changing at a pace quicker than any of us could have anticipated. To emerge successfully, we will have to match the speed. It is now essential to mandate the change and look at ways of transforming our systems in preparation for the new normal.