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With inputs from Dr Monica Vasudev
1040: Round Table Expert Zoom Meeting on “Role of e-mediation - online dispute redressal”
25th July, 2020, 11am-12pm
Participants: Dr KK Aggarwal, Dr AK Agarwal, Prof Mahesh Verma, Dr Ashok Gupta,
Dr Suneela Garg, Dr JA Jayalal, Dr Jayakrishnan Alapet, Dr Anil Kumar, Mrs Upasana Arora, Dr S Sharma, Dr KK Kalra, Advocate Ira Gupta
Key points from the discussion
- Litigations in the COVID era are anticipated in large numbers. The new Consumer Protection Act came into effect in July. It has a separate chapter on mediation as a dispute redressal mechanism, so that timely justice or settlement can be done at affordable cost.
- Disputes arise out of a communication gap; a mediator can fill this gap.
- We need experienced, meaningful, respected and unbiased mediation cells.
- Mediation is a voluntary process in which a mediator tries to bring together the disputing parties and reach a mutually agreeable solution. The mediator does not impose any decision or decides on the two parties; instead he/she creates a favorable environment, which helps to reach an amicable settlement.
- Mediation allows the disputing parties to present their views directly and confidentially and importantly, without fear of any negative action. It eliminates the risk of litigation, saves time and energy as well as relationships and brings harmony. Parties themselves work out a solution.
- In mediation, both parties have to agree to come willingly.
- Cases related to medical law, family matters, neighborhood disputes, consumer cases, commercial matters can be discussed in the mediation cell.
- Mediation cell is an independent body.
- All mediation cells have to abide by certain principles, which are autonomy, beneficence, non-malfeasance, confidentiality, justice, voluntary, fast track, transparent and enforceable.
- Steps of e-mediation: filing of complaint by an email, notice to other parties via email/sms/WhatsApp, hearing of both parties, identifying positions and underlying interests, identifying alternative solutions, revising and discussing solutions and reaching an agreement.
- The mediator should be a neutral and impartial person. He/she is a facilitator in charge of the process and should improve communication between the disputing parties and promote voluntary decision making. The mediator cannot record the proceedings.
- Any person regardless of caste, gender, religion, occupation can be a party to e-mediation. NGO, hospitals, educational institutes, public and private limited companies or sole proprietorship can be party to e-mediation.
- Parties can file a complaint by writing or sending an email and explain using documents, charts, etc. They should be active listeners, give options, prepare for a future without litigation and maintain their relations with each other. They should not record the proceedings.
- All relevant documents have to be submitted; complaint, supporting documents, reply by the other party, identity proofs and address proof; if a party is represented by another person, then authority letter is required.
- Mediation has become all the more important now as Courts are closed on account of COVID and most people are working from home now.
- Online dispute redressal is a new concept that is coming up in a big way in India; it reduces the cost of waiting; traveling is saved.
- There are no state boundaries in e-mediation; anybody across the country can approach.
- Patients usually lack faith in the mediation cells thinking that a mediator is biased, so mediator should be a third party, so that the settlement reached is unbiased.
- In litigation, the case is filed in a court of law and there is a proper procedure of filing the case, of deciding the case. Since litigation is a time-consuming long-term process, there are alternate dispute redressal mechanisms like arbitration, mediation, conciliation, lok adalats.
- In arbitration, one person as the arbitrator (agreeable to both) is decided by both parties, but since it is held according to the Arbitration & Conciliation Act, some proper procedure has to be followed.
- Mediation came up for the first time in Section 89 of the Code of Civil Procedures.
- In mediation, instead of going through proper procedure in the court, a third party (mediator) tries to conciliate and maintain relationship between two disputing parties together.
- With telemedicine being used more and more, it is important to have online mediation cells, which can adjudicate the matter.
- Proper documentation is the key for success in case of any dispute; this will save many litigations.
Dr KK Aggarwal
President CMAAO, HCFI and Past National President IMA