The Indian Institute of Arbitration and Mediation (‘IIAM’) celebrated Online Dispute Resolution Day (‘ODR’) with a conference “Redefining ADR: New Opportunities for Justice Innovation”. The Conference was organised in Delhi on 01-12-2024.
The conference began with the lighting of the lamp and the inaugural session graced by Justice Surya Kant, Supreme Court of India, Dr Rajiv Mani, Secretary, Department of Legal Affairs, Government of India, Mr Chetan Sharma, Additional Solicitor General, Mr Anil Xavier, Senior Advocate & President, IIAM, and Ms Iram Majid, Advocate and Director, IIAM, wherein four initiatives namely, ‘Peacegate’ , a Dispute Resolution App, the Gateway to Justice initiative, India Interantional Centre for Advanced ADR Research and the Mediator’s Council of India were released.
In her welcome address, Ms Iram Majid welcomed the audience and shared the reason behind the theme being based on ODR. She spoke about how ODR saw a peak after Covid-19 and now it is being adopted as a transformative tool. Talking about the Peacegate app, she mentioned that it is the most advanced and streamlined ODR platform which reflects IIAM’s innovation and persistence. Lastly, she highlighted two of the four initiatives of IIAM, namely, Gateway to Justice and Mediator’s Council of India.
Mr Anil Xavier, in his welcome address, spoke about the concept of access to justice in light of the issues faced by the court system and the emergence of ‘welfare state’. In this context, he highlighted that IIAM has come out with four projects towards advancing access to justice. He also briefly explained the functioning, relevance and importance of all the initiatives. He underscored that IIAM is attempting to create an infrastructure of mediators which will serve as a model for other countries. Lastly, he welcomed the esteemed guests and audience.
“However, [with] the emergence of the concept of welfare, welfare state, the right to access justice has received special attention and effective access to justice, which is regarded as the most fundamental, most basic human right”.
– Mr Anil Xavier
Speaking on the occasion, Dr Rajiv Mani, underscored the role of judiciary in attaining access to justice. He mentioned that there is a need to popularise these ADR mechanisms, upskill the mediators in the new ecosystem according to the wide scope of mediation, a huge talent pool of skilled mediators, and take such dispute resolution mechanisms to everyone. Lastly, Dr Mani appreciated the pioneering work done by the Mediation and Conciliation Project Committee (MCPC) of Supreme Cout in training mediators as well as the role and far sightedness of IIAM in strengthening the institutional ADR in India.
“There is a need to emphasize the fact that arbitration, mediation, as alternative dispute resolution mechanisms are not only confined to the big metropolitan cities; the idea is to take such dispute resolution mechanisms to the doorsteps of ordinary people at Tier 2, Tier 3 cities or even the village and taluka level”
– Dr Rajiv Mani
Mr Chetan Sharma, addressing the esteemed guests and audience, spoke about how the English system of justice which has been transplanted in India has great merit, but it is essentially adversarial. He underscored that India has always had a mechanism of mediation or peaceful dispute resolution but over time disputes have increased and they will continue to do so. He stated that there is a need for a parallel mechanism of dispute resolution because the Courts cannot handle the number of disputes. Lastly, he spoke about the four initiatives launched by IIAM on this occasion.
Lastly, Justice Surya Kant spoke about the inclusion of technological advancement in the ODR system. He also spoke about the benefits of the new initiatives of IIAM. He highlighted that speedy justice and predictability of adjudication are crucial to the justice delivery system, and in that technology can help as it has repeatedly demonstrated potential. He stated that ODR has allowed people to engage in mediation without logistical burden of physical meetings. He underscored that technology must be used to promote inclusive, effective, conclusive and substantive justice as well as spread awareness. Lastly, he stated that this must not create a digital divide as it is against the vision of the Constitution and ensure that integrity is not sacrificed in the process of innovation.
“The purpose of any technological advancement in the legal system must always be used to serve the cause of justice; any technological infusion in the legal system must only be done only with one goal and that goal should be towards the approach to get the absolute unfiltered and pure justice to the consumer of justice”
– Justice Surya Kant
“Justice is not an outcome, it’s a process, a principle and above all, a trust which we all must uphold. It is the guiding light for all efforts at resolution of disputes, there is no question that justice has to be the north star for innovation in the area of legal processes.”
– Justice Surya Kant
“Every new technology must be tested at the touchstone of whether it would bring about better justice”.
– Justice Surya Kant
The first panel session titled “Streamlining Arbitration: Reforms for Enhancing Efficiency and Effectiveness” moderated by Ms Iram Majid consisted of Justice K.V. Viswanathan, Supreme Court as Chair and panellists namely, Mr Tejas Karia, Partner & Head of Arbitration, Shardul Amarchand Mangaldas & Co. and Mr Sidharth Sethi, Advocate on Record, Supreme Court and Partner, J Sagar Associates, Mr Amit George, Advocate, Delhi High Court, and Mr Mohit Dubey, Deputy Director (MES), Ministry of Defence, Government of India.
Ms. Iram began the session by explaining that the first session will have two parts, the first part focusing on the draft Arbitration and Conciliation (Amendment) Bill, 2024 (‘Arbitration Bill’) and what impact it might have on the present arbitration regime, and the second part addressing the issue of bilateral appointment of arbitrators.
Justice K.V. Viswanathan took the floor to talk about the immense pendency of cases in the Courts and how unless there are ordinary dispute resolution measures that inspire confidence, the pendency will be a serious problem in a few years. He spoke about how arbitration has problems such as long timelines, ballooning costs, and enforcement hurdles of the awards.
“These challenges can sometimes turn the promise of arbitration into a costly and time-consuming venture, thus eroding the trust in the very process designed to ensure swift justice. The trust factor is very important because unless arbitration, arbitrators, the procedure, the process, and the end result, induce confidence in the citizen, it will not be a successful mechanism.”
– Justice K.V. Viswanathan
He talked about various ways in which arbitration can be made efficacious. One solution that he focused on was the use of technology to ensure that arbitration continues to serve as an accessible, efficient, and fair mechanism for dispute resolution. He emphasized that it has to be figured out how the best technology and artificial intelligence can be harnessed without ignoring the importance of the core decision-making process. He highlighted that by addressing challenges such as party equivalences, arbitrator appointments, and jurisdiction inconsistencies there can be a more inclusive and reliable arbitration framework created. These reforms along with the cautious integration of innovative tools such as predictive coding and AI-driven document review will shape the future of arbitration and enhance its effectiveness in resolving disputes.
Talking about the issue of inflated costs, Justice Viswanathan said that for many, arbitration has become prohibitively expensive, particularly for small and medium-sized enterprises. To address these concerns, some institutions have introduced cost-capping mechanisms, while others, like the Netherlands, have piloted subsidized arbitration for specific sectors such as environmental disputes.
Another area for reform, he stated, is arbitrator selection. He highlighted that there are concerns that there are networks perpetuating a lack of diversity and regional representation, particularly in foreign-seated arbitrations, even in institutional arbitration. To deal with the same, anonymous selection methods have been developed, so that there are no repeat appointments, and there is diversity and representation. He mentioned that one innovative proposal is the use of blind selection mechanisms, where arbitrator profiles are anonymized to minimize unconscious biases. Coupled with strengthened codes of conduct, such as mandatory disclosure of repeat appointments, he underscored that these reforms could enhance trust in the arbitration process by ensuring more equitable representation.
“Gender diversity, regional diversity, we include everything when we speak of diversity. It’s also a matter of effectiveness. A diverse arbitrator pool brings varied perspectives, which can be invaluable in resolving culturally sensitive disputes.”
– Justice K.V. Viswanathan
Lastly, ending his speech on the issue of reducing delays without compromising fairness, he said that the age-old maxim that justice delayed is no doubt justice denied, but justice hurried should not be justice buried, applies with equal vigour to arbitration and alternative dispute resolution.
Thanking Justice Viswanathan, Ms Iram took over the floor and posed a question to Mr Tejas Karia that whether the Arbitration Bill will introduce new issues or remove the existing challenges.
Mr Tejas stated that the purpose of this amendment is to streamline issues such as the timing, cost, emergency arbitration, Court cases concerning arbitration, etc., in terms of making arbitration a more effective means for alternative or parallel exclusive resolution mechanisms keeping in mind the global developments and technological advancements. He talked about his experience as a member of the committee that drafted this Amendment Bill.
He underscored that it also focuses on the involvement of technology in the arbitration process and reducing the time of enforcement because one of the biggest criticisms faced by the arbitration process in India is that after the arbitration award is made, either it gets challenged or the enforcement stays in the Courts.
Regarding the role of Courts and reducing their burden, he stated that the amendment for changes in the arbitrator’s appointment, grant of duty measure, challenge of award provisions, etc., will reduce the involvement of the Court apart from its supervisory role. Lastly, he ended his speech by highlighting the progress of arbitration in India in the last 10 years and how the amendment will benefit the practice of arbitration in India.
Taking over from Mr. Tejas, Mr. Amit George answered the same question by saying that in this process of evolution, the speed of legislative amendments in the last decade has been heartening. He pointed out that an advantage of this process is that whenever there is a new amendment, to a certain extent, it utilizes the ecosystem in a particular direction which could be fruitful. He mentioned that now people see the system with a short-term perspective instead of a long-term one, wherein usually problems would accumulate, and solutions were proposed at the stage where the problems have become too large. Lastly, he highlighted the importance of a continuous process of reforms especially when there are still challenges in terms of putting in certain objective benchmarks, which is of course difficult when there is an adversarial litigation system. In that sense, this trend of constantly trying to identify problems and remedy them in the short term is quite hard.
Mr Sidharth Sethi began his speech by talking about how India has made significant strides in positioning itself as a prominent destination for domestic and international arbitrations. He stated that the amendments in 2015, 2019, and 2021 were all intended to align our system with global and contemporary trends. These amendments were very well intended, and they achieved, to a large extent, their purposes. But at the same time, they did have some issues. He gave two examples of such issues namely, Section 11 of Arbitration and Conciliation Act, 1996 (‘the Arbitration Act’) which provides for the appointment of arbitrators wherein tribunal autonomy has become important, and Section 36 which provides for enforcement of a domestic award like a Court decree, which was amended in 2015 and unlike before, now mere filing does not render the award unenforceable unless the Court stays the operation subject to certain conditions.
“The balance between tribunal autonomy and Section 16, on the one hand, and the interference by Courts at the pre-reference stage, at Section 8 and 11 stage, the balance is fragile. And this fragile balance is evident from the numerous judgments on the scope and ambit of Section 11 and the unending saga of judicial interpretations.”
– Mr Sidharth Sethi
Moving onto the last speaker, Mr Mohit Dubey shed light on the frequent amendments. He stated that despite the Arbitration Act being a living act and constantly addressing issues, somewhere it is not able to instil confidence. He gave the example of the role of arbitration in the construction industry where the absence of construction law leaves the door open for varying interpretations. Stating this, he said that if there is a substantive law that commensurates with the Arbitration Act then the entire ecosystem will get addressed. He highlighted the importance of focusing on not just one type of mechanism and called for a hybrid solution to address the issues.
“Arbitration does not fit or does not suit everywhere. Mediation may not be possible at every stage.”
– Mr Mohit Dubey
Moving onto how the Arbitration Bill would address specific issues and whether there should be a specific arbitration Court, Mr. Amit stated that the Bill brings forth a pecuniary jurisdiction according to which cases will be allotted, but otherwise also most cases which come for arbitration will fall under the commercial Court ecosystem. He said that there is a possibility of a specialized division of arbitration Court in the future because they will be manned by experts thereby creating a more seamless jurisprudence concerning the arbitration ecosystem.
Mr Tejas Karia addressed the audience with a detailed explanation of the past and present emergency arbitration regime in India. He said that emergency arbitration is a very important tool for getting an interim measure because ultimately the subject matter must be protected for a successful endorsement of the award. He also spoke about the development of emergency arbitration in India from a deeming fiction to now recognition in the Arbitration Bill. He furthered on how the mechanism of emergency arbitration will improve the acceptability of arbitration, reduce burden of the Courts and has many other benefits which will not only solve many issues of the current system but also bring India at pace with the world.
Adding to the discourse, Mr Sidharth spoke about the changed scope of Section 9 of the Arbitration Act to state that one cannot approach the Court during pendency of the arbitration. He said that although this change is intended to encourage reliance on arbitral tribunals, it overlooks a situation where intervention of the Court may be indispensable, particularly in situations where assets have to be preserved or where there is an immediate threat of disposition or of invocation of a bank guarantee. There would also be situations where the subject matter of the arbitration has to be protected where an arbitral tribunal may not have jurisdiction over third parties. He highlighted that Section 9(3) already envisages a situation that once an arbitral tribunal has been constituted and if there be a requirement to go to the Court, the Court will not interfere unless the Section 17 remedy is shown to be inefficacious.
Answering a question asked by Ms Iram, Mr Mohit talked about parties going to the tribunal instead of the Court under Section 29A which provides for extension of time. He stated that this would allow parties to not have to go to the Court repeatedly for extensions. He also suggested that the duration of the first extension should be 12 months and not 6 months.
Ms Iram Majid posed a question to the panel regarding the removal of Schedule 4 of Arbitration Act. Mr Karia responded that this amendment gives power to Arbitration Council of India to describe the fees for ad hoc arbitration to deal with the issue of cost. He mentioned that in institutional arbitration there are cost calculator provided by the institutions which provides certainty of costs. Thus, this amendment will allow the Arbitration Council to formulate rules, promote institutional arbitration and increase the pool of arbitrators who would be trained and willing to work at that cost.
Discussing Central Organisation for Railway Electrification v. ECI SPIC SMO MCML (JV) A Joint Venture Co., , regarding unilateral appointment of arbitrator, Ms Iram posed a question as to what impact will this judgment have on the future of arbitration. Mr Sethi responded that this is a welcoming move as independence and impartiality of arbitrators and equal treatment at all stages is critical to maintain purity of justice. The most important stakeholder in the entire process is the litigant, the end user, and there should not be the slightest doubt in the minds of the end user that it has been shortchanged. Therefore, with this judgment, there is a need to now have balanced selection methods.
Mr. Tejas added that there are so many users of arbitration but very less full-time arbitrators and there is a heavy reliance on retired judges. He said that this judgment is taking the law as it always stood from the inception in the sense that as far as the appointment of the sole arbitrator is concerned, it must be by mutual agreement with freedom of choice. He also highlighted the reasons why this judgment was pronounced and what benefits it will have.
Additionally, Mr Mohit shared his perspective as a user. He spoke in depth about democratisation of the dispute resolution system using technology. He stated that in order to maintain integrity of the process there needs to be a mechanism for conducting background checks.
Answering a question about the role of AI in arbitration, Mr Amit George reminisced about his experience of law school and how research was conducted while underscoring the drastic developments brought forth by technology. He added that technology should be fully utilized but the human element should not be lost in the process. Lastly, he stated that technology or AI does not capture the nuance of a case and the sense of justice that we may otherwise want to engender.
The second panel discussion titled “Mediation as a Tool for Social Justice: How the Mediation Act and Global Standards are Empowering Communities” was also moderated by Ms. Iram and chaired by Justice Anish Dayal, Delhi High Court. It consisted of Mr J.P. Sengh, Senior Advocate, Delhi High Court & Mediator, Mr Avnit Singh Arora, Director, Ministry of Law & Justice, Government of India, Mr Ajit Mishra, Mediator & General Manager, Dedicated Freight Corridor Corporation of India Ltd. and Ms Manini Brar, Independent Practitioner/ Arbitrator, bridge Chambers.
Ms Iram started the discussion by introducing the panel and facilitating the dialogue. She asked many thought-provoking questions to the panellists, specifically asking them to reflect on their practice, experience, and opinion.
Justice Anish Dayal spoke about his relationship with arbitration and how he has always believed and aimed for peaceful resolution. He expressed his experience as a judge about how certain matters can be sent to Delhi High Cout Mediation and Conciliation Centre or settled in Court by the Judge asking the parties to settle. Lastly, he said that there are certain minor issues like cheque bouncing which do not need to go for so long, but they do and if the Judge asks the parties to settle, it is merely for the purpose of peaceful resolution instead of incurring costs and litigation.
Ms Iram posed a question to Ms Manini Brar about how she can relate to mediation as a person or a human being.
Ms Manini, in her response, shared insights from her practice in commercial law arbitration, a member of the ICC Commission on Arbitration and ADR (Alternative Dispute Resolution), and a government advisor. She said that mediation has become an unavoidable facet of arbitration in any dispute. It has phases, there is the mediation before the dispute, once the arbitration is underway, and once the stage of affidavits of evidence or a cross-examination is reached. She highlighted that it is important for parties to assess where they are and make a realistic decision about their expectations.
Answering the same question, Mr J.P. Sengh reminisced about the concerns that were raised when ADR was introduced, there was a concern about what would happen to lawyers if all cases were solved like this. He talked about the status of mediation in India and its beginning as a Court initiative. He underscored the relevance and usefulness of mediation as it is not just the future but also the past as can be seen from community mediation.
“Mediation is not about settlements. Mediation is about transformation.”
– Mr J.P. Sengh
Adding onto the point raised by Mr Sengh, Justice Dayal added that at the human level, it has to be seen where mediation starts, it starts with little disputes that are inherently human such as family disputes. He also mentioned three aspects of discourse according to Vedas, vaad(discussion), vivaad(debate), and vitandvaad(only what I am saying is correct).
“Disputes are inherently human; they start with the human, and it should get finished with the human.”
– Justice Anish Dayal
“Two people in a conflict, both cannot win; mediation is both suffering a bit of loss.”
– Justice Anish Dayal
Mr Avnit Singh Arora continued the discussion by stating that every party to a dispute is aware of each other’s stance, so the role of a mediator is that of a facilitator who brings the parties together however, this requires the intention of both sides as well as their faith in the mediator.
He spoke about the development of the legislative ecosystem of mediation, dating its formal recognition to 2002 and linking it to the acknowledgment of its value under Civil Procedure Code, 1908. He also underscored the validity of mediation as a quantitative decision-making tool. Talking about why the Mediation Act was created despite it being a part of two existing statutes, he explained that the idea behind the act was to encourage parties to voluntarily try and settle, something that even Courts attempt to do. It intends to provide a mindset change or an awareness that this is also an option. It provides for the enforcement of a mediation-led settlement agreement as a decree of the Court with limited grounds for challenge. It also intends to institutionalize mediation, recognise various stakeholders, and enable an ecosystem while keeping party autonomy at the forefront.
Regarding the government as a litigating party, he mentioned that mediation is not an acceptable norm within the government. For solving this issue, three provisions have been introduced which are: one, if any public sector or government entity has a successful mechanism/scheme for conciliation or mediation then that can be followed; second, no procedure should be initiated against a person who has taken an action in good faith while setting a matter on behalf of the government; and third, the person who is ultimately signing the settlement agreement on behalf of the government will ensure that it has been approved by the competent authority.
Mr. Ajit Mishra shared his perspective as a construction professional who initially did not understand the difference between negotiation, mediation, and conciliation. He stated that in his industry, they were dealing with negotiations which was prohibited in government agencies, as it was not allowed to negotiate with contractors. So, they had to resort to conciliation. He mentioned that in the government, it is preferred that the disputes are settled and not prolonged. Mr Ajit highlighted that the issue currently is that the Act is not notified so everyone is in limbo as provisions under the Arbitration Act for mediation have been dropped. From his perspective, mediation is an unknown and unfeasible territory in construction commercial disputes.
Ms Iram posed follow-up questions to Mr Ajit about what changes he would like to see or how effective will it be from the user’s perspective. Mr Ajit responded that mediation will be a trendsetter and it’s a good practice as it is in the interest of both parties that the dispute gets settled. He also highlighted that there is no end to a mediation, anyone can go for it anytime and repeatedly. So, the new act will institutionalise mediation, create a timeline, enhance the professional careers of mediators and the academic field, and broaden its area. Lastly, he highlighted that there will be two challenges namely, awareness, capacity building and integration with the existing system.
Mr Sengh agreed with Mr Ajit about how initially there was ignorance about mediation. However, now there is much more awareness, in fact, Delhi, Bangalore, Chennai, and Chandigarh have developed a lively culture for mediation. He talked about the difference between conciliation and mediation and how the Mediation Act does away with conciliation. He also highlighted some key features of the aforesaid act such as one, it demolishes the difference between conciliation and mediation, second, it consolidates the different meanings given to ‘conciliation’ and ‘reconciliation’ within different acts, third, it says if mediation is conducted by prescribed individual or panel then the settlement will have the force of a decree.
The conference concluded with a demo of the Peacegate app.
SCC Online contributed as Media Partners for the Conference.
Peacegate is an ADR ERP (Enterprise Resource Planning) software and app, which integrates all facets of ADR — including resolution process, communication and filing systems, back-office support, accounting assistance, registry and secretarial assistance, selection of Neutral, professional management of neutrals, up-gradation and disciplinary process of neutrals, selection of ADR lawyers etc. — in a single database, application and user interface.
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