Naavi.org

Arbitration and Mediation are often spoken off in the same breath as if the two are closely related. Though Arbitration and Mediation belong to the family of “Alternate Dispute Resolution” (ADR), it is to be recognized that the processes are widely different and requires different skills. All Arbitrators donot make good Mediators and need to accept the situation and live with it.

Where as in a Mediation, the intervening neutral party namely the Mediator tries to bring about a settlement between the disputing parties by using his “Behavioural Analysis Skills”, without the legal authority to issue a mandatory order, an Arbitrator has the authority given to him by the parties themselves to issue a binding award.

There is a third type of ADR process called Conciliation which is similar to Mediation but where the Mediator is a person with some authority and respect and therefore can nudge the parties to come to a settlement though his legal authority is not more than that of a mediator.

An Arbitration is more suitable when the disputes are likely to have legal issues to be interpreted. Mediation/Conciliation is more suitable when the issues to be settled are technical in nature or involve emotional issues.

When a legal practitioner is called upon to assist in a Mediation process as a Counsel or act as a Mediator, the legal practitioner has to understand the nature of the dispute and whether he should accept a role in the resolution.

When we try to resolve an “Emotional” issue through a judgement of a Court, even if the judgement is given by an authoritative Court, the parties may end up dissatisfied. Similarly issues in which lot of technicalities are involved may easily be mis-interpreted even by experienced Judicial authorities.

If the objective of “Dispute Resolution” is to bring about an amicable settlement or what we call as a “Win-Win” outcome, there is a need to explore the Mediation and Conciliation options more than Arbitration and Litigation.

An advocate by nature is trained to look at issues from the point of view of a legal provision and earlier Court decisions. Similarly, when a Judge acting as an Arbitrator looks at a dispute, his primary focus again is on what the law says.

Mediation on the other hand works on bringing about a settlement between the disputing parties in a fair manner without any party being mislead about their rights or not being given a fair opportunity to assert their rights.
Some times a resolution which both disputants agree upon may not find a direct provision in law or it may even appear to be different from an earlier Court decision. A trained advocate would find it uncomfortable in accepting it as a proper resolution even when it is the informed choice of the parties.

The Mediator as well as any advocate who participate in Mediation to assist the parties should be able to fully digest this difference between the litigation and arbitration process on the one hand and Mediation on the other and discharge their responsibilities.

In behavioural science, there is a term called “Role Set”. It is a tendency to behave in a set role pattern even when the person has moved onto to a different role responsibility. In a simple example, when a subordinate “clerk” is promoted and pushed into a decision making “Officer” role, he often continues to behave more like the Clerk than an officer, He often is reluctant to take decisions, and expects some body else to take the decision which he may efficiently implement. This has nothing to do with inefficiency but because of a habit formed in the earlier role with which he is comfortable. But in an organizational environment, this “Role Set” behaviour is dysfunctional since any person promoted to a higher responsibility fails to get over his behavioural traits of the previous position and therefore becomes less effective than what he should otherwise be.

In the same manner when a good Judicial person or a Good lawyer moves into a Mediation room, they may have a tendency to replay their litigation experience and bring in the known CPC procedures and Case laws to settle the mediation. They may not realize that their role in the mediation should be only to maintain an informed decision making environment in which the disputing parties come to a settlement in a manner which will retain their friendly relationship with which they entered into the earlier contract so that they can move on in life after resolution as if the dispute is a thing of the past.

There is no doubt that this is difficult for established advocates to appreciate and accept that a “Win-Win” solution is better in mediation than a “Win-Lose” situation which is the average norm in litigations.

It is for this reason that subject experts and non advocates become more effective Mediators as we see in the field of “Marriage Dispute Resolution”. In an emotionally charged situation such as a “Divorce”, it is the spirit of reconciliation which is a better option to be invoked rather than what is the “right” under law. Successful divorce advocates are therefore more “Counsellors” than advocates and should be able to switch roles easily.

Though business disputes need not be as emotional as a divorce, Advocates and Mediators who engage in Mediation must consciously avoid the “Role Set” problem and be able to think differently.

Probably, Mediators or Advocates in Mediation need to undergo a “Behavioural Training” to understand the problems of “Role Set” and how to overcome them.

Naavi

Naavi’s initiative to develop ADR and ODR professionals across India by creating citywise community of interested persons has been opened through the website www.ujvala.in.

The website provides for registration of members and showcasing their profiles. It is intended that the members would be provided with an opportunity to share their knowledge through the blog and periodical web meetings and webinars.

Though the website is mainly meant for advocates who want to specialize in taking up Arbitration related cases and also act as arbitrators if they so desire, professionals who have specific expertise in other domains who can act as Arbitrators or Mediators may also register as members.

More information is available on the website.

Naavi

In working towards a vision to make India a Global hub for ODR, Naavi.org is taking steps at professional capacity building by making young advocates ready for ODR.

While the facility for conducting ODR is ready with www.odrglobal.in, the user community is yet to gear itself up to take advantage of the available opportunity to be among the first to develop expertise in ODR and start offering their services.

In our preliminary survey of the market, it is found that many arbitration centers that have been established in India are already conducting ADR proceedings but are not yet into using ODR. Some of these institutions have expressed that even ADR needs to be promoted to some extent now and the new generation of ADR professionals will automatically take up ODR.

In order to develop the ADR community therefore, there is a need for an organizational effort to promote the concept of ADR and ODR simultaneously. Naavi.org which was in the forefront of promoting Cyber Laws starting from 1998 when the draft E Commerce Act came under discussion, now has taken up the “Mission-ODR” to promote the concept of ODR.

As a part of this effort, Naavi.org has proposed to build a “Global Forum of Virtual ODR Professionals”. As a beginning, the forum would be set up in all major cities in India starting with Bangalore. Each city will first have a Coordinator who will assist the development of the forum. Naavi.org provides the back end support with necessary guidance including framing of Standard operating Procedures for the forum.

Members will get services to develop their ADR skills and form themselves either into their own Arbitration units or join any of the established permanent ADR institutions.

As always, we consider this as a project in which community interest is involved and support would be forthcoming from the community.

If you are interested, contact Naavi through e-mail.

Naavi

(P.S: ODR is an form of Alternate Dispute Resolution or ADR such as Arbitration, Mediation or Conciliation done through a Virtual meeting)

Naavi.org was born when India stepped into being a Digital Society with the  passage of Information Technology Act 2000. Now after 15 years, we are standing on the threshold of another major transformation in India, this time in the Dispute Resolution process.

There is first an adoption of the Alternate Dispute Resolution (ADR) mechanism to overcome the litigation related delays. Then the ADR itself is getting ready to transform itself into Online Dispute resolution (ODR) mechanism.

This ADR adoption and then ADR to ODR transformation will engage the attention of thought leaders in the coming days. Just like paper based contracts migrated to digital contracts with ITA 2000, now the physical litigation society is taking a hop to an ADR society still in physical space and then a jump to the digital ODR society.

In between, the missing step is now being provided by Naavi.org to assist a smooth transformation of the dispute resolution mechanism from Court based litigation to Physical society ADR and then onto Digital Society ODR. In this process, Naavi.org will collaborate with established ADR institutions to bring about the adoption of ADR and then take over the responsibility for guiding the ADR transformation into ODR.

This should enable interested professionals to take up ADR first and then look at ODR as a professional career. Since Ujvala Consultants P Ltd, the parent company that owns Naavi.org has also co-promoted the ODR platform through odrglobal.in, professionals who are ready to take up ODR will have a ready platform to use their skills.

ODR Global also offers “Back Office Services” as an adjunct to its ODR services  small ADR firms and individual ADR professionals can take advantage of these back office services and transform themselves from ADR to ODR using the virtual ODR platform provided by ODRGLOBAL.IN

It is proposed that under the Cyber Law Compliance Center (CLCC), Naavi.org will develop an incubation forum for Professionals interested in ADR and ODR to prepare them for handling ADR/ODR for their clients.

For this purpose, an operational “Guide to ODR”  will also be developed and  made available on subscription basis to the members of the ADR2ODR Transformation Center at a nominal price.

Watch out for the details on this proposed transformation center and contribute your thoughts to make it useful to the community.

P.S: The Transformation Center would be called the “Global Forum of Virtual ODR Professionals “

Naavi