ADR Going Digital – How far it can go?
: ANIL XAVIER
In 2019 even the most enthusiastic “digital native” would not have imagined that the world will become so much “digital”. Similarly nothing could have forced the “luddite” to transform the way they are now, which they would have never imagined in their wildest dreams. The pandemic of COVID-19 has accelerated the need for digital communication and aggrandized the digital world in all fields. The digital world is moving so fast and invading unfamiliar territory creating a need for you to adapt quickly. Today you need to be prepared to learn daily, to challenge how things were done yesterday and get ready to apply new approaches today, otherwise you may find yourself totally unfit to survive in the new world.
ADR field, both mediation and arbitration has experienced an unprecedented degree of digitalisation. The earlier meetings in ADR have now been replaced by virtual meetings in Zoom and other capable rich media platforms. Now virtual or online meeting seems to be the normal and our earlier meeting is now known as “face-to-face” or “physical” meeting.
The disputants have recognised that online ADR has certain advantages over physical meetings in terms of ease of access, convenience, scheduling and affordability. It can be more easily accomplished without parties needing to take off work, waste time and money driving through traffic, or our needing to hire expensive meeting halls.
However, mediators and arbitrators found many pitfalls for digital ADR. In arbitration, these virtual communication platforms is limited to replicate offline meetings in an online setting. And mediators found it challenging to develop rapport online and manage the relative balance between joint and individual caucus meetings. Analysing the body language was another hurdle. In addition, understandings of confidentiality, transparency, issues of privacy and security were also barriers.
Now, even when the world is gradually crawling back to normalcy, things are certainly not what it used to be. The seismic shifts that have taken place is here to stay. We need to anticipate future trends and adapt to the flexible and changing scenario. Therefore to establish the digital transformation of ADR, we need to have digital platforms which will help the mediators and arbitrators to do “all of the right things online”.
Today we need technology that work with us; that supports us to make minimal errors and improves the outcome, so as to make the lives of human better. AI (artificial-intelligence) and automation promise to be the biggest technological shift in our lifetime. AI is augmenting our capabilities, allowing us to do more, with better accuracy, in less time.
We need customised platforms and applications, which could bring in automation and AI, allowing dispute resolution process by negotiation, mediation and arbitration available to people in their smart phones and helping mediators and arbitrators to do mediation and arbitration with automated AI-assistance to make minimal errors and with high efficiency. One such application developed by the Indian Institute of Arbitration and Mediation (IIAM) is the “Peacegate App”. The App has the options for Online Negotiation, Online Mediation, Mediation through Centre, Online Arbitration and Arbitration through Centre. The App is available on Play Store for android devices and on App Store for apple devices. The web version is available in www.peacegate.in.
The App allows the parties to file pleadings, schedule meetings, make online payments, and also guide the Mediator or Arbitrator to conduct the process as per the approved process or legal requirements. The App would also function as a Record book to indicate the progress and stage of the mediation or arbitration process maintaining transparency of the process. The virtual meeting room is also customised so that specific space is allocated for the Arbitrator, claimant and his lawyer, respondent and his lawyer, administrative secretary etc. Similarly, in mediation, the mediator can take the parties conveniently to general room or caucus room. It also help the Mediator or Arbitrator to make Settlement Agreements or Arbitral Awards online and get it signed online with all security features. The AI feature also make sure that all mandatory legal requirements for making domestic or international arbitral awards or settlement agreements are satisfied, so that the human error is eliminated.
This is just a beginning. The future of digital revolution is notoriously difficult to predict. Many technological dreams that were once in science fiction are now a reality. It is said that with the development of AI, computer systems can complete or augment tasks that would require human intelligence – at a much larger scale than we could on our own – in fields that include speech recognition, visual perception and decision-making. Research is going on with “Hybrid Thinking,” an interplay between human and cyber intelligence. Augmented reality, Projection mapping etc. could ultimately make online communication as real as reality, allowing for collocated collaboration between users. The future of digital communication sounds a lot like a weird dream, but don't be surprised if within our lifetime, we find ourselves travelling in holographic projections enabling face-to-face life-sized versions of us sitting and communicating in augmented reality spaces. In fact research on brain-computer interfaces also aim at possibilities where you don’t need a physical equipment, where the brain makes use of electrical signals – an electrical code – to transmit and process information.
Anyhow one thing is certain, ADR has already gone digital and will grow rapidly in the digital world. The International Telecommunication Union (ITU) estimated in 2015 that 30% of the world’s youth are digital natives and over the next 5 years the number of digital natives will be more than double. They will need dispute resolution process in the digital world. One of the iconic example of what happens if we don’t recognize and accept digital technology, is the annihilation of one of the most powerful companies in the world, Kodak, which was so blinded by its success that it completely missed the rise of digital technology. So, let us adapt to the technological revolution and shift our focus to online dispute resolution methods.
Article originally published in the 10th Year Anniversary Souvenir of Bangladesh International Arbitration Centre, during October 2021
Mr. Anil Xavier is a lawyer practising since 1991. He is the President of Indian Institute of Arbitration & Mediation (IIAM) and Chairman of the Asia Pacific Centre for Arbitration & Mediation (APCAM). The author can be contacted at firstname.lastname@example.org.