In conversation with Jonathan Rodrigues on Online Mediation: Challenges and Future of Profession

Jonathan Rodrigues is one of India’s most recognizable faces in mediation and a mediator at a leading mediation firm. Through this interview, he has spoken about  the current state of mediation, its shift to an online context and the nuances exposed by the same. He also provides valuable insights into the mediation landscape in India and its growth in the following years. He has been interviewed by EBC/SCC Online Student Ambassador Sarthak Yadav who is currently pursuing law from USLLS GGSIPU.

1. Can you please introduce yourself for our readers?

I’m a lawyer and mediator, currently based in Bangalore, and heading the online mediation vertical at CAMP Mediation – India’s premier service provider of private mediation. I have recently returned from Scotland, where I studied my LL.M. in Mediation and Conflict Resolution. When not obsessed with ideating about mediation, I like unwinding on long drives, early morning beach runs or cooking – all very therapeutic. I’ve loved travelling the country, experimenting with local street food and exploring new places, while creating awareness about mediation through workshops. What I would really love to get back to is theatre – something I found more time for, a decade ago.

2. As a preliminary query, can you shed some light on the effect of the pandemic on mediation and ADR?

Much before the current health crisis locked down our physical world, mediators and mediation institutions had already begun moving their services online. Of course, with the pandemic limiting us to our screens, it enhanced the need to mediate online. People began to realize the numerous advantages of mediating on-screen. I wouldn’t credit the pandemic for online mediation, but it certainly accelerated the transition from a face-to-face setting to a virtual setting. With most courts not functioning to full capacity, lawyers are now willing to explore a quicker and economical means to resolve disputes. The pandemic has pushed the reluctant, the non-believers and procrastinators to switch to online mediation – not by choice, but necessity. Many who are discovering and learning about mediation via online means may not realise it existed for decades in a physical setting. Therefore, the skills learnt to facilitate online mediations must be compatible in the physical world as well.

3. So, how well has mediation translated to an online context? Where do you feel the larger client satisfaction lies?

Answer: It would be pre-mature to compare the recent success of online mediation to face-to-face mediations, which have been the status quo for years.  However, the users feedback, so far, reflects more positivity than negativity.

Users have realised that online mediation means smaller budgets. They save on expenditure related to flight and hotel bookings – not only for themselves, but also their team of lawyers. Online mediation allows for easy access to experts and advisors to assist in decision-making – which would have meant more costs in a physical world. Now, as long as you have access to steady internet, you can book their services according to mutual convenience

Online mediation leads to quicker settlements. In the physical world, one could go, “Oh, that looks like a nice deal, but let me go to the boardroom and have a chat about it and come back to you.” Now you can schedule short sessions and if one party needs to speak to other stakeholders before making the decision, then you simply disconnect the call and ask them to make the necessary calls and get back at the earliest. With technology, we can work across time zones and geographical boundaries. So there’s definitely less dilly-dallying and stalling, and the feedback at CAMP Mediation is that users are finding online mediation more productive. Users are beginning to see a lot of value in online mediation.

It’s too early to answer definitively but users, especially lawyers, have expressed more satisfaction than dissatisfaction towards online mediation. Lawyers can now manage their court work and mediation work without having to compromise on one to accommodate the other on a busy day.

4. In that regard, how much does a client’s technological literacy (or lack thereof) weigh into the process? What does client coaching entail in such a scenario?

Earlier, I think many of us were concerned that some users would be technologically handicapped to handle online mediation, but that misconception has been dismissed. Across generations, users have demonstrated the willingness to explore, learn and master dispute resolution through technology. I think those who are stubborn or slothful in learning will always be playing catch-up if they don’t get going soon. Our senior mediators have been guiding users who are sometimes above the age of 80 years and never used technology before – but, it has worked perfectly fine.

To keep the process user-friendly, CAMP has developed an online platform with CREK ODR, so the entire intake process is seamlessly conducted via the online platform. The CAMP-CREK platform has been intricately designed to provide private spaces for document uploads, discussion rooms, etc. We also spend a lot of time coaching users on aspects beyond technology – camera angles, lighting, mute buttons, break rooms, etc. In the virtual world, just because you’re not sitting at the table, you feel it is less intimate. However, ironically, through video conferencing, you are closer to the other side than you would be in a face-to-face setting. Any smirk, smile, frown or sound is easily picked up. Therefore, users must be made aware of their online behaviour.

5. Do you see this as a growing problem in online mediation in India that people somehow take it too casually, because it’s essentially in their bedrooms?

A lot of people don’t have the luxury of a proper office and can have kids and cats playing around, so if you have to take a call in your bedroom then you have to, there’s no way around it and we have to respect it. I mean I’m really not concerned about that, my biggest concern is the internet in India: it’s just horrible and you can’t rely on it. For us, if we have a video-conference with a party, we make sure that we have contingency plans in place. So if a party drops out from the video call, we quickly call them up and ask what happened and if we should continue on a WhatsApp call or a normal phone call – or just reschedule. You have to understand that leaving a video-conferencing call unexpectedly literally translates to getting up and leaving the conference room in a physical world. We can’t take it for granted by saying, “Oh, she just dropped off the call. She’ll be back in five minutes.”

At CAMP, we take into account the smallest of aspect that play on users minds. Try and understand that if one party drops off the video-conference and the other side is still on call, they’re going to be anxious about the communications taking place in their absence. The element of trust and neutrality is very important to mediation and situations like these, which may sound silly, can actually lead to trust issues.

6. Does online mediation see a larger role for research? How can one equip themselves for the same?

There is a lot of scope for mediating lawyers to explore fields of research beyond law while preparing to represent their clients in a dispute – commercial or non-commercial. Today’s lawyers are not just about the law; today’s lawyers train themselves to understand concepts beyond the law, matters relating to business, markets, policies, psychology, sociology, neurobiology, data analysis, etc. As a mediation lawyer using technology, it is easier to get your point across as you can present all these facts, figures and graphs by using the screen-share option.

Further, as law students nurtured in a traditional adversarial setting, we are predominantly trained to look at the problem and forget that there’s a person behind the problem; but mediation demands that mediating lawyers never forget the person. So there’s a lot of scope for research in understanding the problem and understanding the client who faces the problem.

For example, in a cross-cultural deal, knowing the different habits, traditions, morals, likes and dislikes of the other side, helps lawyers prep their client to strike the right rapport in a mediation setting. Even in the most intense, high-value commercial disputes, it is small cultural, personal mannerisms that either make or break the deal.

On the point of legal research, we always suggest that lawyers to do a sincere research and analyse their chances in court. The need for legal research is all the same, but the way of presenting it is different. Suppose you have your 3-4 precedents on the case and you’re confident that if you went to court, the judge would rule in your favour. Now, instead of shoving it in the other side’s face, you can have a frank chat with them in a mediation. “As per our understanding, based on the past five cases of similar facts and evidence, this is how the court in our concerned jurisdiction has responded. Besides, this is how long it finally took to get closure, therefore, we are certain the better alternative can be found by ourselves in mediation.”

So, it’s a much more collaborative language that lawyers speak in mediation. Lawyers smartly present their own alternatives outside mediation and casually remind the opposing counsel of their chances. So, lawyers engage in-depth legal research to analyse alternatives, which is very helpful to mediation.

7. Are there any other particularity unexpected challenges that you’ve faced in online mediation?

The concern is not related to online mediation, people will eventually adapt to technology. The challenge is to make mediation as a process attractive to the user. The lawyers are the gatekeepers, they hold the key to mediation being a success in India. The immediate goal now is to convince lawyers of the advantages of mediation and that they can wear both hats – being a litigation lawyer and a mediation lawyer, depending on the case in front of them.

8. So looking at the bigger picture, Do you see a future for online mediation even after the pandemic, or is it simply a means to an end?

A8) That’s an interesting question and I’ve actually reflected on this for quite some time now. I think a lot of mediation will stay online even after the pandemic, because as I said, the advantages are plenty. Cost-cutting is obvious, but there is also easy access, which means that you can bring more people to the table. So suppose you have a mediation in Bangalore, but your client is in Delhi while you, as their counsel, are based in Bombay. In the pre-pandemic world, you and your client would have to fly out the previous night or maybe early in the morning and get there tired, then do a mediation from 9am to 9pm, exiting the day, completely exhausted. With online mediation, you can do multiple tasks in your city without travelling, besides attending short mediation sessions.

But there is a flip side to it to online mediation. I have a feeling that, eventually, people will grow tired of being in the virtual world. Instead, they’ll just want to get out there, get a cup of tea in a café and sort it out. I’ve already seen that happen, people are longing to socialise again. Therefore, there are some who are being cautious about investing into online mediation, because the future seems uncertain. For those who are investing unconditionally, I think they’re doing it after a thorough research, knowing the specific market they serve. Online mediation will also provide for more cross-cultural, trans-continental mediation – which is what excites me the most.

9. Can you give us a look into a career as a full time mediator? Specifically, what sorts of employment and business opportunities exist for a full-time mediator in India?

Firstly, you need to be a good lawyer. Of course, you don’t really need to be a lawyer or a law student to be a mediator; and maybe, India will soon have mediators from different professionals backgrounds. More than mediators, we need skilled and smart mediation lawyers. Most litigation lawyers are not trained to represent their clients in mediation. There are a few people who have mastered the craft of being good mediation lawyers, despite being hard-core litigation lawyers – but these are in the minority and we need more of them.

10. On the point of business and employment opportunities, you talked about how there’s a general challenge mediation faces in trying to establish itself as a legitimate form of dispute resolution. Do you see that easing out in the next few years, to the point where people will slowly start gravitating to it and people can set up their own independent mediation practices?

I actually see that happening already, Sarthak, I know a couple of people who are already launching their own websites. They have been mediating privately over the last 5-6 years, but paying heed to the surge in interest for online mediation, they are now setting up their own offices (or e-offices as you would call them). It’s heartening to see people go out there, wear their heart on their sleeves and say, “We’re mediators! We are here to serve!”

By 2022 or 2023, I think we will see plenty of private mediators setting up their practices online. By 2025, these individuals will want to partner with each other and create institutions. The scope is immense and I think society will keep gravitating towards mediation. The pandemic has helped create awareness about mediation and mediators, which brings in healthy competition.

11. Is there a general idea of what a perfect “path” would look like, for someone in college, to achieve aforementioned employment opportunities? If there is no path, what would your advice be to students and professionals looking for a full time career in mediation?

For law students, attend the webinars that you can, attend workshops which you can afford to, keep writing, keep reading and just stay connected. Try to create awareness wherever you can, be it your family or your RWA that you’re a law student and let them know that Court isn’t the only option you have when there’s a dispute. Let them know that you have got some training and have been certified as a mediation lawyer and just start informally facilitating disputes, helping people solve their problems before they go to court. Practice mediation and negotiation in daily life –  if there’s a colony dispute, go out and solve that. You will know if you have the temperament for mediation or not.

I don’t know if there’s a proper, “perfect” path. I followed a path that doesn’t exist. So, I normally shy away from asking people to follow my path. But, you must be ready to create your own path – keep interning with mediation lawyers or mediators or mediation institutes. If you’re working under a senior lawyer, go to the backroom and scout for cases that can be mediated. Take a file to your senior and say, “Sir, I was reading this case and I was thinking we should try negotiation, and if not, engage a mediator to resolve this case.” You might lose your internship, but it’s worth a shot. So, I would say that this profession belongs to those that are ambitious, those who are not afraid to fail and are ready to chase their dreams. It requires a whole lot of resilience, passion and a constantly updated skills-set. If resolving disputes is what drew you to be a lawyer, then mediation could be your cup of tea. Try it!

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