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By Arif Mohammed Madani
The Arbitration and Conciliation Act, 1996 (the Act) underwent amendments in 2015. These aimed to improve the efficiency, cost-effectiveness, and impartiality of the arbitration process. Further, in recognition of the importance of institutional arbitration, Parliament made further amendments to the Act in 2019. This aimed to establish an independent body – the Arbitration Council of India (ACI) – to promote and streamline institutional arbitration. Although this initiative is commendable, delays have marred its implementation.
Clause 10 of the 2019 Amendment introduces new sections, viz. Sections 43-A to 43-M, for the establishment of the ACI. According to Section 13-D(1), the ACI is responsible for all necessary measures to advance and support the use of arbitration. This also applies to mediation, conciliation, and other forms of alternative dispute resolution (ADR). The ACI must develop policies and guidelines for establishing, operating, and maintaining consistent professional standards for all aspects of ADR.
What is the Arbitration Council of India (ACI) responsible for?
Section 43-D(2) empowers the ACI to develop policies and guidelines governing the grading of arbitral institutions. It also empowers it to recognise professional institutes for the accreditation of arbitrators. The ACI has the authority to review and update norms to ensure quality arbitration and conciliation services. It provides a forum for discussions around establishing India as a leading centre for domestic and international arbitration and conciliation.
In addition, the ACI is responsible for recommending various measures to the Central Government. These aim to facilitate the easy resolution of commercial disputes and promote institutional arbitration by strengthening arbitral institutions. The ACI is also responsible for conducting examinations, training, and certificates on various subjects relating to arbitration and conciliation. Additionally, it must establish and maintain a depository of arbitral awards made in India. Finally, it makes recommendations regarding personnel, training, and infrastructure of arbitral institutions.
Overall, Section 43-D(2) demonstrates the ACI’s crucial role in ensuring the effective administration and promotion of arbitration in India. However, more than three years after the amendment to the Act in 2019, the establishment of the ACI remains elusive. The rules regarding various details of the CEO, Chairperson, and members of the ACI have been notified. However, the ACI itself remains just an idea.
Arbitration delayed: a growing backlog of applications
This ongoing delay has contributed to the growing backlog of applications, such as those submitted under section 11. There, the petitioner must often wait for years for the mere appointment of an arbitrator. Currently, the responsibility for such appointments falls upon the already overburdened courts. The Supreme Court of India recognised that delays in the disposition of applications would defeat the objectives of the Act.
If the ACI had been established, this burden would have been eased. In that case, the authority to appoint arbitrators in ad hoc arbitrations would have been shifted to the arbitral institutions. These would have been designated by the Supreme Court or the High Court graded by the ACI, making them credible. These institutions would have been able to effectively handle the appointment of arbitrations and resolve commercial disputes promptly. Reports from the High-Level Committee and the Law Commission have emphasised institutionalising arbitrations for greater efficiency in dispute resolution.
The much-needed boost for ODR
The ACI’s authority to grade arbitral institutions would have opened opportunities for the recognition and accreditation of online dispute resolution (ODR) institutions. These institutions specialise in resolving small claims disputes by employing and leveraging technologies like digital communication, case management tools, audio-video conferencing, digital signing and stamping, and advanced tools like natural language processing, machine learning, and artificial intelligence for automation, transcriptions, and translation. These enable them to resolve disputes at a scale from diverse geographies and demographics within just 60-90 days at a fraction of the cost otherwise expended, thereby bringing greater inclusivity and access.
The full potential of these ODR institutions should be leveraged to bring about a transformation and revolution in the administration of justice. With an alarming backlog of almost five crore pending cases, blending technology and justice delivery has become inevitable. Therefore, it is proposed that the expertise of ODR institutions must be fully exploited to help reduce the burden on the court system and bring about much-needed efficiency in the ADR ecosystem.
Conclusion
The delayed establishment of the ACI undermines the intent of the 2015 and 2019 Amendments to the Act, which aimed to streamline and improve the process of ADR in India. Action must be taken for the urgent constitution of the ACI and recognition and grading of ADR and ODR institutions, to ensure that the benefits of an efficient, cost-effective, and timely dispute resolution mechanism are realised.
In the meantime, transitional provisions can be notified to enable disputing parties to seek assistance and services from recognised ADR and ODR institutions until the ACI is fully operational and functional. This will help alleviate the burden on courts and ensure a smooth transition until the ACI is fully established. Failure to act now would only prolong the existing problems of pendency in the system and dent the efforts to make India an international hub for arbitration.
Arif Mohammed Madani is a retired district judge with 25 years of judicial experience and over 10 years of experience as an arbitrator.
Published originally on SCC Online (Realising India’s Potential to become an Arbitration and ODR Hub, 23rd February 2023).
Disputes are inevitable in human interaction, occurring in various domains such as commerce, employment, family, and more. Traditional methods of dispute resolution, such as litigation and arbitration, often come with high costs, lengthy proceedings, and limited accessibility. However, with the advent of Online Dispute Resolution (ODR), a new era of resolving conflicts has emerged. ODR is revolutionizing the field of dispute resolution and it holds immense promise for a brighter future.
What does ODR mean?
Online Dispute Resolution (ODR) is a continuously developing concept. In essence, it refers to the utilization of information and communication technology (ICT) tools to facilitate dispute resolution between parties. This involves employing a range of communication technologies, from telephones to smartphones to LED screens, as well as applications like spreadsheets, email, and messaging platforms. The primary objective of ODR is to enable dispute resolution without the physical gathering of the parties involved.
In its initial phase, ODR shares fundamental similarities with Alternative Dispute Resolution (ADR) methods such as negotiation, mediation, and arbitration. Early efforts in ODR have largely replicated ADR processes by employing basic ICT tools.
However, it is important to note that ODR does not mean merely electronic ADR (e-ADR). In more advanced stages, ODR can even function as a fourth party by incorporating algorithmic assistance tools to aid parties in finding resolutions. These technologies can manifest as intelligent decision support systems, smart negotiation tools, automated resolution systems, and machine learning.
Eventually, ODR has the potential to provide customized dispute resolution processes tailored to specific parties and their disputes. By leveraging technology tools, we can design these tailored processes to achieve optimal dispute resolution for all parties involved.
Current Framework in India
In India, the current framework for ODR requires a governance structure for regulation. Relevant legislation includes the Arbitration and Conciliation Act, 1996, the Code of Civil Procedure, 1908, and the Legal Services Authorities Act, 1987, which governs ADR and Lok Adalats.
The Commercial Courts Act, 2015, introduced pre-litigation mediation, while the Companies Act, 2013, allows for mediation in company-related disputes. The Consumer Protection Act, 2019 establishes Consumer Mediation Cells, and the Information and Technology Act, 2000 addresses the technical aspects of ODR.
The Indian Evidence Act, 1872 recognizes electronic evidence, and the Supreme Court has allowed remote conferencing for arbitrator appointments and virtual hearings. Courts encourage the use of technology to reduce overcrowding.
Recommendations for ODR Implementation
ODR has the potential for application across a variety of sectors and opportunities. Here are some important steps to realize this potential:
Bridging the digital gap
To ensure the successful implementation of ODR in India, it is crucial to address the digital literacy gap among the population. Efforts should be made to reduce this gap and provide adequate digital literacy training to the citizens. Additionally, attention should be given to improving digital infrastructure, including access to computers, smartphones, and reliable internet connections for conducting ODR proceedings. Awareness campaigns should also be conducted to educate people about ODR and its benefits.
Regulatory framework
A regulatory framework is essential for ODR implementation because it provides a legal foundation and ensures fairness. Countries have passed legislation recognizing the enforceability of electronic contracts and ODR agreements, such as the ESIGN Act and UETA in the United States. ISO standards such as ISO 27001 and ISO 37301 provide recommendations on information security and compliance management. To secure sensitive information, data protection and privacy protections are incorporated. The enforceability of ODR agreements is emphasized, making them equal to traditional dispute resolution processes, and customer protection laws provide special measures for resolving customer complaints. Accreditation and certification may be necessary to ensure quality and conformity to ethical principles. For compliance, ODR stakeholders should review applicable legislation.
Pre-litigation mediation
Pre-litigation mediation is an excellent suggestion for ODR deployment. It entails intervening early to resolve issues before official legal actions begin. Pre-litigation mediation is inexpensive and quick, allowing parties to avoid the costs and delays associated with litigation. During mediation sessions, confidentiality is preserved, promoting open conversation. Its goal is to keep connections between parties intact, especially when continuing or future interactions are at stake. The process is facilitated by an unbiased mediator, who assists parties in reaching mutually acceptable solutions. Many countries support pre-litigation mediation, emphasizing its efficacy. Overall, pre-litigation mediation provides an efficient, private, and relationship-centred method of conflict resolution.
Standards and principles
Introducing an ideal set of standards and voluntary principles can promote the adoption of ODR among stakeholders. These principles can govern the technology and design of ODR platforms, as well as establish ethical obligations for ODR centres and neutrals. By adhering to these standards, the quality and effectiveness of ODR processes can be enhanced.
Strengthening the business environment
ODR has proven to be a catalyst for improving the ease of doing business in other countries. India can follow the example of the European Union, where merchants are required to inform customers about the availability of ODR. This facilitates stricter contract enforcement, leading to a more favourable business environment and increased investment in the country.
Conclusion
Embracing ICT innovations and ODR is a transformative step for improving dispute resolution in India. It creates a business-friendly environment, enhances accessibility, and streamlines the resolution process. Integration of AI and ML technologies opens new possibilities, improving efficiency and promoting legal health and awareness. The government’s proactive support and cautious approach are essential to maximize the benefits of these advancements and establish India as a leader in efficient and accessible dispute resolution.
The judiciary and the government encourage the use of technology and institutional structure to resolve disputes. Alternative dispute resolution (ADR) and online dispute resolution (ODR) institutions help provide dispute resolution services for arbitration, mediation, and conciliation. These institutions have the requisite administrative and technical expertise.
The issue around unilateral appointment
Section 12(5) read with the Seventh Schedule in the Arbitration and Conciliation Act, 1996 (“the Act”) is important to consider. According to it, any party to the agreement or person interested in the dispute’s outcome is ineligible as an arbitrator. Further, the unilateral appointment of an arbitrator by a party to the agreement also makes them ineligible. This also applies in the case of a person interested in the outcome of the dispute. Such a person should not chart any course to dispute resolution by having the power to appoint an arbitrator. Several judgments of the Supreme Court of India and various High Courts in the country have endorsed this viewpoint.
Accordingly, several Courts, under Section 34 of the Act, have set aside awards with instances of unilateral appointment of arbitrators. Additionally, many courts have recently dismissed a number of execution/enforcement petitions, under Section 36 of the Act, on this ground.
Following is the extract of one such case:
It is strange that the NBFCs like the award holder in the case in hand continue to do a shut-eye to the above legal provision and the binding dicta of the Supreme Court which as per Article 141 of the Constitution of India is Law of the Land and continue to appoint Soul Arbitrators [sic] unilaterally. The reluctance in having a neutral arbitrator for the purpose of adjudication of disputes is either rooted in a lack of confidence in the merits of the dispute or just an act of sheer arrogance, indifference, and non-abidance of the law. They seem to be toeing the same old line of taking a chance, with a mind that they would fall in line only when some objection is taken by the respondent at any point of time or some Court in some Order objects to the same. This conscious illegality which is continuing unabatedly in blatant violation of Statutory Laws and Laws laid by the Hon’ble Supreme Court needs to be stopped and curbed effectively.
The correct legal position on the above definition is that although the above definition was proposed by Arbitration and Conciliation (Amendment) Act, 2019 i.e. Act no. 33 of 2019 but the same is yet to be notified and is as such not binding law in [the] Arbitral arena. Moreover, the proposed amendment of the Act talks of constituting an ‘Arbitration Council of India’ which, in turn, will prepare a list of Arbitration Institutions on the basis of infrastructure, the calibre of arbitrators, performance, compliance of time limits etc. As per [the] proposed amendment, under Section 11(3A) of the Act, the designation of institutions by the Hon’ble Supreme Court and the High Courts is to be carried out only as per the proposal made by the ‘Arbitration Council of India’. This Court is apprised by Ld. Counsel for the plaintiff that the controlling Ministry of Arbitration and Conciliation Act, 1996 under Allocation of Business Rules, 1961 is the Ministry of Law and Justice, Govt. of India. It is submitted that the Law Ministry, Govt. of India has already prepared and notified a Pan India “List of Arbitral Institutions” offering quality Arbitration and Mediation services and the same is available in [the] public domain.
The above-detailed discussion fairly brings to the fore one fact that the ‘Unilateral Appointment of Arbitrators’ by the NBFCs is nothing but a blatant violation and disregard of Law laid by the Full Bench of Hon’ble Supreme Court and is akin to Contempt of Court. Filing a petition seeking execution of such Ex-Parte Awards obtained through such Unilateral Appointments is nothing but a classic example of abuse of the process of Courts by Award Holders to extract money out of the hapless respondents who more often than do not have any clue about the very initiation, holding of proceeding and passing of such like Ex-Parte Arbitral Awards before the chosen Sole Arbitrators in an assembly line like fashion.
Instead of aligning their Arbitration Agreements/Clauses and Arbitral Practices in consonance with Section 12(5) read with Schedule 7 of the Arbitration and Conciliation Act, 1996 post its amendment in 2015, they continued to harp over their age-old law practices of having in-house Unilaterally Appointed Arbitrators.
As guided by the afore-discussed binding judgments of the Hon’ble Supreme Court and Hon’ble Delhi High Court, the Ex-Parte Arbitral Award dated 30.12.2017, passed by Unilaterally Appointed Sole Arbitrator namely Sh. Durai Kaliyarethnam is declared ‘Non- Executable’. Considering this petition seeking execution of a clandestinely obtained Ex-Parte Arbitral Award as an ‘Abuse of Court Process’, the Execution Petitioner is burdened with the cost of Rs.25,000/-…
Arbitration in legacy agreements through Presolv360
Presolv360 is an independent and neutral ODR platform. It administers disputes by leveraging its institutional structure through mechanisms like mediation, conciliation, and arbitration on its virtual platform. Presolv360 merely provides technical and administrative support to the parties and the arbitrator for conducting the proceedings virtually. It has no interest in the outcome of the dispute or any conflict of interest. Presolv360 plays no role whatsoever in the determination of any dispute. It does not undertake any adjudicatory functions but only provides a virtual platform along with all support services.
The Department of Legal Affairs, Ministry of Law & Justice issued a notification (as referred by the District Judge). Addressing all ADR institutions, including Presolv360, it required a list of institutions offering ADR (and ODR) on the Department’s website. Presolv360 has additionally been empanelled as a Mediation Institute for court-annexed and pre-institution mediation. This is by the Main Mediation Committee, Hon’ble Bombay High Court and the Hon’ble Bombay City Civil and Sessions Court.
How does the arbitration process work at Presolv360?
Presolv360 empanels independent, qualified arbitrators with the required competence, knowledge, and varied expertise on its panel of arbitrators. The panel is diverse and consists of retired judges and other professionals like lawyers, engineers, accountants, etc. The Act governs the arbitration proceedings. An arbitrator from the said panel, on behalf of all the parties, presides over the arbitration proceedings. Any one party cannot hand-pick the panel. Due diligence ensures that there is no connection between any person on the panel and any of the parties to the matter. For this purpose, Presolv360 may use its automated case allocation tool that runs algorithms to randomize the assignment process.
The arbitrator must provide acceptance and consent to act as an arbitrator in the dispute, confirm that he/she is qualified, possesses the required competence, knowledge, and expertise to deal with the subject matter of the dispute and undertake to devote sufficient time to conduct the arbitration proceedings within the time limits prescribed. Further, the arbitrator makes requisite disclosures prescribed under Section 12 read with the Fifth Schedule to the Act. The arbitrator further confirms that his/her relationship with the parties or counsel or the subject matter of this dispute does not fall under any of the categories specified in the Seventh Schedule to the Act.
From the inception, the parties know of the administration of the proceedings through the virtual platform/institution. Thereafter, in the notification of registration of arbitration, details of the arbitrator along with the option to seek the list of arbitrators on the panel for the purpose of choosing another arbitrator to resolve the dispute is provided to the parties. Further, the parties are also provided with a simplified procedure to challenge the assignment of the matter to the arbitrator, as per law. Accordingly, all the parties to the dispute have an equal say in the appointment of the arbitrator and the constitution of the arbitral tribunal and also have the option to challenge the arbitrator on grounds concerning the arbitrator’s independence or impartiality or qualifications.
This is not a case of unilateral appointment of the arbitrator or appointment of the arbitrator by a person interested in the outcome or award passed by the arbitrator during the arbitration. The parties learn of the assignment of the arbitrator at the same time and have equal say and opportunity with aspects concerning the appointment of the arbitrator and the constitution of the arbitral tribunal, thus eliminating any influence of either party in the appointment of the arbitrator.
Endorsing this viewpoint, the Commercial Court, Bengaluru, while deciding an application under Section 14(2) read with section 14(1)(a) of the Act3, where Presolv360 administered the arbitration proceedings, held that:
“The applicant though has sought for termination of the arbitrator’s mandate on the ground of ineligibility, none of the circumstances as specified in the Seventh Schedule are shown to have been existing. Therefore, the sole arbitrator appointed through the ODR platform, per se, cannot be held to be ineligible under Section 12(5) of the Act.”
Arbitration in prospective agreements
For new agreements, we urge the incorporation of a dispute resolution clause enabling ODR through an independent institution. Model clauses can be viewed here.
Smart contracts are self-enforcing computer programmes that become more secure on the blockchain. The blockchain is a decentralized and distributed ledger spread across the internet. It allows the storage of information in multiple locations around the world, making it difficult to lose or alter data. In addition, it has rules that govern additions to its content, which makes it difficult to spoof or edit information. The blockchain also provides encryption with public and private keys to enhance privacy and security. As the technology continues to evolve, it is becoming more reliable and trustworthy.
Blockchain and Smart Contracts in Online Dispute Resolution
Online Dispute Resolution (ODR) is increasingly using smart contracts to automate the resolution of disputes transparently and efficiently. These can save time and cost in dispute resolutions while increasing the accuracy and consistency of the outcome.
Another benefit of using smart contracts in ODR is the increased transparency and fairness of the process. The terms of the contract are transparent and publicly available. Hence, parties to the dispute can see exactly what they are agreeing to and trust in fair and impartial enforcement. This builds trust and confidence and encourages parties to resolve disputes through ODR instead of traditional forms of dispute resolution.
Despite these benefits, the use of smart contracts in ODR faces challenges. A key challenge is a need for a certain level of technical expertise to understand and use them. This can be a barrier to entry for some parties, particularly those unfamiliar with blockchain technology or coding.
Another challenge is the issue of enforceability. Because many jurisdictions don’t yet recognize smart contracts as legal, it may be difficult to enforce one’s terms in court. This can create uncertainty and may discourage some parties from using smart contracts in ODR.
Case Study I: Kleros Final Award – Mexican Court
Smart Contracts in ODR in India
Indian courts have not heavily tested the notion of blockchain arbitration yet. Historically, Indian courts have taken a relatively suspicious view of arbitration, which has only recently begun to change.
We need to examine two key facets of the applicability of smart contracts in India’s ODR space in detail:
The agreement has to be in writing
According to Section 7 of the Arbitration and Conciliation Act 1996, an arbitration agreement must be “in writing,” but communicating the agreement through “electronic means” also satisfies this requirement. An amendment to the Act in 2015 added this provision, but it does not define the term “electronic means”. A similar provision in the Information Technology Act 2000 defines “electronic means” as a method of creating an “electronic record,” which includes data stored or transmitted electronically. There is a possibility that one could consider blockchain arbitration agreements, which use smart contracts in programming code to execute actions for predetermined conditions, as a form of communication through “electronic means,” but the courts or the Law Commission have not yet definitively answered this question.
Jurisdiction/Territory
India has a reservation to the New York Convention that limits the recognition and enforcement of foreign arbitral awards to certain parties to the Convention. Blockchain arbitration — decentralized by nature — may not meet the requirements for territoriality in India and may therefore not be enforceable. This is because India has not recognized awards made online outside of any particular territory. It is possible that legislation could address this issue, and a report from NITI Aayog in October 2021 suggested that blockchain-based smart contracts could potentially transform arbitral processes.
Indian Landscape and Legal Implications
The use of smart contracts is gaining traction in India, as a way to automate their execution and reduce the need for manual intervention. The Indian government has had a chequered past with blockchain applications, including a ban on virtual currencies in 2018, which the Supreme Court later quashed. The Indian Contract Act, 1872 requires that for a contract to be valid, it must satisfy the criteria of offer, acceptance, and consideration. In the case of smart contracts, the publishing of code on a blockchain would be the equivalent of an offer, while another party’s acceptance of that offer would be their assent to the contract. The performance of the tasks outlined in the code would receive valid consideration. However, Indian law may not recognize smart contracts without digital signatures and authentication in accordance with the Information Technology Act of 2000.
Another legal implication is the issue of liability. In the event of a breach of a smart contract, it may be difficult to determine who is responsible and how to hold them accountable. This is because smart contracts are executed automatically, without the need for manual intervention. This can create uncertainty and may make it difficult to assign responsibility in the event of a breach.
Furthermore, the use of smart contracts may also have implications for existing laws and regulations. For example, they may be subject to different laws and regulations depending on the nature of the contract and the parties involved. This can create complexity and may require careful legal analysis in order to ensure compliance.
Use-cases
One of the many possible use cases of smart contracts in ODR is to automate the resolution process for disputes that arise in online transactions. Some of the scenarios are illustrated in the figure below:
Conclusion
Overall, the use of smart contracts in India is a rapidly evolving area, and there are many legal implications that need to be considered. Further work is needed to develop a clear legal framework for the use of smart contracts in India, in order to provide clarity and certainty for parties who wish to use them.
Despite the potential benefits of smart contracts, there are a number of regulatory and policy issues that need to be addressed. These include concerns about jurisdiction and the potential for fraud due to the anonymity of the process. In order for smart contracts to be implemented successfully, the Indian regulatory framework would need to be amended and aligned to govern their use.
Revving engines, screeching tires, and lightning fast pit stops – these are the words that best describe the Formula 1 (F1) racetracks. F1 is all about adrenaline-fueled excitement and high-stakes competition. Those 100 minutes of racing are filled with split-second decisions that determine victory or defeat. Similar is the journey of mediation, a mechanism of resolving conflicts amicably through dialogue and compromise. Mediation is a process of dispute resolution where a neutral third party, called the mediator, assists the disputing parties in arriving at a common mutually acceptable solution.
The twists and turns on racing tracks are often like the twists and turns that a dispute encounters on its path to resolution. Join us on this race as we peel back the layers of these seemingly disparate worlds, exploring the fascinating parallels between the high-octane drama of F1 and the artful diplomacy of mediation.
Lights out and away we go!
Planning the race:
Before every race, teams meticulously analyze data, weather conditions, and competitors’ tactics to devise winning strategies. Similarly, in mediation, it is the planning that can lead to its success. Mediators and parties strategically plan their negotiation approaches, considering factors such as interests, BATNA (Best Alternative to a Negotiated Agreement), and potential obstacles.
Problem solving skills:
Unpredictable challenges of F1 demand quick decision-making skills and adaptability, much like mediators. In the 2019 German Grand Prix, Ferrari faced challenges due to the unpredictable weather conditions. The Ferrari team principal’s ability to make decisions under uncertainty ensured that Ferrari ended up on the podium. A quick double pitstop for driver Sebastian Vettel brought him from Position 20 to Position 2.
Mediators often operate in environments that are unpredictable. Despite working with incomplete information and uncertainty, they are experts in guiding parties towards resolution of issues. Similarly, F1 team principals are often met with unexpected issues relating to weather changes, technical issues, and strategic dilemmas during a race, and must think on their feet to determine the optimal way forward.
Patience:
Mediators are experts at patiently guiding parties to a resolution while facing these emotions. Parties to a dispute face heavy emotional distress during the dispute. Patience is a virtue that resonates both in the world of F1 and in the world mediation. Multi21’ was one of the most talked about incidents of 2013 Malaysian GP. Red Bull’s team principal had to patiently address the incident between teammates Sebastian Vettel and Mark Webber. Because of which Red Bull went on to win the championship trophies that year.
Crisis management:
Tough love and mediation, as Toto Wolff once said, can help secure F1 dominance. Crisis management takes center stage in the world of F1. 2015 was a year of major crisis and chaos in the Mercedes garage. There was an intense rivalry between teammates Lewis Hamilton and Nico Roseberg. Mercedes Team principal really honed his skills as a mediator to tackle this crisis. His mediation skills were proven when the teammates displayed improved team behaviour, ultimately securing the first and runners up positions overall that year.
Similar to mediators who are often called upon to navigate emotionally charged disputes and bring parties back from the brink of breakdown. Both roles involve a keen understanding of human dynamics, strategic intervention during crises, and the ability to steer towards a resolution that preserves relationships and achieves the desired outcomes.
Communication skills:
In the high stakes world of F1, communication is not just the key, it is the steering wheel for success. Oscar Piastri, in 2023, announced controversially that he was signing with McLaren racing, despite already being signed to the Alpine F1 team. McLaren racing’s team principal used his exceptional communication skills to get the opposite parties to drop the lawsuit against Piastri. Both parties reached an amicable solution through mediation, allowing Piastri to secure a multi-year contract with McLaren racing.
Mediators must listen to the concerns and perspectives of disputing parties, fostering an environment where open communication can lead to mutually agreeable solutions. The ability to listen attentively, understand nuances, and communicate effectively is a shared strength between F1 team principals and mediators.
Decision-making under pressure:
Racing and mediation both involve making critical decisions under pressure. In F1, drivers must make split-second decisions at high speeds, often with limited visibility and intense competition. Likewise, in mediation, parties and mediators must navigate complex issues and emotions, making important decisions that can shape the outcome of the negotiation process.
Pursuit of win-win outcomes:
While F1 racing is ultimately about winning, the most successful teams understand the importance of achieving win-win outcomes within the constraints of the sport’s rules and regulations. Similarly, mediation aims to find mutually acceptable solutions that satisfy the interests of all parties involved, fostering long-term relationships and sustainable agreements.
And as we reach the end…!
As the checkered flag waves, the similarities of the speed and drama of racing with the nuanced diplomacy of mediation becomes apparent. Beyond the surface allure, both share a core philosophy – the pursuit of success and resolution in the face of challenges. F1 racing and mediation, seemingly distinct, converge at the intersection of skill, strategy, and the unwavering pursuit of a favorable outcome.
Twenty-three years ago, Rohan stood at a crossroads, determined to reunite his father, Yash Raichand, with his long-lost brother, Rahul. He knew he had a big role to play. The role of a mediator. In the year 2001, Rohan was forced to draw up an elaborate plan with no assurance of the outcome. It took him a few months and a couple of songs to become successful. Kabhi Khushi Kabhie Gham (“K3G”), is an iconic film that holds a special place in our hearts with some of us going so far as to even memorizing the dialogues.
But did you ever wonder how the film would unfold if it was happening in 2024 and if Rohan, the middleman, was equipped with Generative AI (“GenAI”) designed to be the perfect ally?
When Rohan meets GenAI…
This is how one could imagine the conversation to look like between Rohan and his ally, let’s call it Kjo. AI.
Rohan: Hey Kjo.AI, I need your help.
Kjo.AI: Of course, I am here to help. How may I assist you?
Rohan: My father and brother have not spoken to or seen each other for over 12 years. I wish to reunite them now. What can I say to my brother to convince him to come back home?
Kjo.AI: I see, so you will have to become the perfect blend of a great brother and a great son. First of all, you must understand the root cause of the conflict from each of their perspectives. Keep in mind that you would have to adopt a different approach when you speak with each of them. You also need to remind both of them about the positive and happy memories they shared together as a family. This will help soften their hearts and remind them of the love that binds them.
Rohan: Can you advise me on what exactly to say to both of them?
Kjo.AI: Sure, it is important to arrange structured conversations between the two with a focus on resolving issues rather than blaming each other. When you talk to your brother, you can first start by acknowledging his feelings. Apologize to him on behalf of the family and let him know that everyone in the family is willing to work together on these issues and that the Raichand Pariwar will also be incomplete without their eldest son. Also, emphasize how much your mother misses him. Then, you can express to him the desire to see your family reunited. You can let him know that the situation in the family has changed. And that your father deserves to be given a chance.
Rohan: Let me stop you there. This is a great start but what if my brother brings up the past?
Kjo.AI: That is a possibility. That’s when you can highlight happy memories also from the past. Additionally, explain that when he married Anjali, it was a shock for your parents. Further, put forward the thought that even parents can make mistakes. They, too, deserve a new start. You can go on to explain to him that his presence is important, especially as your parents age. After all, “It’s all about loving your parents.”
Rohan: Okay, but my father can be quite stubborn, what can I say to him?
Kjo.AI: You can start by showing him his true emotions of how much he misses his eldest son. It will help to mention to your father how wonderfully your brother is raising a family in London, and how he, too, misses his parents to no bounds. You can also highlight all the positive changes and success your brother has been able to achieve over the years. Remind your father about the importance and strength of a united family. Emphasize the need for forgiveness and the value of having both his sons with him in the future.
Remind him, “Maafi mangne se koi chota bada nahi hota, aur joh maaf kar deta hai uska dil sabse bada hota hai.”
Rohan: I am worried when they meet, they might argue again.
Kjo.AI: Yes, there is a possibility. You can get them to meet in an environment that doesn’t remind either of them of the past but makes them think of all the good times that have gone by, and the good times that can be. Maybe, the Bluewater Mall has some less crowded cafes. You can suggest that as a meeting point.
Rohan: Thank you, this is a great start. Is there anything else to keep in mind?
Kjo.AI: Yes, Zindagi mein agar kuch banna ho, kuch haasil karna ho, kuch jeetna ho, toh hamesha dil ki suno. Aur agar dil bhi koi jawab na de toh aankhen bandh karke apni maa aur papa ka naam lo. Phir dekhna jeet tumhari hogi, sirf tumhari!
With this, Rohan takes the first step to reunite the Raichand Pariwar!
Welcome to GenAI!
GenAI, as the name suggests, is the use of AI to generate content. This content can be write-ups, dialogues, solutions, innovative ideas, etc. It can be in the form of text, images, videos, etc.
One such example is the use of GenAI to solve disputes. As we jump into this simulation of modern-day K3G, envisioning its role in family mediation, we come to realize the transformative power of GenAI in the legal field. It stands as a potential game changer, reducing time, cost and effort and enhancing the overall efficiency of the legal system.
While the development of GenAI is still in its nascent stage, it is on the path to acquiring capabilities to generate more humanized responses. This kind of innovation and advancement could potentially help millions of Rohans struggling with disputes. It also presents an opportunity of solving Sunny Paji’s problem of, “Tareekh pe Tareekh”.
The journey for GenAI is undeniably a long one and for sure it will be Kabhi Khushi Kabhie Gham!