Procedure for Conducting Online Mediation

Online mediation in India allows parties to resolve disputes remotely through video conferencing, audio calls, secure chat rooms, encrypted emails or other electronic means. The process generally involves obtaining consent, appointing a mediator, selecting a secure platform, verifying participants, conducting joint and private sessions, negotiating settlement terms and recording the final agreement.

Confidentiality, data security, voluntary participation and proper documentation remain essential throughout online mediation.

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What is Online Mediation?

Online mediation is a form of mediation in which some or all stages of the mediation process are conducted using electronic communication technology instead of requiring the parties, mediator and lawyers to meet physically at the same location.

The process may be conducted through:

• Video conferencing platforms that allow the mediator and parties to communicate in real time and hold separate private sessions where required.
• Audio conferencing where video participation is unnecessary or technically difficult.
• Secure chat rooms through which parties and the mediator can communicate electronically.
• Encrypted email services for exchanging proposals, documents and settlement terms.
• A combination of electronic communication methods depending on the nature of the dispute and convenience of the parties.

Online mediation does not change the basic character of mediation. The mediator remains a neutral facilitator and does not decide the dispute. The final decision on whether to settle, and on what terms, remains with the parties. This is an important distinction between arbitration, conciliation and mediation, as arbitration involves adjudication by an arbitrator while mediation remains a consensual process.

Is Online Mediation Legally Recognised in India?

The Mediation Act, 2023 expressly contains a statutory framework for online mediation. Chapter VII of the Act consists of Section 30, which specifically deals with online mediation.

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Section 30 provides that online mediation, including pre-litigation mediation, may be conducted at any stage of mediation with the written consent of the parties. It recognises the use of electronic forms, computer networks, encrypted electronic mail, secure chat rooms, video conferencing and audio conferencing.

However, an important distinction must be made regarding the present legal position.

The Central Government issued a commencement notification dated 9 October 2023, bringing only specified provisions of the Mediation Act, 2023 into force. Section 30 was not included in that notification. Therefore, although Parliament has enacted Section 30 and created a detailed statutory basis for online mediation, the provision was not brought into force through that commencement notification.

Online mediation nevertheless continues to operate in India through court-annexed mediation systems, institutional mediation mechanisms, contractual arrangements and other legally permissible dispute resolution processes.

What Does Section 30 of the Mediation Act Provide?

Section 30 lays down the broad framework contemplated by Parliament for conducting online mediation.

Written Consent of Parties

Online mediation may be conducted with the written consent of the parties.

This requirement reflects important principles of mediation, particularly voluntary participation, informed consent and party autonomy. The parties should understand and accept the mode through which the process will take place.

Written consent may address matters such as:

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• agreement to participate through electronic means;
• the online platform to be used;
• participation of lawyers or authorised representatives;
• confidentiality requirements;
• electronic exchange of documents; and
• procedures to be followed if technological difficulties arise.

Different Electronic Modes Can Be Used

Section 30 does not limit online mediation to video conferencing.

It contemplates the use of:

• encrypted electronic mail;
• secure chat rooms;
• video conferencing;
• audio conferencing; and
• other suitable combinations of electronic communication.

This flexibility is important because different disputes may require different methods of communication.

Integrity and Confidentiality Must Be Protected

Section 30 places particular importance on maintaining the integrity of the proceedings and confidentiality of mediation communications.

The mediator may take appropriate steps to protect both these requirements. This becomes particularly important in online mediation because electronic proceedings create additional risks relating to recordings, unauthorised participants, data sharing and cybersecurity.

Although confidentiality is a fundamental part of mediation, there are limited circumstances in which confidentiality in mediation can be lifted in accordance with law.

Procedure for Conducting Online Mediation

There is no single technological format that must be followed in every online mediation. The actual procedure may depend on the applicable law, mediation institution, court rules, agreement between the parties and directions of the mediator.

The procedure for conducting mediation under the Mediation Act, 2023 broadly covers commencement, appointment of the mediator, conduct of proceedings, confidentiality, settlement and termination. Online mediation follows the same basic mediation structure while using electronic means for participation and communication.

A properly conducted online mediation generally involves the following stages.

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Step 1: Agreement to Refer the Dispute to Mediation

The first step is determining whether the dispute will be referred to mediation.

Mediation may arise through:

• a mediation clause contained in an existing contract;
• an agreement entered into after a dispute has arisen;
• a reference made by a court or tribunal;
• a pre-litigation mediation mechanism;
• an institutional mediation process; or
• another statutory dispute resolution mechanism.

A pending dispute may also reach mediation through a court or tribunal referral to mediation.

Where the mediation is to be conducted online, the parties should clearly agree to participation through electronic means.

The agreement should preferably specify the nature of the online process so that disputes about procedure do not arise later.

Step 2: Appointment of the Mediator

A mediator must then be appointed according to the applicable mediation procedure.

The mediator may be:

• selected directly by the parties;
• appointed through a mediation institution;
• nominated according to an existing mediation agreement; or
• appointed under a court-annexed mediation mechanism.

The appointment of mediators under the Mediation Act, 2023 is based significantly on party choice and the agreed appointment procedure.

For online mediation, technological competence becomes an additional practical consideration. The mediator should be capable of operating the selected platform, conducting private virtual sessions and protecting confidential communications.

A mediator does not act as a judge or arbitrator. The role and duties of a mediator involve assisting the parties in communicating, identifying disputed issues, examining possible solutions and attempting to reach a mutually acceptable settlement.

Step 3: Selection of a Secure Online Platform

The next step is choosing the electronic platform through which mediation will take place.

The platform should be sufficiently secure and accessible to all parties. The choice may depend on factors such as:

• reliability of the platform;
• availability of password-protected meetings;
• ability to create separate virtual rooms;
• document-sharing facilities;
• security of communications;
• accessibility for all participants; and
• quality of video and audio connectivity.

Convenience alone should not determine the choice of technology. Confidentiality and security are equally important considerations.

Step 4: Scheduling the Online Mediation

Once the mediator and platform have been finalised, the mediation session is scheduled.

The mediator or mediation institution normally communicates:

• date and time of the mediation;
• electronic meeting link;
• password or access credentials;
• details of documents required before the session;
• names of permitted participants; and
• basic instructions for joining the meeting.

Where parties are located in different cities, States or countries, the time difference may also need consideration.

Step 5: Exchange of Preliminary Information and Documents

Before the first substantive session, parties may be required to provide basic information relating to the dispute.

This may include:

• brief statements explaining the dispute;
• relevant agreements;
• correspondence between the parties;
• financial documents;
• court pleadings where litigation is already pending; and
• other material necessary to understand the dispute.

Documents should be exchanged securely. Sensitive records should not ordinarily be circulated through insecure or publicly accessible links.

The mediator may also request short mediation briefs identifying the principal issues and settlement possibilities.

Step 6: Verification of Parties and Participants

Identity verification is particularly important in online mediation.

At the beginning of the session, the mediator should confirm:

• identity of each party;
• identity of advocates and representatives;
• authority of representatives to participate or settle;
• presence of any experts, advisers or interpreters; and
• absence of unauthorised persons.

In physical mediation, the mediator can normally observe who is present in the room. Online mediation makes this more difficult.

Therefore, participants may be required to confirm that no undisclosed person is listening to or recording the proceedings.

Step 7: Preliminary Instructions by the Mediator

Before discussing the merits of the dispute, the mediator ordinarily explains how the online mediation will operate.

The preliminary instructions may deal with:

• voluntary and consensual nature of mediation;
• neutral role of the mediator;
• confidentiality requirements;
• restrictions on audio or video recording;
• procedure for joint sessions;
• procedure for private sessions;
• electronic document sharing;
• communication etiquette;
• interruptions caused by internet failure; and
• circumstances in which mediation may be adjourned.

Clear procedural instructions reduce confusion and help create confidence in the online process.

The mediator must remain independent and neutral throughout the proceedings. Conduct such as favouring a party, hiding conflicts of interest, improperly disclosing confidential information or forcing a settlement may amount to prohibited conduct of a mediator.

Step 8: Opening Joint Session

The mediator may begin with a joint session attended by all parties.

During this stage, the mediator usually explains the purpose of mediation and allows each side to present its understanding of the dispute.

The objective is not to determine which party is legally correct. Instead, the mediator attempts to identify:

• issues requiring resolution;
• areas of agreement;
• areas of disagreement;
• interests underlying the dispute; and
• possible scope for negotiated settlement.

Parties should generally be given a reasonable opportunity to explain their position.

Step 9: Joint Negotiations

After the opening statements, the mediator may facilitate discussions between the parties.

Questions may be asked to understand the dispute and clarify misunderstandings. Settlement proposals may also begin to emerge at this stage.

Relevant documents can be displayed or exchanged electronically where necessary.

The mediator may help parties evaluate practical considerations such as:

• costs of continuing litigation;
• commercial consequences;
• time involved in court proceedings;
• continuing business relationships;
• uncertainty of legal outcomes; and
• possibility of a mutually beneficial solution.

The mediator cannot force either party to accept a proposal.

Step 10: Private Online Sessions or Caucuses

A mediator may conduct separate confidential meetings with each party. These sessions are commonly known as caucuses.

In online mediation, caucuses may be conducted by placing participants in separate virtual rooms or through separate electronic meetings.

Private sessions allow parties to discuss matters that they may not wish to disclose immediately in a joint meeting.

For example, a party may privately discuss:

• settlement expectations;
• commercial concerns;
• weaknesses in its case;
• financial limitations;
• confidential business information; or
• possible compromises.

Information received during a private session should not be disclosed to the other side without appropriate permission.

Step 11: Development of Settlement Options

After understanding the interests and concerns of both sides, the mediator assists them in exploring possible solutions.

Settlement options may involve more than payment of money.

Depending on the dispute, a settlement may include:

• payment in instalments;
• modification of contractual obligations;
• return or replacement of goods;
• revised performance timelines;
• withdrawal of proceedings;
• apology or clarification;
• restructuring of a commercial relationship; or
• mutually agreed future conduct.

This flexibility is one of the principal advantages of mediation over adjudication.

Step 12: Managing Technical Difficulties

Technical interruptions are a practical risk in online mediation.

Problems may include:

• poor internet connectivity;
• inability to access the conferencing platform;
• audio or video failure;
• accidental disconnection;
• difficulty opening electronic documents; and
• device malfunction.

The mediator should establish beforehand how such problems will be handled.

A short interruption may simply require reconnection. Persistent technical difficulties may require adjournment, use of another platform, audio participation or conversion to physical or hybrid mediation.

Technical difficulties should not prevent a party from meaningfully participating in the process.

Step 13: Recording the Settlement Terms

Where the parties reach an agreement, the settlement terms should be clearly reduced to writing.

The document should accurately state:

• obligations accepted by each party;
• amounts payable, where relevant;
• payment deadlines;
• manner of payment;
• timelines for performing other obligations;
• consequences relating to pending proceedings;
• withdrawal or disposal of claims where applicable; and
• any other agreed condition.

Ambiguous settlement terms may create fresh disputes. Therefore, clarity at the drafting stage is essential.

Step 14: Signing the Settlement Agreement

Once the settlement terms are finalised, the agreement must be properly executed according to the applicable legal framework and mediation procedure.

Electronic execution may be possible where legally permissible.

The Mediation Act, 2023 also defines “secure electronic signature” in relation to online mediation by reference to electronic signatures recognised under Section 15 of the Information Technology Act, 2000.

Where necessary, parties may alternatively sign physical copies and exchange scanned versions.

The method adopted should make the identity and consent of the parties clear.

What Happens if Online Mediation Does Not Result in Settlement?

Not every mediation results in settlement.

If negotiations fail, the mediator ordinarily terminates the process in accordance with the applicable procedure. Where the matter has been referred by a court or mediation centre, a non-settlement report may be submitted in the prescribed manner.

Importantly, failure of mediation does not ordinarily permit disclosure of confidential negotiations.

Offers, concessions and statements made for settlement purposes should not automatically become evidence merely because mediation was unsuccessful.

Where litigation is already pending, the court or tribunal may continue with the proceedings. A previous unsuccessful attempt at mediation also does not necessarily prevent a later referral to mediation if circumstances subsequently make settlement possible.

The parties may then pursue litigation, arbitration or another available legal remedy.

Confidentiality in Online Mediation

Confidentiality requires additional safeguards when mediation is conducted electronically.

Important risks include:

• unauthorised screen recording;
• screenshots of confidential material;
• third persons listening outside the camera frame;
• forwarding of confidential documents;
• insecure internet connections;
• accidental screen sharing;
• unauthorised access to meeting links; and
• storage of mediation information on insecure devices.

Section 30 specifically emphasises that the integrity and confidentiality of online mediation must be maintained.

Practical safeguards may include password-protected meetings, restricted entry, encrypted communication, secure document-sharing systems and clear prohibitions against unauthorised recording.

Can Online Mediation Be Conducted Partly Offline?

Yes. From a practical perspective, mediation can also be conducted through a hybrid format, subject to the applicable procedure and consent of the parties.

For example, initial discussions may take place through video conferencing while the final settlement is executed physically. Alternatively, some participants may attend physically while others join remotely.

The appropriate format depends on accessibility, complexity of the dispute, technological facilities and requirements of the relevant mediation institution.

Advantages of Online Mediation

Online mediation has several practical benefits.

• Reduced travel and logistical costs: Parties, lawyers and mediators can participate from different locations without travelling to a mediation centre.
• Greater accessibility: Persons living in different States or countries may participate without being physically present at the same location.
• Flexible scheduling: Remote sessions can often be arranged more conveniently, particularly in commercial disputes involving several participants.
• Faster exchange of documents: Agreements, proposals and supporting documents can be circulated electronically during negotiations.
• Useful for cross-border disputes: Online mediation can reduce geographical barriers where parties are located in different jurisdictions.

Challenges in Conducting Online Mediation

Online mediation also creates difficulties that require careful management.

• Digital Access: Not every participant has reliable internet connectivity, appropriate devices or sufficient familiarity with online conferencing technology.
• Confidentiality Risks: Electronic communications may be recorded, copied or intercepted more easily than confidential conversations conducted in a controlled physical environment.
• Difficulty Reading Body Language: Mediators may find it harder to observe non-verbal communication through video conferencing, particularly where cameras are switched off or connectivity is poor.
• Cybersecurity Concerns: Sensitive commercial, personal or legal information may be exposed if unsuitable technological platforms are used.
• Establishing Privacy: It may be difficult to determine whether an undisclosed person is present in the room from which a participant is attending.

These challenges do not make online mediation ineffective, but they make careful procedural safeguards necessary.

Legal Position of Section 30 at Present

The Mediation Act, 2023 represents an important legislative development because Parliament expressly recognised online mediation as part of India’s mediation framework.

However, the commencement notification dated 9 October 2023 brought only selected provisions of the Act into force. These included Sections 1, 3 and 26; Sections 31 to 38; Sections 45 to 47; Sections 50 to 54; and Sections 56 and 57. Section 30 was not included.

Therefore, Section 30 should presently be understood as the statutory framework enacted for online mediation rather than as a provision already brought into operation through that notification.

The Act also contemplates detailed regulations regarding the manner of conducting online mediation. Section 52 empowers the Mediation Council to make regulations concerning the online mediation process.

This distinction is important when examining the present procedure for online mediation in India.

Conclusion

The procedure for conducting online mediation in India broadly follows the traditional mediation process while using electronic technology for communication, negotiations and documentation. It generally begins with consent and appointment of a mediator, followed by selection of a secure platform, verification of participants, joint and private sessions, negotiations and preparation of settlement terms.

Online mediation can reduce geographical barriers, costs and delays, but confidentiality, cybersecurity, identity verification and meaningful participation require special attention. The Mediation Act, 2023 has created a specific statutory framework for online mediation under Section 30. However, as Section 30 was not included in the 9 October 2023 commencement notification, its present legal status must be distinguished from the online mediation practices already followed by courts, institutions and parties in India.