Chapter 9

Green Dispute Resolution: A Sustainable

Way of Resolving Disputes

Akash Gupta and Arushi Bajpai

Abstract Green dispute resolution refers to a process of resolving conflicts in a

manner that is environmentally and socially responsible, as well as economically
viable. This approach is becoming increasingly relevant in the corporate world, where
companies are being held accountable for their actions and the impact they have on
society and the environment. In this chapter, the authors will explore the importance
of sustainable dispute resolution in the corporate world and how this approach can
contribute to the overall well-being of society. One of the key benefits of sustainable
dispute resolution is that it promotes transparency and accountability in the resolution
of disputes. This is essential for maintaining trust in the corporate world and ensuring
that companies held responsible for their actions. By adopting sustainable dispute
resolution practices, companies can demonstrate their commitment to social and
environmental responsibility and can build trust with their stakeholders. Another
benefit of sustainable dispute resolution is that it helps to minimise the negative
impact of conflict on the environment. This is especially important in the corporate
world, where many disputes are related to environmental issues such as pollution,
resource depletion and deforestation. By adopting sustainable dispute resolution
methods, companies can help to resolve these disputes in a manner that protects the
environment and promotes sustainable practices. The chapter aims to discuss how
can corporates benefit from sustainable dispute resolution practices in developing
greater efficiency.

Keywords Sustainable · Dispute resolution · ADR · ODR · Green arbitration

The authors would like to thank Ms. Anjali Tripathi (Law Student, Jindal Global Law School) for
her research assistance.

A. Gupta (B) · A. Bajpai

Jindal Global Law School, O.P. Jindal Global University, Sonipat, India
e-mail: akash@jgu.edu.in
A. Bajpai
e-mail: abajpai@jgu.edu.in

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 155
A. Shrivastava and A. Bhusan (eds.), Sustainable Boardrooms, Responsible Leadership
and Sustainable Management, https://doi.org/10.1007/978-981-99-4837-6_9
156 A. Gupta and A. Bajpai

9.1 Introduction

The quality of our lives depends not on whether or not we have conflicts, but on how we
respond to them
—Thomas Crum.

Sustainable dispute resolution refers to a process of resolving conflicts in a

manner that is environmentally and socially responsible, as well as economically
viable. This approach is becoming increasingly relevant in the corporate world, where
companies are being held accountable for their actions and the impact they have on
society and the environment (Purvis et al., 2018). Under this chapter, the authors aim
to explore the importance of sustainable dispute resolution in the corporate world
and how this approach can contribute to the overall well-being of society.
The history of green dispute resolution can be traced back to the 1970s and 1980s,
when the environmental movement was gaining momentum. During this time, there
was growing concern about the impact of human activities on the environment, and a
recognition of the need for more sustainable practices in all areas of life. This led to
the development of the green dispute resolution movement, which aimed to provide a
mechanism for resolving environmental disputes in an environmentally responsible
manner (Agudelo et al., 2019).
One of the early pioneers of green dispute resolution was the environmental
lawyer, Christopher Stone. In 1972, Stone published an article titled ‘Should Trees
Have Standing?’ in which he argued that the environment should be given legal
standing in disputes, just like people and corporations. This idea was ground-breaking
at the time, and it sparked a debate about the rights of the environment and the
importance of sustainable practices in the resolution of disputes (Pavlik, 2015).
Whenever there exists a dispute, there are different ways of resolving the dispute.
Primarily, there are two different dispute resolution methods, adversarial and non-
adversarial. In adversarial method, like litigation in court—there is adjudication by
a third party and entire process revolves around strict procedures and formalities.
However, in non-adversarial method, including some alternative dispute resolution
mechanisms—there is no adjudication process involved and is more informal process
in nature.
Adversarial conflict resolution methods are often not described as sustainable
due to excessive depletion of resources; hence through this chapter it is advocated
that adversarial methods should only be employed in situations when it is deter-
mined that a dispute cannot be resolved through more socially focused and sustain-
able compromise-based dispute settlement procedures that is alternative dispute
resolution.
Hence in the subsequent years, the green dispute resolution movement continued
to grow, and alternative dispute resolution methods such as mediation and arbitration
began to be used more frequently in environmental disputes. These methods were
seen as a way to resolve disputes in a more sustainable manner, as they were less
adversarial than traditional court proceedings, and encouraged cooperation between
the parties involved in the dispute (Ansari et al., 2017).
9 Green Dispute Resolution: A Sustainable Way of Resolving Disputes 157

In the 1990s, the green dispute resolution movement gained further momentum
with the introduction of environmental dispute resolution processes in many coun-
tries. These processes provided a framework for resolving environmental disputes in
a manner that was both effective and environmentally responsible. They also helped
to raise awareness about the importance of sustainable practices in conflict resolution
and encouraged the development of innovative approaches to dispute resolution.
Today, green dispute resolution is an established field of practice, and it continues
to evolve as new challenges and opportunities arise. With the increasing importance
of sustainability in all areas of life, the role of green dispute resolution in promoting
sustainability is more important than ever. It is seen as a key tool for resolving environ-
mental disputes in a manner that is both effective and environmentally responsible,
and it is widely recognised as an essential component of sustainable development.
Alternative dispute resolution methods (hereinafter referred to as ‘ADR’) are arbi-
tration, mediation, negotiation, Lok Adalat and conciliation (Xavier, 2006). These
methods are often preferred over traditional litigation because they can be quicker,
less costly and more confidential in approach. Additionally, ADR can be more effec-
tive at resolving disputes because it allows parties to find creative solutions that may
not be possible in a courtroom setting. When disputes are resolved through ADR,
the parties can find solutions that consider the long-term impacts on the environ-
ment, rather than just focusing on short-term financial interests. This can lead to
more sustainable outcomes that benefit not only the parties to the dispute but also the
environment at large. It can therefore be considered as a Green Dispute Resolution.
One of the main benefits of green dispute resolution is that it can help to preserve
and protect the environment (Maity, 2018). However, whether all alternative dispute
resolution methods are sustainable or not is a debatable matter.
The present chapter aims to discuss the meaning of sustainable dispute resolution,
green dispute resolution, factors affecting the sustainability, role of online alternative
dispute resolution in light of environment, relationships and trusts in between the
disputing parties, initiatives taken by the courts and different organisations to reduce
the carbon emission. Green dispute resolution refers to the effective and efficient
approaches to resolve conflicts and disputes in a way which does not has harsh
impacts on the environment (Mania, 2015). These methods aim to find mutually
acceptable solutions that are both fair and environmentally responsible. The authors
also purport to discuss how the holistic approaches to dispute resolutions can be
incorporated by the business houses and its benefits in the long run.
Green dispute resolution can be applied to a wide range of disputes, including
commercial disputes and disputes related to natural resource management, pollu-
tion control and land use. It can also be used to resolve disputes between individ-
uals, businesses and governments. The use of green dispute resolution is becoming
increasingly important as the world faces a wide range of environmental challenges,
including climate change, deforestation and biodiversity loss. By finding mutually
acceptable solutions in line with environmental well-being, the parties can work
towards a more sustainable and healthier environment for all. One of the ways through
158 A. Gupta and A. Bajpai

which parties can resolve disputes taking into consideration environment is online
alternative dispute resolution or online dispute resolution.
During COVID-19 stage, the physical courts were completely on hold, there was
a complete shift of physical proceedings to the new normal—having things online.
This has ensured that there is no hamper in the administration of justice. This has
also reduced the impact on environment, and reduction in carbon footprints due to
less involvement of travel and transportation. However, this is not the first time when
the Indian courts have resorted to virtual reality. Way back in 2003, the Supreme
Court of India held that evidence can be recorded using video conferencing and
this is as per the procedure established by law (State of Maharashtra v. Prafulla
Desai, 2003) Following the Supreme Court judgment, subordinate courts have also
framed guidelines to take evidence using video conferencing (Model Rules on Video
Conferencing, 2020).
The judiciary has been employing the use of technology in handling the filed
cases ranging from e-filing to virtual hearing (PEW Trusts, 2021). According to the
Supreme Court, an open court is crucial to the administration of justice (Mate, 2015).
The court has observed that all judicial proceedings, whether civil, criminal or other,
must take place with complete transparency. (Naresh Shridhar Mirajkar v. State of
Maharashtra, 1966). As a result, the Supreme Court ruled that hearings should be
televised live since it is a requirement of Article 21 of the Indian Constitution to enable
access to justice in the age of virtual hearings (Swapnil Tripathi v. Supreme Court
of India, 2018). Several nations, including Brazil, England, Canada and Germany,
broadcast live coverage of Supreme Court proceedings (Katju, 2020).

9.2 Online Dispute Resolution: Time for Action

India is at the forefront of digital transactions in the world with 23 billion digital
payments in the third quarter of 2022 (Economic Times Online, 2022). This indicates
the invasion of global technology and internet in the Indian market. The expansion of
internet usage among Indians has contributed to the success of companies operating
in the digital market. These transaction means can be very convenient and opportune
but at times can prove to be dangerous. These digital transactions are not completely
safe and there exist high likelihood that some of the transaction leads to a dispute. And
in order to resolve that, there needs to be an easy and convenient form of dispute
resolution. Both the parties, including the customer and the company, should be
satisfied with the dispute resolution mechanism. Otherwise, there may be subsequent
challenges or non-performance of the outcome of the dispute resolution. In case
the parties of a dispute reside in two different countries, litigation is not the most
affordable alternative, and subsequently will prove to be highly expensive. There
comes the demand for ODR. Online dispute resolution can be a convenient method
of dispute resolution in such cases.
In the peak evolvement of technology, online dispute resolution mechanism is
the need of the hour (Chaisse & Kirkwood, 2022). Online dispute resolution is a
9 Green Dispute Resolution: A Sustainable Way of Resolving Disputes 159

form of dispute resolution where the proceedings are conducted online with the
help of human intervention. Processes for resolving disputes are typically thought
of as serving a single purpose, which is to solve issues. Online, probably more than
offline, it has become clear that dispute resolution procedures serve two purposes:
they resolve conflicts while also fostering trust (Rule & Friedberg, 2006). ‘The
power of technology to resolve disputes is exceeded by the power of technology
to generate disputes’ (Katsh & Rabinovich-Einy, 2019). However, approximately,
3–5% of online transaction ends up in dispute (Katsh & Rule, 2016).
Online dispute resolution (hereinafter referred to as ‘ODR’) refers to the use of
technology, such as the internet or mobile apps, to facilitate the resolution of disputes
remotely (Federal Trade Commission, 1999). ODR can have a range of environmental
benefits compared to traditional in-person dispute resolution methods. ODR enables
remote participation by parties in dispute resolution, which can lessen the need for
travel and the accompanying greenhouse gas emissions. ODR is frequently quicker
and more effective than in-person dispute resolution, which can cut down on the total
amount of time and resources needed to settle a disagreement (Nenstiel, 2006). ODR
can provide access to dispute resolution for those who live in isolated or underserved
locations, reducing the need for travel and also the environmental effect of conflict
resolution (Katsh, 2001, 2006, 2012). Though the creation and disposal of electronic
equipment, as well as the energy needed to run the technology employed in ODR,
can also have some adverse effects on the environment. Overall, the environmental
impact of ODR will be influenced by the particular technologies and procedures used
and the degree to which they might lessen the environmental effects of conventional
in-person dispute resolution techniques.
The COVID-19 pandemic was a stir to the further use technological means. It
served as a catalyst for more digitization of proceedings as the arbitration community
transitioned to virtual hearings, which lower the carbon footprint of arbitrations.
1. ODR in Indian Context
ODR is a new and innovative approach to dispute resolution that uses technology to
resolve disputes in a manner that is fast, cost-effective and accessible. In India, ODR
has been gaining popularity in recent years, with the introduction of several ODR
platforms, such as the Centre for Online Resolution of Disputes (CORD), SAMA
and Presolv 360.
One of the key advantages of ODR in India is its accessibility. Many people in India
are not able to access traditional court systems due to the high costs and long waiting
times associated with traditional court proceedings. ODR provides an alternative to
these traditional court systems, making dispute resolution more accessible to people
who would otherwise not be able to afford it (NITI Aayog Expert Committee on
ODR, 2021).
In addition, ODR can also provide faster, and more efficient dispute resolution
compared to traditional court systems. By using technology to facilitate the dispute
resolution process, ODR can reduce the time and cost associated with traditional
court proceedings, making it a more attractive option for majority of people (Katsh &
Rifkin, 2001).
160 A. Gupta and A. Bajpai

One of the ODR Platform in India, Presolve360 portrayed their experience in ODR
and highlighted that the disputing parties saved Rs. 362 million in costs by resolving
online, more than 7.8 million days saved due to quicker dispute resolution, saved 6.5
million sheets of paper due to paperless dispute resolution, record settlement rate
of 80% achieved in pre-institution mediation matters referred by courts, improved
digital access to justice for 430,000 parties, one resolution at a time (Presolv360,
2023).

9.3 Sustainable Dispute Resolution

ODR provides a chance to reimagine the dispute resolution system in a way that is
user centric and sustainable as well. Despite the fact that the word ‘sustainability’ is
frequently used these days, it should be underlined that the majority of people still
relate it to an environmental context. Sustainability is often associated with environ-
mental protection, living sustainably, energy conservation and reducing pollution.
The words ‘sustainable environment’ and ‘sustainable development’ habitually
appear in ordinary speech, not just among scientists but also among regular people.
Thus, it is still unclear how widespread this idea is in society, and it is important
to recognise that it goes beyond the simple desire to conserve natural resources
(Kaminskienė et al., 2014a, 2014b).
For a significant portion of 2020 and 2021, Covid-19 lockdowns made virtual
hearings a need rather than a sustainability-driven choice, but the campaign was
launched before the global pandemic. If everything is done digitally in the form
of ODR and there is no travel involved, the exchange of requests, the search for
and review of relevant materials, the preparation of responses, and the delivery of
those responses occurring in litigation and arbitration will reduce the use of paper to
complete the discovery (Doernhoefer, 2021).
According to a study by the Campaign for Greener Arbitrations, approximately
20,000 trees could be needed to offset the carbon emissions from just one inter-
national arbitration. This startling number highlights the urgency of implementing
more environmentally friendly procedures through virtual mode or use of innovative
conflict mechanisms. The Green Pledge 2019 calls on participants to take concrete
actions to lessen the impact of dispute resolution techniques on the environment.
Some of the suggestions made include avoiding needless travel, using electronic
packages for court hearings and taking public transportation to court.
A business that operates in accordance with the province’s environmental rules
can confidently avoid legal complications, such as paying offenders’ fines and other
significant penalties and settling lawsuits brought against such corporate activities.
In this context, resorting to Sustainable dispute resolution tactics holds a special
significance.
9 Green Dispute Resolution: A Sustainable Way of Resolving Disputes 161

1. Essentials for a Sustainable Dispute Resolution

There are certain essentials for being a sustainable dispute resolution, namely, privacy
and confidentiality, preserving relationship, resources, convenience and cost.
As an alternative to confrontational processes, dispute resolution techniques like
mediation are interest-oriented, reasonably inexpensive, relationship-friendly, quick,
and controlled by the parties involved, speaking of the processes’ outcomes. Even
in situations when the parties are unable to conclude, the degree of satisfaction with
these ADR processes is typically rather high. Because they aim to create social peace
rather than legal peace, these processes might be described as durable.
As opposed to other conflict resolution techniques like mediation strives to
improve interpersonal relationships, making it more oriented to society requirements.
Scandinavian model of mediation reflects the following perspective on mediation:
Although it is obvious that mediation cannot ‘save the world’, it is nevertheless impor-
tant to adopt a conflict resolution strategy that acknowledges the interdependence of
society and the needs of the individual in both large and little disputes (Vindelov,
2012). Thus, the reflexive mediation model adopts a longer perspective and has a
sustainable viewpoint. All of the criteria that were used to define sustainable conflict
resolution are completely satisfied by mediation.
Thus, the disputes in which virtual hearing is not an appropriate route of settlement
then Mediation can be considered as sustainable dispute resolution practices instead
of ODR. Advantages of mediation are slowly becoming clear, and corporate clients
are perceived to be noticing it in present scenario.
However, there are certain limitations to the growth of green dispute resolution.
One of the key challenges is the lack of standardisation and uniformity in the field.
This restraints organisations and individuals to understand and access the full range
of green dispute resolution services and can limit the growth of the field (Abdullah,
2015). Another limitation can be the lack of awareness of green dispute resolution
among some stakeholders, particularly in the developing countries (Shah et al., 2022).
As a result, companies are reluctant to adopt sustainable practices in dispute resolu-
tion mechanisms. However, as awareness of the importance of sustainable practices
continues to grow, the practice of green dispute resolution is likely to become more
widespread, leading to further innovation and growth in the field.

9.4 Mediation: The Way Forward

Mediation is more informal than its alternatives, requiring less physical infras-
tructure and supporting resources (Yeoh, 2018). In litigation, i.e., legal procedures
include judges, staff, court reporters, bailiffs and jurors, in addition to the judicial
system’s physical infrastructure (e.g., courtrooms). Even arbitration usually has more
infrastructure and formality than the modest mediation process.
In a mediation procedure, only the mediator, the parties and a few conference
rooms—virtual or otherwise are required. The little staffing and infrastructure in
162 A. Gupta and A. Bajpai

mediation directly translates to less waste from consumables, a smaller carbon foot-
print and decreased energy use. Consider the effects of the expanding usage of video-
conferencing for mediation. The necessity for parties to physically go to a central
location for all the mediation session is also replaced via videoconferencing. Video-
conferencing is the ‘green choice’ since the reduced travel costs result in a significant
reduction in carbon emissions.
There is, however, a downside to this too. While it is simple to see the environ-
mental impact of paper, notably the felling of trees, it may be more difficult to picture
and calculate the carbon emissions from the electronic gadgets required to view non-
paper documents. The sustainability issues with laptops, tablets and phones, both in
terms of the resources required to create the gadgets and the electricity required to
power them, are, nevertheless, becoming more widely recognised.
Similar to in-person hearings, remote hearings conducted via platforms like Zoom
also need power to function. These are not insurmountable issues, but they highlight
the importance of the promises’ added emphasis on internal policies, such as urging
signatories to consider sustainable energy suppliers, rather than just working proce-
dures in actual dispute proceedings. Of course, in a case where a lawyer is defending
a client in a heavily polluting sector, all of these activities could seem like small drops
in the ocean. In fact, one could make the case that representing parties in climate
actions against firms that participate in questionable practises is the best way a lawyer
can contribute to more environmentally friendly dispute resolution. While a lawyer
must always act in the best interests of the client, whoever that may be, there are
many ways they can improve the environment during the dispute resolution process,
including by using less paper, auditing their internal procedures and vendors, and
giving virtual hearings preference whenever possible.
The aim of such methods is to successfully sustain the outcome achieved after the
dispute has been resolved. They address the relational and emotional damages that
have arisen in a conflict in a collaborative and consensual manner. This approach to
conflict resolution prevents feelings of injustice, ill will, resentment, anger and dissat-
isfaction to linger and cause escalation of the conflict (Runesson & Guy, 2007). In
other words, sustainable dispute resolution is much more than deal making or fighting
for interests. Emphasising too much on deal making or interests of the party could
perpetuate the ensuing of a dispute, suppressing the issues that later emerge as feelings
of ill will and resentment, which could affect the day-to-day lives of the stakeholders
involved (Odidison, 2003). While legal processes and decision-making are seen as
value-free, sustainability in dispute resolution also underlies the need to make ethi-
cally correct decisions (Lehtinen & Salmimies, 2022). It is believed that legal justice
is not always actual justice. Law is often seen as indeterminate, conflictual, contested
and manipulable that it cannot always do ‘justice’ while resolving disputes. In some
situations, negotiated solutions or negotiated justice are more just than the legislated
or court-decided justice, even if they deviate from general principles of law (as long
as they are not unlawful) (Menkel-Meadow, 2004).
Going forward, it is important to note the difference between the two terms
‘dispute’ and ‘conflict’. The term ‘conflict’ relates to the underlying problem and is
often intangible and unstable. It relates to the emotional and relational aspects of a
9 Green Dispute Resolution: A Sustainable Way of Resolving Disputes 163

case. The term ‘dispute’, on the other hand, is about stable and concrete things such
as interests of the party, liability, guilt and innocence. Dispute is often connected
to an event with legal significance, for example, breach of contract. The outcome
of a court proceeding resolves the dispute between the parties and not the conflict.
The conflict between the parties remains and often gets escalated as a result of such
proceedings (Centre for Sustainable Justice). The judiciary functions according to
the rule of law and the extent to which it can contribute towards sustainable resolution
of a problem or conflict is also bound by law. A judge is constrained by her duties and
powers under the law and has little freedom to be innovative while offering solutions
to resolve the dispute.
Sustainability, which means ensuring a lasting solution to the conflict, could be
brought about through Alternative Dispute Resolution (‘ADR’) processes. ADR
processes such as mediation can be strategically prepared to establish a founda-
tion for sustainable conflict resolution outcomes. This way of conflict resolution
requires critical thinking and reflection. Critical reflection requires an open mind and
heart, willingness to engage and question one’s own interpretation of the situation,
suspension of blame and ability to slow things down (Odidison, 2003).
This push for mediation, according to Damian Croker, chair of the Campaign for
Greener Arbitrations’ Latin America group, could have a significant impact on the
legal system’s environmental sustainability. By switching to mediation instead of
litigation, the world will become much greener. And in terms of their clientele, legal
firms have a considerable influence on that.
The Mediators’ Green Pledge also offers a number of suggestions for signatories to
consider during the mediation process, such as bringing the pledge up in professional
conversations. By taking the Mediators’ Green Pledge (Doyle, 2022). The World’s
Mediator’s Alliance on Climate Change (WoMACC) actively encourages mediators
to find methods to make their mediation practises more eco-friendly. The pledge’s
signatories are members of a global community of conflict resolution specialists who
have pledged to taking concrete actions and exchanging advice on best practises in
order to reduce their carbon footprints. The pledge’s potential to have a beneficial
influence on mediators’ actions in a way that fundamentally strengthens an ecolog-
ically friendly method of addressing and resolving disputes (Doyle, 2022). They
understood that the Mediators’ Green Pledge allows for the expression of a wide
aspiration, therefore they encouraged their membership to join it both as individuals
and as a group of professional practitioners.

9.5 Green Arbitration

Among all the alternative dispute resolution mechanisms, the most opted mecha-
nism by the companies and industrial sector is arbitration both on domestic and
international levels due to the binding nature of its award. Though arbitration being
adversarial nature is less sustainable way of dispute resolution. Therefore, experts
164 A. Gupta and A. Bajpai

have now proposed the use of green arbitration to serve the interests of both corporate
and society.
One of the major law firms of the world, Herbert Smith Freehills, has conducted
a study which revealed that in-person hearing has a greater carbon footprint and
entails higher expenses as compared to virtual hearings. As Counsel of DLA Piper
Sanderson points out, ‘if you are cutting out photocopying, paper and flying, that not
only reduces the carbon footprint but also potentially reduces the costs involved. It
is a much more efficient way of managing a proceeding’ (Pollard, 2020). In many
instances, customers are considering the carbon emissions policy of their suppliers
themselves. Big multinationals thus will have to examine their supply chains and
how their vendors are acting in their own reporting. Therefore, it is now important
to adopt virtual sustainable dispute resolution.
The case study contrasted in-person hearings with procedurally comparable virtual
hearings and found that the in-person hearing produced 111 tonnes of CO2 equivalent
(CO2 e). This is 19 times the carbon footprint of a similar hearing held virtually
(estimated to give rise to 6 tonnes CO2 e). This CO2 e differential is similar to the
average amount of CO2 produced by 15 persons in the EU over the course of a
year. In-person hearings were also found to be around 6% more expensive than
virtual hearings, a difference worth tens of thousands of pounds sterling. For in-
person hearings, the top three sources of carbon emissions were found to be travel
(92.7% of the hearing’s overall emissions), substantial hearing preparation (3.7% of
emissions) and accommodation (2.5% of emissions).
The top three sources of carbon emissions for virtual hearings were determined
to be substantial hearing preparation (representing 70% of the hearing’s overall
emissions), virtual counsel attendance (representing 12% of emissions) and virtual
participant attendance (2% of emissions). The term ‘substantive hearing prepa-
ration’ refers to the time that the counsel teams invested in getting ready for the
hearing (including, but not limited to, time spent on drafting submissions and cross-
examinations but excludes time invested in getting ready for the hearing logisti-
cally). The study observed that in-person hearing or virtual hearing debate should
be decided on each case-to-case basis. Two important factors need to be considered
while making a choice in between in-person hearing and virtual hearing, that is,
environmental impact and cost of the hearing. There are other factors which also
affect this decision-making, namely, complexity of the dispute, availability of partic-
ipants, the amount of evidence involved in the case, number of language used on
the proceedings (Inside Arbitration, 2022) ‘If the international arbitration commu-
nity is to stay relevant, it needs to address environmental concerns as they relate to
international disputes and as they relate to each individual’s practice’ (Greenwood,
2021). In order to take into account, the realities of electronic submissions and virtual
hearings, arbitral institutions have likewise modified their rules and guidelines.
The Request for Arbitration and the Response are to be filed online, and written
communications are to be made by electronic means, in accordance with Articles 4.1
and 4.2 of the LCIA Arbitration Rules 2020. The LCIA Arbitration Rules 2020’s
Article 19.2 explicitly states that a case hearing can be conducted through conference
call, videoconference or other electronic means of communication. The newly revised
9 Green Dispute Resolution: A Sustainable Way of Resolving Disputes 165

Article 26.1 of the ICC Arbitration Rules 2021 specifically states that the arbitral
panel may choose to hold a hearing remotely. The new arbitrations must be managed
in accordance with the Stockholm Chamber of Commercial Arbitrator Guidelines,
which mandate that all parties, the arbitral panel, and the SCC all communicate and
share files electronically (Section 2, the SCC Platform). The Guidelines also suggest
that arbitrators may deduct the cost of their planes’ carbon offsets as expenditures
(Section 3, Expenses). In addition, a provision (Article 8.2) in the Revision of the IBA
Rules on the Taking Evidence in International Arbitration, introduced in December
2020, encourages tribunals to take time, expense and environmental considerations
into account when deciding whether to hold an evidentiary hearing remotely. These
innovative clauses in arbitral rules might be a reaction to the Covid-19 pandemic, but
they also highlight the chance to reduce travel and waste in international arbitration
proceedings as well as the significant role arbitral institutions and tribunals may play
in case management in a sustainable way. After the outbreak, it was anticipated that
travel and in-person hearings would partially resume. However, given the widespread
and irreversible changes in working habits that resulted, as well as given the effec-
tiveness and success of the technology available to conduct virtual meetings and put
together e-bundles, it is likely that the use of paper and other single-use materials
will continue to decline.
1. Campaign for Greener Arbitration
Progressively businesses are additionally making ‘net-zero’ commitments and
rethinking their activities, operating in a new regulatory landscape of increased envi-
ronmental, social and governance responsibilities. (Indulia et al., 2022) Corporates
and law firms have begun establishing their own sustainability goals. Herbert Smith
Freehills, for example, recently announced its intention to achieve net-zero status
by 2030. Collaborative legal projects, like the Chancery Lane Project, have risen to
prominence in an effort to provide workable legal solutions that can aid communities
and businesses in making the transition to net zero. (Alison) In addition, the arbitra-
tion community has established its own task teams to address the issue of reducing
carbon emissions associated with their work, from court cases to conferences the
practitioners attend. The international arbitration community has taken an interest in
the independent arbitrator Lucy Greenwood’s Green Pledge in particular, pushing
practitioners and arbitrators to think about the larger impact of their case management
on the environment.
The Campaign for Greener Arbitration initiative was started by Lucy Greenwood
in 2019 and the vision was to reduce the carbon footprint of the arbitration community.
She launched green pledge to reduce the effect of environment due to her arbitration
practice.
The commitment to greener forms of dispute resolution made by law firms, cham-
bers and other legal service providers across the globe shows the legal sector’s concern
about its practises’ carbon footprint while also pointing to a path forward (Pollard).
The study recommended that the long-haul flights, use of hard copy filings, use
of disposable cups can lead to reducing a substantial amount of carbon emissions
(Campaign for Greener Arbitrations Impact, 2022).
166 A. Gupta and A. Bajpai

In 2021, the Campaign has launched a Framework for the Adoption of Protocols
and six associated Protocols, namely,
(a) Green Protocol for Arbitral Proceedings and Model Green Procedural Order.
(b) Green Protocol for Law Firms, Chambers and Legal Service Providers working
in arbitration.
(c) Green Protocol for Arbitrators.
(d) Green Protocol for Arbitration Conferences.
(e) Green Protocol for Arbitral Hearing Venues.
(f) Green Protocol for Arbitral Institutions (Campaign for Greener Arbitrations
Protocols, 2022).
In the Framework, the sustainability measures provide for the use of clean energy,
reducing energy consumption, minimising printing, and use of paper, encouraging
recycling, limiting use of individual use items, partnering with ‘green’ organisations,
travelling responsibly, incentivising staff, engaging in social responsibility initiatives,
offsetting carbon emissions (Campaign for Greener Arbitrations Framework, 2022).
The Campaign looks to have gained the support of the entire international arbi-
tration community. It has received the 2020 GAR Award for Best Development as a
result. The GAR Campaign for Greener Arbitration Award for Sustainable Behaviour,
which honours the accomplishments of individuals, law firms or organisations in
promoting sustainability, has been added as a new ‘Green’ award category for the
2021 GAR Awards. With the recent introduction of the Greener Litigation Pledge, the
Campaign has also sparked a comparable movement within the domain of litigation.
As businesses adopt strategies to cut their carbon emissions, the legal profession
has seen a move towards ESG practises. A network of legal companies established
the Net Zero Lawyers Alliance in late June 2021, pledging to achieve net zero green-
house gas emissions by the year 2050. According to the 2021 QMUL International
Arbitration Survey (White & Case, 2021). More people are using virtual hearing
rooms, with 72% of survey participants saying they do so ‘often’, ‘frequently’, or
‘always’. This contrasts with survey results from 2018, where 64% of participants
said they had never used virtual hearing rooms.
There are rules and regulations in place for less-carbon-emitting arbitration, but
ultimately the parties must decide on their own greener methods. It is advised
that corporate houses consider greener conflict resolution mitigation and resolution
tactics. (Indulia et al., 2022) The epidemic has shown that arbitration proceedings
can be changed to more environmentally friendly ones, and these quick and afford-
able changes will continue while also protecting the interests of the future genera-
tions. Future developments will have a greater impact from technological progress.
Additionally, it will strengthen the process and lower carbon emissions.
9 Green Dispute Resolution: A Sustainable Way of Resolving Disputes 167

9.6 Lawyer’s Role in Sustainable Dispute Resolution

A lawyer or a practitioner plays a very important role in reaching a sustainable

resolution of a dispute. Lawyers have the primary responsibility to assess and analyse
the issues to determine the aid the stakeholders may need to help them negotiate a
sustainable outcome. Lawyers need to develop and learn strategies that will help the
stakeholders with deliberation, self-reflection, brainstorming and value assessment
while working towards a sustainable dispute resolution. These practitioners would
need to be visionaries who can apply the futuristic concept of dispute resolution.
They should be efficient at assessment of the conflict, identification of issues involved
and analysing the conflict to design appropriate strategies. They should be able to
aid stakeholders to change their perceptions about the situation without which it is
impossible to dismiss hurt feelings. In order to change the outlook towards a situation,
individual reflection and self-assessment by stakeholders is very important. However,
not all disputes can be resolved through stakeholder-driven negotiations. Conflict
resolution preparations can help determine whether or not it would be fruitful or
possible to reach a resolution.
A paper published in the Journal of Security and Sustainability Issues detailed
several important characteristics of a dispute resolution method for it to qualify
as sustainable. Such characteristics include privacy and confidentiality, outcome
aiming to preserve the relationship between parties, opportunity for communica-
tion, autonomy and control over the procedure and outcome (Kaminskienė et al.,
2014a, 2014b).
To begin with, it is important for a dispute resolution process to be private and
confidential, at least in cases involving civil disputes which are of private and personal
nature. This helps the parties to be able to engage in open communication about their
interests, needs, hesitations, etc. When the parties truly know each other’s reason
for the conflict, they can amicably try to arrive at a mutually agreeable solution
wherever possible. Court proceedings, which are open to the public and recorded,
hinders effective exchange of complete information which is critical in resolving
the underlying conflict (Rabinovich-Einy, 2021). Secondly, a sustainable dispute
resolution method focuses on preservation and continuity of good relationships while
solving the underlying conflict that is causing the animosity between the parties.
Furthermore, an opportunity for direct communication between the parties can be
very important in disputes involving family members. The dispute resolution method
should make it easier to address the emotional aspects of the case by giving the parties
an opportunity to be heard and express their views instead of third parties fighting on
their behalf. In some cases, a mere apology or venting out the anger and frustration
can help in restoring the bond between warring family members.
The parties should be the ones responsible for their future and should be given
the control over the procedure and conditions of the settlement agreement. This
autonomy encourages voluntary compliance with the agreement reached and reduces
hostility between the parties as the outcome is reached. There is greater legitimacy
168 A. Gupta and A. Bajpai

and longevity of the outcome reached by agreement. On the other hand, a court-
decided legal dispute is often favourable to only one party and disappoints the other
party.
A dispute resolution process that is efficient and affordable could also prevent
worsening of the relationship between the parties already at loggerheads. Unneces-
sary delays and excessive costs deface a dispute resolution method, which in turn
can never be sustainable. Therefore, this necessitates a method that is cost and time
efficient. The resolution should be reached in a timely manner while the conflict
between the parties still has not grown its roots (Kaminskienė et al., 2014a, 2014b).
These criteria lead to the conclusion that court litigation or even arbitration cannot
be classified as methods of sustainable dispute resolution, as also suggested by the
authors of the paper. These forms of dispute resolution are adversarial in nature,
involve insistence on the application of law, result in a binding decision by a third
party, seek to arrive at a legally correct decision, etc. They do not focus on addressing
the psychological aspects of the case or continuing or restoring the strained relation-
ship between the parties. In other words, they aim to resolve the dispute and not the
conflict. Although arbitration is based on the central idea of party autonomy, is less
formal and more flexible, guarantees confidentiality and aims at quicker resolution
of disputes, it is far from being called sustainable because of the above-mentioned
reasons.
Non-adversarial methods such as negotiation and mediation satisfy these criteria
and can be classified as sustainable methods of dispute resolution. Mediation is the
perfect example of a method that seeks to achieve sustainability by reaching a fair
compromise through a mediated communication between the parties. The mediator,
who is a trained practitioner with necessary skills, identifies the points of difference
and disagreement between the parties and helps them see the situation with a different
perspective so as to resolve the underlying conflict. The mediator does not make a
binding decision but only aids the parties in better communicating their interests and
needs to each other. Negotiation is another popular method of alternative dispute
resolution which is also sustainable. Parties involved in long-standing commercial
relationships always begin by seeking to resolve their disagreements through nego-
tiations. However, it proves to be unsuccessful in cases of highly escalated conflicts.
Moreover, it also does not involve a skilled third party assisting the resolution and
requires active efforts and positive attitude by the parties themselves.
Another specific example of a dispute resolution method that aims to achieve
sustainability is transformative mediation, which is a newer concept of resolving
internal disputes within businesses. This kind of mediation emphasizes on the use
of voice within the companies. Robert Bush and Joseph Folger, the originators of
transformative mediation, describe the transformative mediator as one who ‘helps the
parties change the quality of their conflict interaction from negative and destructive to
positive and constructive’. Bush and Folger highlight empowerment and recognition
as two key elements of transformative mediation. Empowerment is defined by them
as ‘the restoration to individuals of a sense of their value and strength and their own
capacity to make decisions and handle life’s problems’. Recognition can be defined
9 Green Dispute Resolution: A Sustainable Way of Resolving Disputes 169

as ‘the evocation in individuals of acknowledgment, understanding or empathy for

the situation and the views of others’. Such a method of dispute resolution promotes
sustainable peace (Bush & Folger, 2005). Contrary to what is argued, the methods
emphasising on sustainable peace do not distract corporations from shareholder value
creation. On the other hand, they aid shareholder value creation and encourage peace-
making in the longer run. Methods such as transformative mediation help create a
positive spiral and prevent conflict escalation or degeneration (Siedel, 2007).
Sustainable dispute resolution strategies are often talked about and discussed in
environmental or climate disputes. A contemporary example that highlights the need
for a sustainable conflict resolution method is the Okavango Delta conflict. This is
a conflict between the government and businesses trying to implement economic
development programmes and traditional communities whose subsistence liveli-
hoods depend on the natural resources in the delta. The government has enforced
restrictions on subsistence supports while negotiations have been hampered by inef-
fective government interventions. This could result in some communities circum-
venting regulations to earn their livelihood (Mbaiwa, 2022). It is clear that such
a dispute cannot be resolved by imposing sanctions or arguing law and delivering
‘justice’. Adversarial methods of resolution can never address the high emotional
stakes involved in the case. The underlying conflict needs to be resolved by providing
a lasting solution for such a dispute to be sustainably resolved. Sustainable conflict
resolution strategies such as mediation or negotiation can help in understanding the
interests and needs of the parties and in reaching a mutually agreeable solution, which
may not necessarily be grounded in law.
Sustainable dispute resolutions are a new way of thinking about ADR practices.
They are seen as agreements which have been negotiated to meet both the present and
the future needs of the parties (Odididon, 2003). The agreement would be supported
with outlines which help in sustaining the outcome. This new field of study can be
drawn by a recent spate of scholars looking at the relationship between justice and
sustainability. This includes Langhelle (2000), Barry (1999), Dobson (1998) and
Thompson (1996). There are three major works Spiroska (2014), Siedel (2007) and
Kaminskienė et al. () which are more oriented to such practice to have a sustainable
dispute resolution process.
The Lohman Cabbage Conflict Model is one of the accepted descriptions of a
sustainable conflict settlement procedure. Each disagreement is compared to a head
of cabbage in this approach. The outer leaves are enforceable legal rights and respon-
sibilities. The inner leaves stand in for the still unresolved and tangled web of feel-
ings, power struggles, unspoken goals, competing interests and expectations. The
conflict’s centre or core is where all of the leaves emerge. The young plant’s core and
inner leaves form it, while the outer leaves that protected it throughout the winter
will eventually die.
Therefore, a sustainable legal strategy permits the core to develop and the flexible
outer leaves to unfold. Judicial judgements only consider the conflict’s outermost
layers. They obstruct growth that occurs naturally.
170 A. Gupta and A. Bajpai

9.7 Conclusion

In a world, where disputes are inevitable, the resolution should be sustainable in

nature. The dispute resolution should be sustainable in both the ways, environment
and relationship. Starting with the environment impact, the courts, mediators, arbitral
tribunal, arbitration institutes and online dispute resolution platforms are taking steps
to major portion of the proceedings to the virtual mode. Moving on to keeping
relationships and trust intact, the non-adjudicatory methods like mediation provide
a good platform for the parties to try out keeping their relationship alive and find out
a potential solution to the dispute.
Online Dispute Resolution has indicated that majority of the commercial disputes
have the potential to be resolved through the virtual platform without involving the
courts. However, digital gap and digital awareness remains one of the potential issues
which needs to be considered by all the stakeholders of online dispute resolution.
Starting from the filing till the settlement agreement or arbitral awards, the entire
process is done online which does not require any considerable travel. As a conse-
quence of this, the carbon footprint in resolving these disputes is considerably lower
than any physical hearing in court. Also, if mediation is used, this can also satisfy
both the meanings of sustainability relating to environment as well as relationships.
The Campaign for Greener Arbitrations has been one of the strong steps to work in
a green way while conducting arbitrations. Before this initiative, there was no direct
guidance to the law firms, law chambers, arbitral tribunal, arbitration institution
and other service providers. A majority of law firms, law chambers, independent
arbitrators have signed up to this Campaign.
The Supreme Court of India has introduced with e-filing, virtual conferencing
to attend the proceedings in certain cases, live streaming of cases. There are some
pilot projects with respect to virtual courts in traffic challan and cheque bounce
cases in Delhi. Also, there has been a constitution of a Green Bench by Hon’ble
Dr. Justice D.Y. Chandrachud in which paper submission is not allowed. There have
been arrangements made with the Registry and IT Cell to train the Senior Advocates
in technology. The dispute resolution shall not come with a cost to environment. In
addition, if the dispute resolution can be done while keeping the trust and relationship
in between the parties, that is a more sustainable way of dispute resolution.
Businesses who are able to adopt sustainable practices in terms of dispute reso-
lution stand to gain significantly. Arbitral institutions have also made a remarkable
contribution in moderating and addressing environmental issues through institutional
rules and guidelines.
The combined efforts and cooperation at the industry level of practitioners globally
can assist in making dispute resolution mechanisms genuinely sustainable. Thus,
eventually, the idea of environment sustainability and sustainable dispute resolution
will become one of the core assets of every corporate firm’s sustainable governance.
9 Green Dispute Resolution: A Sustainable Way of Resolving Disputes 171

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