This article has been written by Gauri Atreja, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).
In any civilised community, a fair and effective mechanism for resolving disputes is essential for safeguarding and defending citizens’ rights. The “Court brings disputes to a close and ensures that citizens can enforce their rights.” However, in most parts of the world, rising litigation costs, overburdened court schedules, and delays in case resolution have cast doubt on the system’s efficacy.
This is reflected in a Supreme Court of India judgment, which states that “interminable, time- consuming, complex, and expensive court procedures compelled jurists to seek an alternative forum that is less formal, more effective, and can speedily resolve disputes without procedural claptrap.”
Mediation, unlike arbitration or litigation, is a relatively recent process that has been utilised to resolve labour, business, community, and divorce cases. Mediation is a method that can be tailored to a variety of different types of disagreements. Although arbitration is probably the most popular form of alternative dispute resolution (ADR) outside of the courtroom, mediation is becoming more common because of the recent development of arbitration contract clauses. Commercial disagreements frequently emerge between parties that, by necessity, must be able to work together amicably. This article focuses on mediation as a mode of resolving disputes and conflicts by exploring the benefits of using mediation over all other modes of conflict resolution that are available to us today.
Meaning of mediation
Mediation is the participation of a neutral third person to support and assist individuals involved in a disagreement in reaching a resolution. Negotiation differs from mediation in the sense that the parties involved work out the issues of their own accord. They have the assistance of a third party, the mediator, in the case of mediation to help them reach an agreement. Mediation, whether official or informal, can often assist in resolving issues that have progressed beyond the stage of negotiation.
Characteristics of mediation
One of the most important aspects of mediation is that the mediator does not ‘sort things out’ for the parties involved. Instead, he or she assists the parties in collaborating to create their own agreement. Although there are many professional mediators working to mediate problems, anyone can act as a mediator in a dispute between co-workers or to reconcile two feuding friends or neighbours. Mentioned below are a few important characteristics of mediation:
- Participation is entirely voluntary.
- Face-to-face meetings between the conflicting parties
- An unbiased mediator with no decision-making power assists those involved in reaching an agreement by helping them comprehend one other’s perspectives.
- All participants have an equal opportunity to speak and clarify their point of view.
- All pertinent data is being shared.
- An agreement can be reached by both sides without being coerced/ patronized in any manner.
A mediator must possess a diverse set of abilities, including the following:
- Listening abilities that are active.
- Emotional intelligence to understand the underlying emotions; questioning and clarifying skills to grasp both the facts and the areas of debate.
- Summarising skills are used to lay out the key areas of contention and underlying emotions, as well as to assist participants in rephrasing topics in a less emotionally charged language.
- Empathy allows each side to put themselves in the shoes of the other and understand their viewpoint.
Most importantly, a mediator must avoid taking sides or do things that might portray him as acting unfairly. As a result, you’ll need to respect all parties’ perspectives and devote equal time to each individual or problem. It will never help to point out that someone is being unreasonable, but you may assist them in conducting a “reality check” by asking what they consider a reasonable outcome and whether they believe the other party would agree.
A mediator must conduct extensive research to comprehend the issues, “facts,” and views of the parties in a case. This investigation, which usually takes the form of a series of questions posed in public and private sessions, peels back the layers of the dispute and aids in determining which facts, interests, and sentiments are relevant to resolving the case. A mediator evaluates which lines of inquiry are fruitful and puts each party’s concession or compromise range to the test. These investigations allow the mediator to get a feel of what kinds of agreements are conceivable.
Managing the interaction
The interaction between parties is complex and can turn more adversarial if not controlled and mediated. The number of parties involved, of course, increases the complexity. The mediator must also serve as the facilitator in order to keep the meeting focused and fruitful. This includes the following:
- Creating a set of communication guidelines,
- Active listening is encouraged,
- Preparing for and dealing with intense emotions,
- Choosing a time and who to meet in private caucus,
- When parties are joined by a representative, managing relationships becomes more difficult.
Invention and problem solving are two methods for breaking a deadlock and increasing cooperation. A mediator can help you come up with new ideas in two ways:
- The mediator can establish an environment that allows the parties to come up with their own solutions (via empathy, investigation, and persuasion).
- The mediator might make suggestions or thoughts that the parties may not be aware of. In either situation, the mediator and the parties are likely to employ fractionation strategies.
Mediators must have strong persuasion skills – the capacity to convey impressions or ideas that change others’ perception of a situation or proposition – as well as the discernment to know when to employ them. When persuading a party to realistically analyse his or her alternative to no agreement or providing packages to test the rationality of both sides’ proposals, mediators frequently utilise increasingly convincing tactics as the case advances.
Realistic assessment of alternatives
Parties to a dispute frequently do not consider what will happen if the case is not resolved. The mediator will normally assist the parties in sorting out these alternatives to settlement, evaluating the costs and advantages of non-settlement with as much precision as feasible.
When it comes to prospective settlements, parties in a conflict frequently have tunnel vision: they think that they already know the appropriate answer. The mediator will usually assist the parties in exploring various aspects of a settlement, such as “expanding the pie” to include issues for discussion that the parties had previously overlooked.
Reformulating or reframing the problem
In most cases, parties in a dispute characterise “the problem” as the other party’s fault. It is difficult for a party to be flexible in seeking an agreement when they see the problem purely in terms of the other party’s responsibility. Fortunately, many appropriate definitions of “the problem” exist, and the mediator will usually assist the parties in finding meanings that they are comfortable with and divert them from being focused on blaming the other party. The mediator can take into account all the facts of the case and reframe the problem in terms that would help in better facilitating the solution that is being sought by the parties.
Managing anger and frustration
In most negotiations, both parties want more than they can obtain. This can cause frustration, which can then turn into rage. Sometimes the rage is visible, and other times it is hidden. The mediator will usually assist the parties in dealing with their anger so that it does not prevent them from reaching an agreement.
Distributing the pie
Most agreements entail the act of dividing up a set of resources, in some form or another. Parties, with rare exceptions, demand what they perceive to be a “fair” share of the distribution. The mediator can take the responsibility to ensure that both the parties are recipients of a fair percentage of the settlement, as per their role in the issue at hand.
Overlapping all of her/his responsibilities, the mediator must design and pursue a strategic path that will assist the parties in reaching an agreement. It’s critical to separate meaningful data from noise, establish each party’s basic criteria for agreement, “coach” the parties’ negotiating process, and appreciate the parties’ relative flexibility.
Although a little humility never hurts, it’s vital to remember that mediation doesn’t always work and that it’s not always the mediator’s responsibility if it doesn’t. It will be impossible to mediate a shared solution if members do not come prepared to discover one. Cross-cultural conflicts will always be difficult to resolve because what is accepted in one culture may be completely objectionable in another.
A skilled mediator will always endeavour to be aware of what else is going on, looking for hidden agendas and obstacles to effective problem solving. At the same time, a successful mediator will be able to separate themselves from the issue. The mediator’s job is to assist others in reaching mutually acceptable solutions to their problems without becoming engrossed in the issue themselves.
- Lecturer, Faculty of Law, ASA University Bangladesh(ASAUB), Dhaka, Bangladesh.
- BANGLADESH RESEARCH FOUNDATION JOURNAL, ISSN-2224-8404, Vol.1, No.1, February 2012
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