This article is written by Ayush Agarwal, a student of UPES, Dehradun
It is well-said principle, which I found to be true if applied with sincerity, that,
‘To be a good speaker first you have to be a good listener’
Mediation is the best exercise where the phrase holds practicality. Convention holds that the mediation, which is a process that can be held anywhere and everywhere, starts with listing and ends with judgment given by the mediator. The convention does not hold true in the modern world. Process of mediation is not just about listening and speaking, it is about understanding for the benefit of society as a whole. The process, as though, doesn’t start when the mediators ask about the problem; it starts as soon as the parties enter the chamber and greets the floor.
A well conventional quote is true that ‘first impression is the last impression’. The environment of the room, the mood of the mediator and the energy in its floor marks a success of the mediation at its first instance. Mediator is an unknown person with the thought of holding a solution to a problem, a person who comes in, shares and interacts. Mediation is not just confined to the solutions of matrimonial disputes; it extends its hand upon the problem of cheque bounce, property dispute and general business transactions dispute. One thing, which is common in all the problems, is that it confers the problem of egoistic behavior behind every individual. Behind every successful mediation there is a sheer hardship of mediator who, in the process of mediation, successfully curbs the egoistic behavior of the both the parties.
There is one practical solution to a successful mediation that is a ‘win-win’ situation for both the parties. Neither of the parties loses anything through the process of mediation. After the completion of a successful mediation both the parties gets the joy of being together or if the mediation proves to be unsuccessful then parties still have an option of approaching to the Honorable court to enforce their rights. So a person never loses anything. It is somewhat a doctrine of alternative resort where no one loses, either they win, or they chose an alternative remedy.
Cases to the mediation are generally referred by the Honorable High Court to its Mediation Center for the disputes which could have an alternative redressal, could be settled outside the court and they do not create burden on the court’s proceedings. Mediation is generally carried on between two parties: the first who has approached the mediation center (generally the one who wants dispute to be settled without courts interference) and the other is the one who comes to center, because the party, who has invoked mediation, wants it to. The party invoking the process of mediation has to deposit a certain amount of money which is fixed by the mediation center, fixed as per se the financial capability of the party. A certain percentage of the amount is deducted by the mediation center and the remaining money is handed over to the other party for the expenses they incur on the travel and to make their way to the mediation center.
Mediation is an art as well as science. It works on certain laws and norms and learned through practice and experience. For the sheer comfort of both the parties, the process of mediation has no bar on the language. The party can either use English or the regional local language. The process starts with welcoming on parties with a short welcoming speech, which is mostly a written speech, read by the mediator.
It follows as such:
‘I ……..(name of the mediator) welcome you to the Allahabad High Court Mediation Center. Through the process of mediation we will be your mediator and will help you to reach a common solution. We will in no way reveal the information given by one party in front of the party if the other party does not consent so. We will not be as a witness in the court of justice. We hope that both the parties have approached this mediation center in the search of a common solution. We wish both the parties all the best and hope everyone leaves with a smile on their face.’
The opening words always help the parties to settle in the environment of the place, so that the mediation could be taken up in a very peaceful manner.
Mediation is a well-tested process in the modern scenario not a conventional hit and trial method. The process of mediation involves three different steps: the very first and foremost is welcoming the parties and finding the common problem of both the parties, the next step is meeting both the parties one by one so that the actual personal problem could be made out and then the last stage is mutually calling both the parties and to find out a common solution for both of them to come to a win- win situation.
In cases of matrimonial dispute, the parties have three different solutions to the problem that a mediator can provide. The first being that they can mutually figure out the dispute and keep aside their ego they could agree to a point as to how they want to spend their lives together. The second option which the parties hold is that they can come to a contract where the husband gives permanent alimony to the wife, and they could avoid the dispute being referred to the court. The last solution which the parties could have is that without wasting any of the time they could go back to the court and fight a long battle for their rights.
Procedure of mediation involves no legal formalities, so for this process they do not need to hire counsel and waste any further money. It is between two individuals, and no one else is needed to carry it on. After making the opening speech and telling about the end result the mediator pleads any of party to speak of the problem in a gentle manner in front of the other so that the party on the other side knows exactly the problem is. The mediator from the very beginning keeps note of all the important points and chain of events, as told by the parties in their whole communication. When the party is done with its speech, the mediator repeats the main highlighted problem to the other party. He then asks the party to reply to the allegations and convey his own story and set of problems he is facing. After the parties are done with all allegations and statement, the mediator concludes with his whole story highlighting the important problem and set of solutions. The problem generally lies with only two persons but when all set of people (the close ones) get involved with it, the problem in a way gets bigger.
The mediator after finding out the problem calls both the parties in person. Apart from the problem and the solution, the thing which counts is the will of both the parties to settle the matter and stay together. The process of personal conversation aims to check the will of both the parties to dissolve the dispute after which, only, the mediation could mark its success. Calling the person (herein referred to the person who holds the dispute) one by one, asking for a solution and then putting the mediator’s solution with it, this is how it goes. After identifying the problems, counting the will and if a possible solution could be seen, then both the persons, with whom the problem lies, are called upon and a solution is given for them to decide, to decide whether they can seek a solution or continue with dispute. If there is absence of will and no common solution, then, mediator leads the parties to a common path which could be the only possible solution to the problem that they hold. At last, both the parties are called upon together and the solution, which they wish to follow, is marked by the floor. All this happens over multiple weeks and not in a day. It takes a whole lot of time to identify and dissolve the problem. Sometimes the parties are asked to meet or to stay together if the ray of hope is seen at any instance.
The things which light up the mood apart from the environment, of the mediation center, are refreshments, refreshments which are mostly sweet in nature and at the same time not very costly as the center needs to manage the budget. Sweets, which always fill the mouth with sweetness and stays for a longer period of time, are the best thing to keep the mood light.
Mediation is a form of alternative dispute mechanism which at the instance helps the parties to settle the matter outside the court and give their life a new beginning, in turn it lowers down the burden of the courts and in turn it creates more jobs. Mediation Center is a mere replica of the old Indian culture where the elderly sit together to find a solution to the chaos created by young ones in the family. Statistics says that mediation proved to a success in 80% of the cases. Still India lacks in the amount of Mediation Centers when compared to its population. Need is to create more Center where the professionals could solve the dispute without being referred to the court. It saves money, time and emotions (being hurt). However, unfortunately, the matter mostly gets “unheard”.
