+91 44 2815 4145
kannan@madhyastham.com
+91 44 2815 4145
kannan@madhyastham.com
In the world of conflict resolution, mediation is the new mantra! Did you read it right? If your eyes are primed to read it as an exercise in yoga, read it again! It is not meditation but a word without the letter 't' in between.
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A mediator does not force a settlement on parties. She does not necessarily make parties shift their positions to cede something unwillingly to accommodate the claims of one against another. Settle for More is the strategy.
Arriving at mediation is obviously the first thing that happens. The party may have been referred by court for exploring possibilities of settlement. It is just as well possible, you were suggested as a mediator to a party by a mutual friend who knows you. Convening the other side and setting a date and venue will be the first line of activity. At that stage, if the party has any apprehensions about a joint exercise, it shall become necessary to explain the process. It will be also an opportunity for the mediator to get friendly with the parties that will relieve the possible tension of confronting the adversary in talks after the dispute has arisen.
If you are the mediator, you must ensure that the first contact is refreshingly different.The party must experience at first hand the informal ambiance that ought to be the hallmark of the mediation centre. Offer her coffee or tea. Ask if she has any particular health concerns that might require any special attention. Congratulate the party that she has arrived at the right place where she will hopefully find her answers to the problems. Disclose your own credentials as a mediator giving details of your experience and your own present work as different from your occupation, say as a lawyer.
Assure the party that she can call to her assistance her own lawyer and will consult her at all times before a final decision is taken. Have a check list of all the introductory remarks that you will make that ought to include the voluntary nature of the deliberations, the liberty to the party to withdraw from negotiation ,the confidentiality of the deliberations and the important difference of the non-adversarial approach to finding an amicable settlement.It will be appropriate to even suggest that time and money which are casualties in court proceedings will be best spared in the mediation.
After introduction to the concept of mediation, the actual story-telling process begins. It is the litigant's turn now. Recognise that the narrator's woes are unique to the person and his/ her arrival at the mediation table is because(s)he could not solve it. Position yourself with your body slightly leaning towards that person. Keep a friendly countenance that is close but not intimidating.Not everybody can articulate his/her views properly. Do not close a sentence or supply words for the party. Allow the person the time to find the right words. If the person is too tongue tied, help the person make short sentences and ask open ended questions to keep the narration going at an easy pace.Clarify facts to the hilt and make notes of the story as it unfolds. If there is an obstruction or interruption from the other side, remind the person of the rule that you have already laid down that only one will talk and any contradictions or statements perceived as false will be stated only at the turn of narration of the other party. Train yourself to the art of listening.
Cultivate the habit from home. Listen to your spouse by keeping the newspaper by your side and do not dip your face into the paper when (s)he is talking to you! Listen to your daughter by keeping the pen down when she is telling you of an event in her class.Never say you do not have time to listen. If you have not the time and you are in the midst of an important activity, tell her of your preoccupation and assign a time to a whole hearted attention.
Sum up the narration of both parties and ensure that the parties are confident that they have said what they wanted and you have understood what they said. If their story has revealed what each expected of the other and a solution suggests itself, indicate the next step. Ask the parties, whether anyone wants to say anything in private and ask which of it shall remain confidential.Devote as much as possible equal time in the caucus to both parties.By now, the talks must be poised for the next stage of identifying the underlying Interest!
When the parties give their respective versions, they may not give all the details.There may be several reasons for this: In a typical court annexed mediation setting, both parties were perhaps not ready for mediation. They may have still apprehensions about its efficacy. They may reserve to themselves some key elements of surprise to be unbundled at the time of trial and take the wind out of the bag carefully inflated by one party. The other reason could be that they do not merely know how to unburden themselves of all the problems that they have accumulated but do not also know how to articulate the various possibilities. They may be under the wrong apprehension of their assumed rights and they may not have the objective assessment of the respective rights and weaknesses. To infuse in parties the confidence that the solutions must come from them is the first step to make them feel empowered and important. A party in court typically turns off the participative instinct and wants to be led, as it were ,to justice by the judge through their respective counsel’s initiative. Elevate the parties to approach the problems, with a just quotient high in the demands or offers that they make on each other. Here you do not act as judge to deliver justice; the parties deliver to themselves justice. Build trust between parties to the limited extent of finding solution to their instant problems.
If you suspect that the full narration has not come in the joint setting and there are several loose ends, go for caucus where the mediator must be in a position to ask why she thinks that the other party is behaving the way she does that is unacceptable. What are the take away points for settlement?What is the next best alternative to a negotiated settlement? If the mediator thinks that one of the parties is pitching the demand on the other very high or the demand is unreasonable, do not say so. If she has a counsel assisting the party, put it to the counsel and request him/her to advise the party as to how the particular demand will stand in a court of law. It is another way of making an objective rights- assessment. Do not allow your own assessment of the offer or counter offer that a person is prepared to make. What may not appeal to you as a feasible solution may appeal to the other party as viable; what you think as reasonable solution may fizzle out as unworkable by the other party. Carefully draw up on board all the several alternatives that each party is prepared to give away to get the bargain from the other party. List them on board to be seen by both parties or reveal them on by one at a joint meeting and look for the responses. Give parties time to think afresh if they seem like they have hit a road block. Don’t push for solutions too quickly. Fixing the pros and cons is like how your child fixes the ‘Match the following exercise’ at their exam.The difference here is there is no one single correct answer or solution. All or any or none in the first column will match the proposals/demands in the second column. Matching one by one and helping parties find optimal results are the vistas to enduring solutions!
Settlement is the culmination of all the efforts of talks. The result belongs to parties. It is not the mediator’s victory. Congratulate the parties as soon as the settlement is reached. Relate to them all the points of settlement and ensure that the parties have understood what they are agreeing on. If there is any loose end or a point unresolved confirm with the parties that they want it that way. Elicit when and how they propose to address the same and assess if the unresolved issue will sully the present arrangement. If it will, it is rather that the present settlement is deferred till a comprehensive one emerges. For instance, if there is a matrimonial division of property and the custody issue is not resolved, make sure that the division is not dependent on the final outcome of the custody issues. Treat them as separate issues and make the settlement that way.The settlement ought to be at all times lawful.
There cannot be a document to carry on trade on narcotics and splitting the proceeds, for instance. Or, a woman cannot consent to a separation agreement and let it remain that way without a formal decree of judicial separation. The reason is, such an agreement could be avoided by resort to court again by any of the parties.The settlement drafted in writing could be either provisional, sans legalese and left to parties with their counsel to make a more formal document with ‘whereas clauses’(!)for being filed in court or could be a pucca document drafted then and there and signed by both parties. Prepare them in originals in as many multiples sets as there are contesting parties with signatures of all of them.Do not get signatures of any minors, though minors could be beneficiaries to settlement. Any compromise that deals with minor’s interest requires the trappings of due certification by the lawful guardian and a court’s judicial imprimatur.
There is never a ‘failure’ in any settlement. The expression so called will still be a significant sign post for re-orienting parties to make a fair assessment of the merits of their respective claims and prepare them well to take the judicial decision, if it were to go back to the Court in the right spirit. Now, spread your happiness about the concluded settlement to your fellow mediators to increase your own feel good factor!
Mediation inevitably requires at least 2 parties. It is essential to invite the other party and a meeting convened. Depending on the process adopted, the mediation could be completed within few hours or at worst, a few days
The agreement drawn at a court referred mediation, when referred back and approved by the court becomes a decree. If otherwise, it will require to be enforced as an ordinary agreement.
There are limited grounds of challenge to a binding agreement. Fraud, coercion and undue influence which will vitiate any agreement could alone be the grounds. Unlawful or illegal agreements could be challenged as such.
The expenses incurred shall, unless otherwise agreed, shall be shared equally by the parties on each side. They shall normally be settled before the commencement of the talks and they may vary depending on the stakes involved.
