Alternate Dispute Resolution refers to the settlement of dispute without the intervention of a court. These are the less formal, time-efficient and amicable ways of settling the disputes of the contesting parties. The Indian legislature itself encourages the application of ADR mechanisms by empowering the civil courts to refer the matters to the four main jewels embedded in the crown of ADR, which are – Arbitration, Conciliation, Lok Adalat and Mediation. The focus of this article is to throw light on the techniques and effectiveness of mediation.
The process of mediation as defined by the Black Law Dictionary is “The method of non-binding dispute resolution involving a neutral third-party who tries to help the disputing parties reach a neutrally agreeable solution”. Similarly, Christopher Moore who is an authority and renounced writer in the field of conflict management defines Mediation as “the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no authoritative decision-making power, to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute”.
Over the past few decades, Mediation has spread its wings in almost every field of conflict resolution, be it community disputes, International Relations, divorce cases, Labour management issues, environmental disputes, or even in instances involving the violation of Intellectual Property rights. Therefore, it is quite certain that Mediation has wonderfully evolved as a process of conflict resolution. The success or failure of a mediation process depends upon the techniques and strategies used by a mediator which Ze follows throughout the process. These techniques are nothing but a toolkit or the culmination of a mediator’s previous experience which assists the mediator in resolving the deadlock between the parties. The following section of the article will elaborate upon the techniques of mediation.
Techniques of Meditation
The technique adopted in mediation depends upon the nature of the dispute, the orientation of parties, and the mediator. However, one thing that is common in almost all the techniques is the existence of feminine traits. These traits have nothing to do with stereotyping of genders but rather, it represents the value assigned to each profession or occupation. The process of Mediation requires the mediator to opt for a cooperative discourse by focusing on consensus, and the relationship between the parties. Any technique that the mediator chooses should encompass the goal of working with disputants’ emotions. Therefore, the primary skills required for mediation is to able to establish trust between the parties, to enable the parties to make an informed choice in order for them to decide according to their requirements and interest. A perfect mediation technique involves soft skills like emotional intelligence and interpersonal expertise. This is precisely the reason why some of the authors define mediation techniques as feminine in character.
The literature review of the past few decades mentions about 100s of techniques adopted for various mediators. Franciso Aponte Perez who is a prominent author in the field of Dispute Reconciliation has enlisted some of the most frequently used Techniques in Mediation, which are: Entering negotiations, Finding real positions, Conveying position, Caucus, Timing proposals, Aggressive attitude, Passive functioning, etc.
- When to enter Negotiations – The primary question is with regards to the timing during which the mediator should intervene. The rule is that the mediator should not enter into negotiations unless and until there is a genuine deadlock. Many times, the parties pretend to fake a deadlock for the mediator to intervene. This premature intervention by the mediator releases the parties from the pressure of presenting proposals and counter-proposals. A mediator should adopt a very intense discriminative attitude in order to figure out the real deadlock between the parties. A mediator can effectively function only in real situations of deadlock as he can manipulate the pressure coming from both the parties to reach an agreement.
- Evaluating Real stance of the parties – Once, the mediator reaches an understanding of the real deadlock, the next thing to do is to find the real position of the parties. This means that the mediator needs to find the actual bone of contention which is not usually at the surface of the dispute. Finding the real position of the parties helps the mediator in channeling the pressure from the disputing parties in the correct direction. This can be done through an extensive process of finding real facts, identifying and analyzing issues, understanding the economic background, possible personality clashes, and the political scheme in the conflicted environment, etc.
- Conveying Position – After understanding the real position of the parties, the job of the mediator is to convey the same to the other party with utmost understanding and caution. He should ensure that either of the parties does not confuse ‘his attempts to act as a middleman’ with ‘prejudice against one of the disputing parties’. The mediator is the actual pressure bearer in this situation. He can also be considered as the frenemy of the parties. This is because he acts as a friend when he sympathizes with the pressure of one party and conveys the same to the other disputing party. Conversely, he acts like an enemy when he represents and reflects the need and interests of the other party. However, it totally depends on how empathetically a mediator is able to convey the position of the disputing parties.
- Timing of proposals – Timing is very important in the mediation process. The mediator needs to critically evaluate when to use confidential information in order to tactfully utilize the pressure build on the parties. Premature disclosure of confidential information by either parties or the mediator can further escalate the deadlock in the negotiation. The mediator is entitled to postpone or extend the deadline in case of a real deadlock situation. This extension will only help in reaching the settlement agreement if the timing at which such an extension is granted is impeccable. This means that such a postponement in the negotiation should be offered at a time when both the parties have exhaustive all possibility of reaching consensus on a settlement. This will give the parties a new chance to reach a settlement considering the amount to new pressure which they would be subjected to.
- Caucus – This technique refers to the separation of parties. The mediator can separate the parties to discuss certain issues. But the mediator should act as the pressure bearer from the other party, in absence of which the particular party will give no consideration to the needs of the opposite party. Furthermore, the mediator should choose this technique only if he truly believes that it will be effective. The technique of caucus should not be used to delay the settlement agreement.
- Aggressive attitude and passive functioning – Many times, the mediator does not only act as a middleman but adopts a rather aggressive attitude. The need arises where the parties are suspicious of each other or when one of the parties is so meek that it has no bargaining power. Moreover, the mediator can use this technique when he has to make open recommendations and resolve smaller issues.
Conversely, there are situations when the mediator need not use an aggressive approach at all. It is therefore important for the mediator to remain passive if the parties have a well-planned tactical strategy to handle the negotiation.
7. Evaluation – This evaluation of each and every technique of mediation is important because it is necessary to find out the efficacy of the techniques to address the issues that need to be resolved.
However, analysing and reviewing various techniques used in a mediation process is a futile effort unless and until it is established without doubt that mediation is an effective conflict resolution method. The following section of this article will analyse the experiences in foreign jurisdictions with regard to commercial mediation. This can be used to access the lessons learned from the negative impacts of commercial mediation in foreign countries in order to develop mediation as a full-fledged viable alternative to Litigation and Arbitration in India.
India and Commercial Mediation
It has been observed that commercial dispute is the most common reason behind two disputing parties in India. Therefore, the Indian Judiciary felt the need of having a provision in the Indian legal system which would make it compulsory for the disputing parties to undergo commercial mediation if the bone of contention between the parties was of commercial nature. With this very same intent, the Parliament on 10th August 2018 passed “Commercial Courts, Commercial Division and Commercial Appellate Divisions of High Courts (Amendment) Bill, 2018”, whose section 12A states that “Plaintiff is mandatorily required to exhaust the remedy of mediation prior to filing a suit in accordance with the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018, unless the suit contemplates any urgent interim relief, under the Commercial Courts Act, 2015”
Therefore, at this juncture where the policymakers, the lawyers, and the courts themselves are all inclined towards the adoption of mediation techniques to resolve, it has become even more important to analyse the adverse effect of this process by looking at the experiences of foreign jurisdictions.
Disputes form an inevitable part of a business and there is no denying in the fact that the way in which dispute is handled has a huge impact on the business’s profits and feasibility. Commercial disputes largely involve irreconcilable differences which obviously cannot be resolved by a method that involves the use of emotional intelligence and unconventional behavioral tactics. The courts and tribunals on the hand other, tend to cast a shadow over the ADR mechanism like mediation and often act in a precedent-setting role. This just elaborates upon the fact the various commercial disputes are resolved through conventional litigation because it provides the legitimacy of the binding judicial verdict.
However, with correct mediation reforms, the goal of peaceful resolution of disputes can be achieved. For instance, The Italian Mediation reform, which the Italian legislature implemented in March 2010 in light of the EU Directive No 52/2008 on civil and commercial mediation.
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The Italian mediation Reform has tried to strike a fine balance between encouraging mediation through monetary incentives, for instance, the documents pertaining to any mediation procedure is tax-free, the registration fee of a mediation agreement is also exempted upto 50,00 Euros and there are numerous tax benefits in the event of settlement. Simultaneously, the Australian Law Reform Commission notes that countries should not encourage the use of mediation by providing monetary deterrents for going to court because it will block justice to courts.
The major problem regarding mediation is the unenforceability of its outcome. In most countries like New Zealand, Austria, China, Austria, Finland, Japan, Singapore, Switzerland, and Belgium the settlement agreement is not enforced unless and until it turns into a consensual award arising out of arbitration. Most of the time, the settlement agreement needs to be converted into an arbitral award or a decree by the court in order to be enforced. This caused nothing but immense loss of money and time. Such a procedure should be avoided because Article 14 of the UNCITRAL Model Law on International Commercial Conciliation states that “If the parties conclude an agreement settling a dispute, that settlement agreement is binding and enforceable.”
There is still so much to do to utilise the full potential of the mediation mechanism in India, be it institutional or legislative reforms. The primary focus should be given to improve the Quality mediators and infrastructure, to incorporate mediation in the study curricula of law schools, and to encourage mediation as a growing career option. All forms of mediation, be it court-connected, private, community, and pre-litigation mediation should be encouraged. The institutional framework of the mediation center should be strengthened in order to ensure that there is standardization in services offered.
- The Code of Civil Procedure 1908 (CPC), Section 89
- Christopher Moore, The Mediation Process: Practical Strategies for Resolving Conflict, 2nd ed. (San Francisco: Jossey-Bass Publishers, 1996) at 15
- Black Law Dictionary, Mediation
- Judith Gerson & Kathy Peiss, “Boundaries, Negotiation, Consciousness: Reconceptualizing Gender Relations” in Michael Kimmel & Amy Aronson, eds., The Gendered Society Reader (New York: Oxford University Press, 2004) 114 at 114.
- Jennifer L. Schulz, “Confectionery and Conflict Resolution? What Chocolate Reveals about Mediation” (2006) 22 Negotiation Journal 251 at 265
- Andrew Pirie, Alternative Dispute Resolution (Toronto: Irwin Law, 2000) at 151.
- Jennifer Coates, “Language, gender and career” in Sara Mills, ed., Language & Gender (New York: Longman Publishing, 1995) 13.
- Wall, J. 1981. Mediation: An analysis, review, and proposed research. Journal of Conflict Resolution 25:157-80.
- Francisco Aponte Perez, Evaluation of Mediation Techniques, Labour Law Journal, October 1959
- Commercial Courts, Commercial Division and Commercial Appellate Divisions of High Courts (Amendment) Bill, 2018, section 12A
- Luban ' The quality of justice' (1989) 66 Denver University Law Review 381
- Rachele Gabellini, The Italian Mediation Law Reform, ADR Bulletin, Volume 12, No. 3, https://mfsd.it/sys_dati_open.php open_UID=PDF_D00C059DB03AD4B0&open_source=module_upload_contents_files
- Australian Law Reform Commission ' Review of the adversarial system of litigation' Issue Paper 20 115.
- UNCITRAL Model Law on International Commercial Conciliation, 2002, Art 14
- Alok Kumar et al, Strengthening Mediation In India, A Report on Court-Connected Mediations, Final Report of Vidhi Centre for Legal Policy.
Shambhavi Sinha | Symbiosis Law School, Pune