Mediation

Court room contest/adversarial process - Is it truely civilised?

Chief Justice Warren E. Burger termed Court litigation as too
costly, too painful, too destructive, too inefficient. Abraham
Lincoln himself a lawyer unhesitatingly lamented that often a
winner is a real loser in fee, expenses and waste of time.
Inadequacies and failures of justice delivery system be it in
India or world over are documented and accepted.
Good governance means good judicial governance or rather
good dispute resolution systems.
Alternative to court room contest is a must and mandatory
for good governance and a civilized society.
Art. 39A of the Constitution, Section 89 of the Code of Civil
procedure, Rules 5 to 8 of Order XXVII of the Code of Civil
Procedure and XXXIIA of the Code of Civil Procedure accept
and promote mediation.
Mediation has always existed but in an informal manner.
Why formalised and institutionalized mediation?
Answer
requires
understanding
importance
of
institutionalized mediation and why a common man still
prefers judicial adjudication of disputes ? How and in what
manner institutionalized mediation is different from informal
or traditional mediation?
Mediation
whether
formalised
or
traditional
,
is
empowerment, parties are their own masters and decision
makers. It is settlement by consent. De hors legalism
instilled by quest for absolute justice.
Court litigation is institutionalized and common man has
faith and confidence that the adjudication would be fair, just
and equitable. For mediation to become a viable alternative,
it must same have repose; acceptance, faith and confidence
that the outcome would be equally fair, just and equitable.

Mediation stands for self determination and formalised or

institutionalized mediation accepts the said principle with an
added and huge advantage of a un prejudiced and un biased
neutral person objectively pushing the parties to talk, speak
and find solutions. Formalised mediation therefore requires
trained mediators who are both passive and active in the
interaction. Once mediation is over, whether successful or un
successful, the trained mediator retreats and becomes
opaque as she/he has no personal relationship with any
party. The legal case if required can proceed as if there was
no mediation. This requires adherence to rules or principles.
It requires understanding human beings and their mind sets.
A mediator different from that of a judge, an adjudicator, and
an advocate who pleads and agues for a party.
Modern mediation is different . It is Rule based, systematic
and scientific. Mediator is skilled in the art of mediation, just
as judges and advocates are skilled in the art of adjudication
and oratory and legal skills. Thus skill imparting to mediators
is important.
What are essential attributes of a good modern mediator?
(a) Neutrality- Do not be judgemental, consciously or
unconsciously. He must not take sides, even when he feels
strongly.
(b) Yet he must possess legal/technical knowledge and have
ability to understand strength and weaknesses of the case of
the parties and explain or put it across without being
authoritative or sounding as a judge. Mediator is a facilitator
and not an adjudicator.
(c) Persuasive skills- Like an advocate the mediator should
have ability to communicate and have felicity of language.
But the said skills are used to enable the parties to open up
and disclose their mind and heart. Must known the
grievance.

 (d)Understanding human nature. Disputes arise because of

conflicts between two or more persons. Conflict resolution
requires why in the first place there was a conflict or the core
reason behind the conflict- is it a case of clash of egos, lack
of understanding or pure greed or selfishness etc. These are
the underlying causes of the conflict. A skilled mediator
understands the cause and then motivates and uses his
persuasive skills to enable parties to find a solution.
(e) Patience- mediation may take time. Mediator must be a
good listener.
(f) Commonsense, awareness and innovativeness. Having
identified the cause and the demands/wants, a mediator
could suggest solutions which might be acceptable and
practicable.
(g) Confidentiality is the cornerstone and edifice of
institutionalized mediation. What is said and stated must not
be divulged and put on paper or even spoken. Mediator must
not disclose facts/secrets of the parties even to the court.
The facts and secrets cannot be used for personal benefits.
Advantages of training. Past experience matters but people
learn through practice. Training makes one more efficient;
structured to task, focused and result oriented; id
entify gaps in expertise and fill up gaps.