Role of a Mediator in the Process of Mediation
Abraham Lincoln once said, “Discourage litigation. Persuade your clients to compromise, whenever you can. Point out to them the nominal winner is often a real loser- in fees, expenses and waste of time. As a peace maker, the lawyer has a superior opportunity of being a good person”.
The justice delivery system prevalent in India is of adversary nature. It pits the disputing parties against each other, causing much ill will amongst them. One of them has to win and the other has to lose. This not only harms their social relationship but also the economic conditions of the concerned parties. Nevertheless the process of litigation is usually an expensive and cumbersome one. It is well known that litigation involves a lot of technicalities, which in their actual functioning cause a lot of delay and unnecessary costs leaving a stain and stigma of enmity on both the parties. Moreover, in the wake of globalization and liberalization, to attract foreign investment in India, a friendly, speedy and less costly justice delivery system became the need of the day, together with a responsive infrastructure.
This is where an alternative to the usual judicial system becomes most essential. Hence, we have Alternative Dispute Resolutions.
As the term suggests, alternative dispute resolutions are dispute resolution techniques other than that of litigation.
In India, Arbitration and Conciliation Act, 1996 provides the guidelines for ADR in India. The model laws set by the United Nations Commission on International Trade Law (UNCITRAL) guide it. Section 89(1) of the Code of Civil Procedure also provides for settlement of disputes outside the courts.This form of dispute resolution can be classified into four broad types: 1) Arbitration 2) Mediation 3) Conciliation 4) Negotiation.
Mediation is a negotiation process where a neutral third party assists the disputing parties in amicably resolving their disputes. Mediation is known to be party-centered, meaning that the whole process revolves around the parties. They get to decide the outcome of the whole process.
Mediation has found rising popularity in India, especially in case of marital disputes. The courts themselves ask the parties to try resolving the matter through mediation so that they may reach a more amicable solution. It has been found that many a times couples go in to court and file for a divorce on grounds which are otherwise not maintainable under law. The court can only consider the facts that have been given to them, and if the law supports the facts at that time, then divorce is granted. More often than not, these situations can be resolved without necessarily breaking off the marriage. Sometimes the parties only need an experienced person to hear them out. This is why Courts suggest these married couples to go through mediation and try resolving the matter before divorcing their partners. Even in case of property disputes, mediation tries to resolve the matter in a manner, which tries to appease both parties as much as possible. Clearly there are many advantages of mediation over litigation in terms of cost effectiveness, time consumption and flexibility as far as the guiding principles are concerned. In mediation, the parties can even forego their legal entitlements if it means coming to an amicable settlement.
It must be borne in mind that mediation does not and is not necessarily meant to solve problems or disputes which patently on the face of it are illegal or illegitimate, as such mediation will be more beneficial to the law breakers, who intentionally break laws to their benefit and seek for mediation as an alternative to solve their problems, which do not enjoy any form of sanctity in law or on facts.
Mediation thus looks to resolving legitimate matters in a peaceful manner. In the whole process of mediation, a mediator has an important role to play as well.
The Mediator is a neutral third party who assists the disputing parties in their quest for a settlement. Even though the parties are the ones who get to decide the outcome of the mediation, it is the mediator who first initiates the meeting, discuss of the problem and then assists the parties to find possible solutions. The main points to keep in mind for a mediator are impartiality and neutrality. He has to be completely unbiased at all times. He doesn’t have an option to take any party’s side.His foremost task is to act as a Catalyst between the parties. He must take necessary steps to facilitate the talks between the parties and act as a guide while assisting them to reach a solution. He is not allowed to give his opinions on the case. But he can evaluate the case, give the parties an idea of what the consequences might be if the case is taken to court and then give the parties a few ideas or possible solutions that could help resolve the dispute, meaning that he may take a shot at playing the devil’s advocate.
In case of litigation, there are a number of scenarios where the parties choose to hold back some information, which may otherwise if revealed, cause the case to take a drastic change. But in case of mediation the parties actually get a chance to sit in solitude with the mediator and discuss their end of the problem. Here, it is the mediator’s job to draw out the party from his defensive shell and make them reveal the truth. While doing so, it is the mediator’s job to keep the party reassured that the words said in his presence shallbe kept completely confidential.
A mediator hence facilitates the interaction between the parties and encourages communication between them so as to arrive at an amicable settlement. He also assists each of the parties in evaluating the situation, find out the possible outcome if the matter is taken to trial and then see how best the opportunity of mediation can be made use of.
Thus, even though mediation is a party-centered process, the mediator forms a very significant block in the structure that is mediation.