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Solutions and Future Plans of Mediation as an ADR Method

by Uma Ramanathan
December 2013 Uma Ramanathan

Mediation in our country is no more a toddler. It has started to have an identity and it is time that we devise a cohesive plan for the growth of mediation in a manner that would allow cohesion among the stakeholders in the process. Changing the mind set of all concerned is now essential to take stock of where mediation is heading and what is to be done.  It needs rediscovering, elimination, assessment and evaluation to hone it into a process that would be user friendly and justiciable.  It is common knowledge that in most processes, 20% of the input creates 80% of the outcome. 20% of the workforce projects produce 80% of the profits. 20% of the negligence causes 80% of the problems.  So let us address this 20%.

What we need today is recognition of what we lack, where we have to acquire more skills and how we adapt this process to our high context society where emotions overrule reason.  Our ideas, concepts, and skills should centre around changing our minds about mediation and to give mediation to freedom to evolve as the process it is meant to be.

The Keystone Conference 2006 evaluated what is to be done and so it will be worthwhile for us to look into the theories that this conference formulated:

GETTING ORGANISED:   
It is imperative that we formulate regulations for the conduct of mediation.  We have had an unfettered run of training mediators, but we have not evaluated their skills and it has now come to a stage where it is essential for the integrity of mediation as a process which allows self-determination. Further, we cannot be blind to the fact that there are some complaints about mediators and the process and so we need to set a process for looking into this and for correctional facility it there is something vitally wrong and could harm the process.

It is time to acknowledge that mediation has to have a conducive atmosphere.  Though centres are being opened in various districts, we have not taken stock of the fact, that unlike a lok adalat setting or any other system, mediation needs to establish trust and confidence.  Unless we provide the right ambience and space for disputants to shed their fears and concerns, mediation cannot happen as it should.

The referral judges should also note that mediation is not a process that is there to clear the docket.  It is meant to bring an understanding of the conflict and then unravelling the cause and thereafter the solution.  Therefore, the choice of the mediator for the case, the necessary thrust by the court all play an important part and it is for the judiciary to take it up as part of their judicial work, when the case is referred for mediation.  Otherwise, parties will not trust the process or be willing to try it out.

GLOBAL VIEW OF MEDIATION:
Mediators around the world are aware that there is more than one form of mediation today.  From evaluative, to facilitative, to transformative to narrative to insight, mediation is evolving as a process which focuses more on the cause and unravelling the knot in the conflict by various approaches. Understanding the benefits of each and to use the same without conflict of interest, slur on self-determination and confidentiality is the tight rope that the process is on today.
Mediators, who are lawyers have a tendency to advice and suggest.  The court has to keep an eye on self-determination and parties willingness to settle and as to how they want to settle as this is the crux of mediation.

VALIDATING THE PROCESS:
Awareness programmes for the bar and the litigant public and other citizens to enable them to understand the  nature of the process and it’s utility is essential as it is knowledge based on which a person can reason out what he has to do.  Unless everyone is aware of the benefits and the flip side of mediation, the process will not be a just process nor will it be beneficial for parties who are forced to accept it without understanding its nuances.

Lawyers and litigants ought not to be allowed to use the process to delay/ take the case out of the stream for their own ends.  Ensuring that the matter is in mediation for 60 days by the mediator and the court, gives credence to the process and a check on this is very vital.

Today, it is a fact, that most of the civil cases are getting a criminal format and when such cases get referred to mediation, there is a difficulty in ensuring enforceability. The court and the mediators have to work cohesively in this regard.

EXPANDING  KNOWLEDGE:
The availability of different kinds of mediation has made it evident that one has to have insight into emotions, behaviour, neurobiology, behavioural economics, social intelligence and so on.  Without continued education on these aspects, mediators will find themselves in a quandary to cater to the needs of the litigant public.

Regular refresher and special skills programmes should be conducted for mediators to enable them to understand techniques to be used.  Mediation is a process which necessitates continuous learning and providing the same alone will ensure the efficacy of the court mediation process.

There is a necessity for having continuous refresher programmes for the bar and the general public to build confidence in the process.

ASSISTANCE OF TECHNOLOGY:
On line mediation has become a fact and when parties are not in the same country, it may become necessary to use on line facilities to mediate.

It is evident then that we need to understand the effect of the 5 R’s on global growth of mediation in our country:

RESISTANCE & RELUCTANCE - The disputants are absolutely polorized when they come into mediation and unless they are assured that it is aligned to the judicial system, their willingness to try it out will be negligible.  It is for the referral judges, to use a couple of minutes to CONNECT with the parties and assure them that the process is VOLUNTARY, CONFIDENTIAL AND SELF-DETERMINATIVE.  Once the referral is done in the proper manner, the parties will make a tentative approach. The assisting counsel, once they understand the process and are assured that they income is not in jeopardy will co-operative and not otherwise.  So it is essential for the referral judge to allay their fears also. Above all, the control of the courts in this process should be judicious and not judicial as the process has to be totally flexible.

RESONANCE & RELIANCE:  For the disputants to use the process, they must come to accept the reliability of the mediator and trust the process. The choice of the mediator and the ambience in which mediation is done will therefore play a part in the proper conduct of mediation. Choosing the persons for training as mediators, enabling them to have continued education and allaying fears of all stakeholders is essential for the integrity of the process.

RESEARCH:  Identifying promising trends and collecting data on the conduct of mediation and putting it in a scientific manner will enable us to weigh the pros and cons and choose the effective way of mediation. Regular taking stock and analysis is very essential to understand whether the growth is positive or negative. Opportunity to study and present papers will go a long way.

REINVENTING: Allowing compatible formats to take shape AND USE  them would ensure optimum use of potentiality of mediation. Discussions among mediators on a regular basis to exchange learning experiences will be very beneficial to them.

REASON: Last but not the least, understanding the socio-cultural differences and needs and following what would help to nurture the all round growth of mediation can be done only by effective and objective thinking at every stage.  Monthly meetings to evaluate  and regular assessments to formulate a plan of action in consonance with the factors playing the field would go a long way to understand the effectiveness of the process.

We have to rely on the study of the causes and consequences at every stage to learn more and make an informed choice about the way mediation is to be taken forward and cannot  heard to say that this is the ONLY WAY. Let us be wanderers in the field of mediation and learn to reap a good harvest.

Ref: Howard Gardner on changing the mind.

Biography


Uma Ramanathan, Advocate, Mediator, and Mediator Trainer. She is also the Organising Secretary of the Tamilnadu Mediation and Conciliation Centre, High Court, Madras. She practiced as an advocate in the High Court Madras, Tamilnadu, India for 29 years. She has been practicing as a Mediator since 2005 and training mediators all over India since 2006. She is also a member of the Panel constituted to draft the Mediation Manual brought out by the Mediation and Conciliation Project Committee, Supreme Court of India.



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