Advocacy in simple parlance is recommendation or support or projection of a cause. Advocacy presupposes a difference of opinion or a conflict and the need to clarify the ‘knot’, get to understand the root cause and then acknowledge consequences. Mediation advocacy pre-supposes support by the mediator for resolution and projection of a cause by the counsel/ party.
Primarily, the disputants ought to be prepared for a good faith participation and know that confidentiality will not be breached. The lawyers assisting the disputants must enable them to understand the strengths and weaknesses of their positions and help them to identify their interests. The mediator then helps them to connect, strengthen the ability of disputants to find their own solutions. Unless disputants realise that they only have to use the opportunity to find a solution, changes gears in their thought process, decision making ends in an impasse.
In court referred mediation, it will be Judge who has the chance to instil confidence in the process and so advocacy starts from this point. In private mediation, the disputants and their counsel have to understand the need to have their interests addressed. Advocacy at every stage has to move disputants from their wants to their needs. Wants are often instinctive, impulsive actions/offers and needs intuitive, innovative actions/offers coupled with willingness to move on. In the dialogue, the mediator assists the disputants to build the bridge to enable trust and rapport. Then the disputants are nudged in the direction that they do not wholly understand at that point, but will get to, once the sequential negotiation happens.
To enable this process, the mediator has to be conscious of the effect of memory, mind chatter, the impatience and readiness to conclude and perceive what one wants to have, without having the ability to look at the global picture within his/herself.
REACTIONS DEFINED IN TARKA SASTRA:
Recognizing reactions of parties and their thought process becomes essential for the momentum in mediation. Tarka/Nyaya sastras categorize possible reactions as:
Prof Fog states that there is a trigger which activates a behaviour. Reactions are more often triggered by presumptions and attitudes and so for resolution of a conflict, we need to have a goal and understand the trigger behind the conflict and also the trigger that could lay the path for resolution. The process of mediation also involves defining the reasonable and unreasonable expectations. Maslowe’s Pyramid of needs defines the hierarchy. Whether it is business or a relationship conflict, each disputant wants to protect their ‘territory’ and be perceived as the winner. Satisfying self-esteem, reiterating the need to be ‘humane’ and enabling ability to respond, becomes the next stage in the advocacy of the mediator. The Mediator has to at the outset, understand the Self concept cycle to enable parties to move from understand the parameters of the conflict:
Raju and Balu formed a partnership to manufacture parts and supply to a major company. Balu had contributed the money for buying the land and with his technical expertise promoted the business in 1970. Raju was an accountant who initially helped Balu to keep his accounts and then became a partner in the business as it slowly expanded into a fruitful one. Raju’s nephew, Anil, joined as a partner in 2000 as the production engineer when both Raju and Balu needed a younger person to run around. So their partnership was reconstituted to say that balu’s share was 2/3rd and Raju and anil would share 1/3 of the profits. By 2005, both Raju and Balu could not attend the factory on a day to day basis and exchanges led to filing suits for dissolution of the partnership and for accounting. Balu believed that he had been unreasonably thrown out of the business and had suffered great mental turmoil and had to be justly compensated for the breach of trust.
The case was referred to mediation in 2014 after 8 years in court at the trial stage itself. Both balu and raju insisted that the land had to be sold and that they must be given a major share. The liability statement by the auditor was another issue. During the course of discussions, Anil and Balu had a lot of affectionate exchanges. While balu insisted that the land would fetch more money and that by giving out their differences, Raju had invited low offers for the sale of the factory. The mediator tried to point out that by showing others that they were not getting along, it was possible that they would not get the best price for the land. Balu understood this and agreed that they would stay together and sell and then talk about splitting the proceeds to get the best possible price.
During this process, it came about that Raju was not doing well and he could not attend mediation. Anil offered to get an audited statement of the assets and liabilities and then come for a discussion. Balu wanted a value put on the land, good will and then to think of selling. The mediator then asked Balu, the reason for starting the business. Balu proudly said that he had the technical knowledge, he loved his work and also wanted money to support his family. When the mediator asked him for other reasons, he said that it was in the interest of the nation, to succeed in his business and to bring about employment for others. The mediator then asked, you have spent more than 40 years in the business, what is the value for your life spent in it and how do you rate the goodwill in the business with that. Balu said that the immense satisfaction that he got from the growth of the business could not be valued. The mediator then asked, how are you going to value your share then.
Anil then intervened to say, that he wanted to talk to Balu directly and told him that he wanted to take over the business and pay the share to both Balu and raju. The discussion then proceeded on how it was to be valued. At one point, balu said that he needed the money to support himself and his wife and that Raju also being old, needed money. When the mediator asked him what would Anil need then, Balu said that Anil had two daughters to be married and so that was also to be provided for. So the mediator asked, whether it would be good to ask Anil to make the business work then and whether Balu could give his expert guidance.
At this point, the old man broke into a grin and said that Anil’s father had taught him accountancy and skills to which the mediator laughingly retorted that this maybe the reason for Balu to be good at accounts. Balu conceded that he had been taught well and started wondering whether he could re-locate and work in the business again. When the mediator encouraged him to think about how he could help Anil and also see the business grow which would give him satisfaction he said that he was prepared to work again but wanted to make sure that his wife’s and his future needs would be met adequately, considering the rise in the cost of living and their health needs.
The goal here was not splitting of assets but need to be recognized and valued. All of them had affection and respect for each other, but were blinded by their differences. Once they acknowledged the possibilities they became realistic. This is the success of this resolution. There is a true accommodation of interests of all parties, acknowledgment of their relationship and respect for each other and acceptance of reality. The solution that could come about is far more than what the court could give in any process. Not only that, it would not remain a mere decree, it would be acted upon for mutual benefit. Parties were able to work through their differences in a more positive and productive manner. Throughout the discussion, the mediator did not offer any advice but stressed on their relationship and asked them to think about what they wanted from each other and for themselves. Parties were flexible and open to consider options.
Often, we tend to presume, impose our conclusions, values and perceptions resulting in entanglement of legitimate concerns and issues in a mesh of misunderstanding. It is essential for a mediator to first acknowledge the pitfalls in listening to stories of the disputants about their conflict and avoid:
Once disputants understand the need for a good faith participation and voice concerns, the mediator has to nudge them towards developing options and identifying the opportunities they have. This then develops into consensus, once reality is accepted. The mediator, throughout this exercise, has to stand back and allow them to explore and reach their goal. Reaching the goal becomes possible once the behaviour changes after perceptions and thought process changes. The mind then is able to make the choice that will be satisfy the mutual needs of the disputants. This change occurs once the mediator allows space for E.A. R. – empathy, acknowledge and respect.
Mediator advocacy in a nutshell is :
HR Mediator Blog by John FordJoseph Maurer's description of confidentiality in mediation is also one of the clearest I have read: "Confidentiality We understand that privacy is important. From the start,...By John Ford