TAMILNADU MEDIATION AND CONCILLIATION CENTRE, HIGH COURT MADRAS
Paper presented at the seminar on “Mediation and the role of Referral Judges”on 12th August 2012, Cochin.
There can be no caveat to the statement that the essential criterion for Justice Dispensation is collection of data and analysis. Communication is essential for exchange of information or understanding. This communication can be either verbal, para-verbal or non-verbal, that is by words, by how it is said and by body language. In all these forms, there is an exchange of data/ information/ clarification, but when it involves understanding and getting through, listening is important. Every event generates a thought, and the thought is always fed by an emotion. Satisfaction of the emotional quotient in a dispute leads to real resolution. The exchange of information, ought to therefore address concerns and that is possible through persuasion. Change in the mind set of disputants happens by sheer persuasion and the choice made by them after exchange of information is due to equanimity as hard feelings get dissipated.
Mediation attempts to use Persuasion as the main tool for resolution. It is said that a Professor of Medicine taught his students to touch the patient while listening to them instead of standing by the bed. By standing near the bed, he felt that the patient would get the impression that the doctor wanted to move away, but by touching the patient, the doctor revealed special concern. Persuasive listening is said to be concerned listening as opposed to mere listening.
An understanding of this language of communication which is speaking and listening, and it’s usage to assist negotiation for mutual benefit is the core factor of mediation. Resolution of a dispute by encouraging parties to participate in unravelling the conflict, acknowledge and understand the differences and opt for a realistic approach to enable parties to move into the future is the hallmark of mediation. The words, pramana thatparya and anumana which has been in common usage supports the theory of mediation. An understanding of what is, what is the crux and what is perceived enables the disputants to make a realistic choice. The referral Judge as the motivator has to primarily look out for these opportunities while considering referral.
MEDIATION AS ADR:Sir Dennis Byron refers to the quintessential objectives that have fuelled reform in the present justice dispensation system around the world by citing the Civil Justice Review Committee’s Report, 1995 which states that the benchmark for a civil justice system must be fairness, affordability, accessibility, timeliness, accountability, efficiency, cost effectiveness, stream lined process & administration. “Unreasonable delay in the disposal of disputes is indeed the worst enemy of justice and peace of the community. It leads to unreasonable costs. It breeds inaccessibility. It fosters frustration, and frustrates fairness. Administration of justice falls into disrepute.” It is to address this issue that we have realised that there is a necessity for highly trained, efficient and motivated persons to manage the justice dispensation system. It is more so, when the process like mediation is more personalised. Mediation has evolved as a form of problem solving which also lays emphasis on the fact that justice dispensation need not essentially be by confrontation. Frank Sanders, the pioneer of Mediation describes the process as a “sleeping giant”. The potential for resolution has to be prodded and then the awakening will happen on it’s own. The creative solutions and the different dimensions given during resolution never fail to astonish the mediator. Let us first understand the basics. Mediation is widely understood to be assistance by a Qualified, Certified, Impartial Neutral to the conflict, who opens up channels of communication between disputing parties and empowers them to make a voluntary and informed choice in the resolution of their dispute so that the disputants reach a negotiated accord. Emphasis is on Self determination, Collaboration and Creative Resolution of the dispute by addressing underlying concerns of the parties. Issues, Perceptions and Alternatives are analysed and the full range of issues are brought to the table for discussion. It is not just a decision on the issue raised, but all that the parties consent to discuss. So a broader spectrum is available in mediation for exploring probabilities and accepting possibilities. A climate for mutual trust has to be established for effective mediation and the mediator has therefore to understand the psychodynamics of the conflict. In this regard while consent and trust of the parties, empowers mediation, we have to note that they are also it’s weakness.
POUND CONFERENCE:Mediation in the present form gained credence from the Pound conference 1976. Federal rules of Civil Practice, USA envisaged pre-trial conference to explore the potential for better case management and so the Judges had a large role to play at this stage/ or in the settlement. Prof Frank E.Sanders, one of the participants in the Roscoe E.Pound conference to explore causes of popular dissatisfaction with the administration of justice, suggested the multi door courthouse facility which is the basis for the present day ADR. In India, Mediation is slowly gaining credence due to the concerted efforts of the Mediation and Concilliation Project Committee and the fact that any settlement reached is tested at the anvil of justice before it is made a decree. The Justice Dispensation system today, thanks to the amendment of Sec. 89 C.P.C. and the decision of the Apex Court, in the now popularly known as AFCON’s case, has made the multi door courthouse a reality.
The Mediation project in courts is now aimed to expand access to justice, prevent conflicts from escalating into violence or vengeance litigation. So the why, what and when of referral to mediation has become important for the path that the dispute would take in mediation. Further, even though, we have only court-annexed mediation, but in time the practice and acceptance of private and court referred/assigned mediation and online mediation are in the offing. Alignment of mediation with the judicial process is therefore essential.
Primarily a Judge has to therefore be knowledgeable about the different forms of ADR, and in particular be able to remove the apprehensions of parties when the dispute is referred for resolution by mediation. The Judge should not be apprehensive that a referral would mean, decrying the present judicial system or shirk their responsibility in the system of justice by denying the disputants a decision on facts. A referral should not be understood as belying the value of the court systems in place.
The initiative and review power of a Judge is the main feature in mediation. The control of the Judge while initiating mediation and when it comes back, either as settled or not settled, for further action, will be equally important. Unless the referral Judge points out the possibilities of settlement and areas for discussion, while taking time to figuratively hold the hand of the disputants, the parties may think that they have been shunted out of the regular stream of justice. Unless parties realise at the intake of mediation, that it is part of the judicial system and an opportunity to understand who is responsible for the conflict, the progression of mediation will be stunted.
Further, Case Management also means referral to mediation. Starting and administering a mediation programme in court involves a lot of supervision and initiative. The encouragement by the court to adopt Mediation as a dispute resolution process and the sanctity given by the Court to the agreement are the factors that influence settlement. The effectiveness of the mediation is based on how the court starts, administers and runs the mediation programme. The Referral Judge has to therefore be totally involved and catch the moment for stressing on the need to settle. In fact, when mediations fail, and the parties go back to court, a query of the Presiding Officer or concern expressed with regard to an issue, works as a catalyst and parties come to a consensus at that stage. Even then, if necessary, the referral Judge can send the parties back for another round of mediation or record the settlement that they arrive at if it is mutually satisfactory. This could be even understood as Judicial Settlement.
Maryland, USA, after extensive study has reported, that to effectively settle cases by ADR we have to include:
Starting or Expanding an ADR Program – including, but not limited to, case screening and referrals, hiring/recruiting new mediators, case management, creating a quality assurance program, program evaluation, and public awareness projects for ADR programs.
Mediator/ADR Practitioner Quality – including, but not limited to, trainings, workshops, conferences, and assessments.
Public Conflict Resolution Education
– including, but not limited to, conflict resolution skills trainings and conflict prevention workshops for members of the public.
Conflict Resolution Services
– including, but not limited to, providing and/ or using mediation, community conferencing, large group facilitation, etc. to esolve disputes or complex, problematic issues.
- structured academic research on topics related to dispute resolution.
Once started, mediation will not always have a smooth run. In jurisdictions where mediation was started and practiced, it has came to near termination, and a study then gave us pointers to sustain mediation.The study in New Jersey USA is a case in point. The conclusion was that: 1. Referral to mediation by the court and asking parties to appear can be at anytime after filing of the petition. 2. Mediators have to be assigned from the roster maintained by the Mediation Office of the concerned court
3. Parties are given an option to choose a different mediator within 14 days of referral order if they so desire.
4. One hour is to be spent in preparation and initiating parties to mediation without fee.
5. Thereafter parties have to bear costs equally and costs will be fixed by mediator and the court-[ this may happen to us in due course].
6. Provisions to ensure confidentiality and inadmissibility of mediation communications.
7. Training and continuing education requirements for mediatorsWe could benefit from these suggestions.
(This is an excerpt from the entire article, attached as a pdf below.)