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<xTITLE>Advocacy in Mediation</xTITLE>

Advocacy in Mediation

by Uma Ramanathan
May 2015 Uma Ramanathan

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:

  1. Samsya or Doubt: when one has two or more alternatives without any certainty, this leads to dithering without being able to come to a definite conclusion.  eg., “I am good at maths and physics and so maybe engineering will be the best choice but I think that physics may give me a chance to do research-----  .”.
  2. Proyajana or aim- without understanding the complete implications, projecting an idea which motivates the action-eg. emotionally reacting and asking for dissolution of partnership of the family business, when really it is  a feeling of being neglected/slighted.
  3. Drstanta or example- establishing an argument by using an example eg., Anil  gets drunk when his wife is not with him. As Anil is drunk, his wife must have left him. 
  4. Siddantha or doctrine- what is accepted as the undisputed truth either by experience, logic or undisputed reasoning, without any doubt, eg.  religious sanctions, “ being a catholic, I cannot agree for a divorce as our religion does not permit divorce “.
  5. Avyaya or constituents of inference- statements, reasons, example, universal proposition and conclusion, eg. winters are cold and so December must be cold in Chennai.
  6. Tarka or hypothetical argument- questioning and cross-questioning and offering hypothetical ideas and stifling confusion and misunderstanding by a deduction based on fallacy, eg. power corrupts, knowledge is power and so knowledge corrupts [Informal Logic]- Irving M. Copi, Keith, Burgess-Jackson
  7. Nirnaya or conclusion-  legitimate and recognised knowledge-eg. document of title establishes that Sunil has purchased the property in 1994 and so he is the owner.
  8. Badha or discussion- each explaining their position and reaching a solution by reasoning and logic, eg. either you take this amount offered or  invest 10% of the capital or join the business as a partner and take 20% profits.
  9. Jalpa or Wrangling- Each side with a prejudiced view tries to win without an attempt to get to the truth, eg, “I do not want to study engineering because I hate maths”, Ökay, then join the family business, as you have to take some responsibility in life”, No, I want to learn designing as I am creative and money does not matter”.
  10. Vitanda or Irrational reasoning- destructive criticism of the view of the opponent and arguing without establishing his own view  eg- “why should I give the balance sheet, he has been doing the correspondence and knows about the profits and in any event, he can get it from the auditor. He can settle without going through the balance sheets, but is purposely asking for it, to deny my claim.”
  11.  Hetvabhasa or specious reasoning-irrational argument without any basis eg.  -“With today’s cost of living, I cannot accept anything less than Rs. 1 lakh per month. He must transfer the house and continue to pay the EMI as he is the one who has committed wrong and when I am right, why should I suffer”.
  12. Chala or unfair reply- statement meant to cheat someone, which is cause for misrepresentation/ misunderstanding –eg- “I have given a police complaint against his sister and if he does not agree, I am going to press for action on that complaint.”[there is no such complaint in fact]
  13. Jati or generality based on a false analogy- mis-directed conclusion without any reason- eg “he has no mind of his own and is controlled by his parents. If I take him away out of this country, he will be under my control and we will have a good life. I have 20 people working under my supervision and so it is easy for me to handle my husband once he is out of his parents clutches.”
  14. Nigrahasthana or grounds for defeat- when one admits defeat when he cannot put up a different argument-eg- “I have tried explaining to everyone, how I have suffered, but even my children do not want to support me. I have no work and so I will go back and suffer as I have no other way out”.

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: 1

 

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:

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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.
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Mediator advocacy in a nutshell is :

    1. Evaluation and selection of a strategy
    2. Reaching out to the other side and have background information
    3. Designing a plan for parties to connect and forge a climate for a dialogue
    4. Building trust and rapport
    5. Setting the agenda by defining issues
    6. Generating and assessing options
    7. Formalizing a mutual agreement
    8. Ensuring workability  of the agreement
    9. Acknowledging the effort of disputants
    10. Respecting their need to keep every facet of the mediation confidential.

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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