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<xTITLE>Innovative Ways to Use Mediation (other than Dispute Resolution)</xTITLE>

Innovative Ways to Use Mediation (other than Dispute Resolution)

by Jharna Jagtiani, Aanchal Gupta
February 2021

The mediation process is inherently flexible. Traditionally, it is used as a dispute resolution tool where parties can come together, call a timeout and reach a mutually acceptable solution. But in the time of a pandemic or even otherwise, there are several uses of the mediation process. Different situations and circumstances can bring out several issues that one might face especially when working in a group or dealing with other people in general. Principles or even the process of mediation can help figure out a plan or a strategy for the developments and help tackle any issue faced by the parties. 

Here are some instances where mediation can be used other than resolving disputes - 

  1. Structural Changes or Changes In Organization – Mediators have often been engaged to conduct sessions when a business organization is looking to make changes. In the times of a pandemic, almost all the business organizations have suffered and need to adapt to the structural changes. They have suffered in most areas of their working, if not only in profitability and/or financial terms. New goals to dissolve, or split up, or reorganize the organization can be mediated. Issues with every individual’s situation can crop up in several matters due to the changes that need to be made as a result of the pandemic. Structural changes in the business organizations are fundamental changes. The pandemic has rendered these kinds of transitions/adjustments important, mediation can help the members to adjust to them in a better way so as to reduce any kind of friction and avoid conflict.
     
  2. Reality Check – Prevention is better than cure. Before a thought, opinion or disagreement can turn into an actual conflict, it is advisable to take regular mediation sessions like once every 3 months to gauge the possible conflict points in the workplace and put out the fire. Mediation is a safe space which can be used to address and discuss concerns without blaming any party. Mediation helps parties to gauge their situation and concerns that they may have with each other. It can be used as a way to avoid any dispute and get ahead of the situation. If there are any concerns or any problems, it can be addressed and solved. The aim of the mediation in this situation is to address the needs of the parties. The pandemic has created unusual circumstances for everybody. Mediation can be used by employees to address concerns with their employer, colleagues to address issues, partners to bring up any concerns, etc. The communication can be facilitated by the mediator to ensure that there are no kinks in the smooth transformation of the work process. These tough times have enabled.
     
  3. Estate Planning – People often spend a lot of money in engaging advisors for estate planning. Family relations are strained; blame game is witnessed by counsellors, litigation is stretched out for years, hatred is passed over generations and years later it ends but the question remains, was it all worth it? An issue common to all these cases is miscommunication or lack of communication all together. Mediation helps in solving this issue. With the involvement of multiple advisors and even attorneys, family members do not have a chance of talking about their positions and interests. The topics in such discussions are also strained because of the sensitivity of the issues involved i.e. death and money. Mediators can be cognizant to the emotions more than lawyers as they stand in a neutral position and they are not working for the interests of one of the parties. They can assist the beneficiaries and allow all the interests and positions to be laid out on the table. This can lead to mutual agreement and overall satisfaction without the matter being dragged on for years. The collaborative nature of the process ensures that there is no harm done to any stakeholder’s interests while preserving their relationship. The mediation process can ensure that the agreement concluded at the end of the proceeding is acceptable by all the concerned parties and this reduces the risk of malpractice claims against advisors and lawyers.
     
  4. Co-parenting – When parents are involved in a divorce, custody battles are common in these cases. This makes the relationship of the child and the parent bitter and often ends it completely. It is like a child divorcing one of the parents. However, to ensure that the child has both of the parents by his side more and more (ex) couples are now opting for co-parenting. To avoid conflicts and custody battles, parents opt for mediation. Mediation helps the parents divide the responsibilities, plan the finances, take care of the good environment needed for child rearing, etc. Co-parenting is a life-long relationship. The broken relationship of the parents also affects the child’s belief system. The child can lose faith in relationships, establish trust issues, and lose sense of family and companionship, when the child witnesses quarrelling parents. Co-parenting with the help of mediator can help establish a working relationship between the parents so as to ensure that the child’s mental health is not hampered due to their conflict. Planning and discussing the details of the life of the child will ensure that the child has the love of both the parents and none of them have to abandon the child because they could not work it out with the other parent. Even though there is no conflict about the children yet, mediation helps to avoid future conflicts in a divorce. It prevents the conflict of the parents to be projected on the children. The end goal of every parent is a good upbringing for their child and this can be achieved with the help of mediation.
     
  5. Customer Loyalty – An effective grievance redressal mechanism that has a speedy process can help build consumer loyalty. If the customer has any issues and the same is handled on the spot or with 24 to 48 hours, it gives the customer the sense of importance. It indicates that the organization cares about the customer and their needs and issues. Even though mediation is used when there is some kind of concerns, this process consequently helps in building loyalty. The customer knows that their issue will be taken into consideration, resolved and they would be compensated for the inconvenience caused as per the situation. Mediation gave them a sense of importance, increased their satisfaction from the service and ensured that they do not choose the many alternatives available in the market.
     
  6. Changes in modus operandi – If there are changes in the mode of working of any organization, it will inevitably lead to some issues. The new mode would require some learning, on-boarding, training, etc. This kind of transitions lead to issues and conflicts as dealing with every personnel and the new mode of working has different effects. With the working mode changing to online systems and work from home scenarios, there are several changes that a business organization needs to make. So even though there is no pre-existing dispute, a mediator can be engaged to mitigate these activities and discussions.  Every person will face an issue with changes around them; mediation can help mitigate these problems and prevents them from transforming into a conflict against the management. Mediators act as neutrals who convey the issues of the system from the side of the employee and the need of the new system from the side of the management of the company. These interest positions are aligned and solutions to help them are devised. More often than not different divisions in a company work together, prior to the pandemic they were set in a decided pattern but the pandemic necessitated to alter such patterns. Teams need to adapt to the new world and make new patterns to co-ordinate; employers can use mediators to bring together the teams.
     
  7. Wellbeing of the employee - In the pandemic, a working man has been affected the most. They are crunched with problems from work and their households. To ensure that the workflow is maintained and the well being of the employee is kept in mind, employers engage mediators to help the employees and themselves. The employee is as important to the company as the company is to the employee. One cannot function without the other. Any issue that the employee is facing would directly affect the work that they are doing in the organization. Hence, the problems of the employee are the problems of the business organization.
     
  8. Strategize – Mediators have often been brought in by companies to act as liaison between the management and the employees. Strategy moving forward is a matter of concern. When the management needs to introduced new changes in the working set up and/or when they need to set in a different strategy that has an effect on their employees; mediators have been brought in to facilitate such a conversation. The underlying interests and the positions of both the sides are brought to the table and a mutually agreeable step is taken. The business can only function if the employee works in consonance with the strategy and a strategy can only bear fruit if the right amount of work and dedication is put toward it.
     
  9. Brainstorming Space - More often than not different divisions in a company work together on a single project. A space of brainstorming ideas, exploring possibilities and arriving at decisions is easy when mediation is involved. It is beneficial especially where there are several people working together as a team or various teams/groups working together. Mediation can bring out a safe space for different stakeholders and enable quality discussions. Emotions often run high as individuals are passionate about their work and their projects; mediation can help accommodate them without such discussions leading to conflict. It can help create a space where people can agree to disagree and mutually acceptable conclusions can be found which ensures that several individuals can work together.
     
  10. M&A Transactions – When a merger or acquisition transactions takes place, there are several details that need to be finalized. There are several moving parts in the organizations that are merged or acquired and the finer details need to be hashed out so that a smooth transition can take place without a huge cost. The deal is carved out so the parties involved can achieve their goals; they would have certain expectations from the deal and would expect those to be met. However, in the finer details there can be several disagreements, to ensure that these do not escalate to a dispute and hamper the transition and/or the deal, mediation can be used. The parties involved can come to the table to finalize the gazillion details involved in the deal and ensure as smooth a transition as it can be. Concerns of shareholders, creditors and other stakeholders can also be addressed through mediation.

Mediation is a voluntary, non-binding, informal process that helps the concerned parties to come to a table and talk about their concerns or conduct any negotiations that they need to. As effective as mediation is in resolving the disputes by deliberating upon the interests and positions of the parties, but it can also prove to be an effective tool when introducing new changes, strategizing, planning, etc. If we need to align interests of different people who are working together or need to collaborate, then mediation can help them find a common ground from the very start instead of waiting for a conflict and then resolving it. Mediation can also be a fast and economic way to ensure that costly conflicts and/or litigation don’t take place. The conflict does not only cost in terms of resolution but also causes lose in terms of the work and emotional costs are another concern. Mediation process will be able to help create a safe and friendly environment thereby reducing the mental stress that a person might go through in case of a conflict. 

Biography



Ms. Jharna Jagtiani is a qualified lawyer and a certified Mediator by the Indian Institute of Corporate Affairs under the aegis of the Ministry of Corporate Affairs – Government of India. As an independent ADR practitioner, her work involves assisting start-ups, small and medium-sized enterprises to set up their internal management and consumer dispute resolution system.


Ms. Aanchal Gupta is a 4th-year law student at Hidayatullah National Law University, Raipur.