Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>Decision Making and Taking Decision in Mediation</xTITLE>

Decision Making and Taking Decision in Mediation

by Sarathi Susheela
December 2020 Sarathi Susheela

“Certainty is a cruel mindset. It hardens our mindset against possibility.”

~ Ellen J. Langer

Decision making is a process. Taking a decision is an act. In mediation, parties’ right of self-determination is to be respected. By no stretch of imagination there can be any compromise on the principle of ‘right of self-determination of the parties’. Mediation being an assisted negotiation process, a mediator assists the parties during the negotiation. Decision making is part of the negotiation process. Taking a decision is the end-result of each stage of the decision-making process in a negotiation. Both are the two different stages of negotiation. To the question, “Whether the mediator assists the parties in both the stages?” the answer is a clear “No”.

A mediator assists the parties in the process of decision making without compromising on the ethical principles. During this decision-making process, the parties are assisted in such a way that they are not only prepared to take decision either way, but also to take ownership for the consequences of the decisions taken by them. However, the part of ‘taking a decision’ is left completely to the domain of the disputing parties. 

The different steps involved in a decision-making process are: -

STEP 1 –> SETTING THE ATMOSPHERE: PREPARATORY STAGE

  1. i) Understanding the Need to Take a Decision: -

Dr. Ellen J. Langer, the professor of psychology said “Certainty is a cruel mindset. It hardens our mindset against possibility”. The disputing parties may not be prepared to look at all the possibilities. As part of decision-making process, a mediator assists the disputing parties to honestly understand whether there is a need to take decision, irrespective of whether they would take decision or not. In the absence of this understanding, involving the parties in the decision-making process may be a futile exercise. A situation may arise where one of the parties may have a pressing need to take a decision, but the other party may not face such pressures. Unless both the parties feel the ‘need’ to take a decision, the negotiation may not be complete. In all situations, the parties may not express this underlying need to the mediator by words. The mediator must understand this need, if any, from the overall circumstances and by looking at the larger picture with a deeper insight.

After spending some quality time with the disputing parties, the mediator brings them safely to a stage where emotions that have been resolved, do not pop up again and affect the decision-making process. Preparing the parties to enter into the decision-making process may involve addressing many emotional issues. In this stage of preparation, the mediator sees to it that all the emotions that are blocking the parties, or that may potentially block them in the future, from participating in the process are holistically addressed. 

This part of the decision-making process is a strengthening process where, the strength and depth of the passage of roots of the decision tree are properly assessed by the mediator. By the end of this first step, parties take a decision, either to participate wholeheartedly in the mediation process or not to. They take a decision to consider possibility in the place of certainty. 

STEP 2 -> IDENTIFYING THE PROBLEM

  1. Mediator assists the disputing party/s to identify that or those problem/s for which the disputing parties are expecting the solution/s through mediation.
  2. Mediator assists the disputing parties to find out whether the problem/s is/are identical to both the parties?

By the end of these two initial steps of decision-making process, parties take a decision in identifying what their problem/s is/are, and whether the problems are identical or different. 

STEP 3 -> PROBABLE OPTIONS

  1. i) Generating Options: The mediator assists the parties in generating several options to move towards resolution of the dispute. 
  2. ii) Listing: The mediator assists the parties to make a list of all probable options.

iii) Prioritizing: The mediator assists the parties in prioritizing the generated options with the help of a VED Analysis. (Vital, Essential and Desirable options). 

  1. iv) Confirming: The mediator assists the parties in listing the options to be exchanged between the parties 
  2. v) Exchanging: The mediator sets an atmosphere to exchange the offers between the parties.

The mediator assists the parties to see to it that by the end of each of these stages, the disputing parties take decision on their own. 

STEP 4 –> EVALUATION OF OPTIONS

  • Bracketing: Assisting each of the parties to analyze and consider which of the options proposed by the other side is (a) Agreeable, (b) Not at all agreeable and, (c) Can be considered only if nothing works out. 
  • Probable consequences of effect of decisions: The mediator assists the parties to analyze the probable consequences of agreeing or rejecting each of the offers given by the other side on the basis of immediate and later effects of the decision to be taken by them.

Assured gain which may be immediate, long term gain, probable gain in the near future or at later stage, assured loss which may be immediate or later, probable loss which may be in the immediate future or later, are all analyzed by the parties thread bare.

When the disputing parties are not on the same page, they are encouraged to see whether they can consider the options parked as ‘considered if nothing works out’. If both the parties agree, mediator assists them to once again go through the stage of ‘Evaluation of options’ through bracketing and analyzing consequences of effect of decisions. 

  • Rating: Mediator assists the parties to rate the options generated by both sides from a neutral perspective as (i) Good and Bad and Ok 

STEP 5 -> FINALIZING 

  • The mediator draws the attention of the parties to the consequences associated with each of their choices.
  • The mediator helps them understand what they are getting
  • The mediator helps them understand what they may be losing.
  • The mediator requests them to take a decision as to ‘whether it is worth accepting the offer/s on the mediation table?’
  • The decision given by each of the parties is communicated to the other side.
  • The common decision is respected. 

Thus the Mediator assists the parties in such a way that “Every step of decision making ends with taking decision.”

Advantages: When parties are made to pass through every aspect associated with resolution of dispute in a professional manner , they get involved in the process of decision making. Automatically they start looking at the problem than at people. Separation of people from the problem takes place unknowingly. 

Parties try to move from decisions taken by them on the basis of their intuition to decisions taken by them based on reasoning. Their faith in the latter gets confirmed due to the professional assistance provided by the neutral mediator. 

“Intuition has its place in decision making…but any one who thinks that intuition is a substitute for reason is indulging in a risky delusion.”

 Eric Bonabeau

 

Biography


S.Susheela is a designated Senior Counsel practicing in the High Court of Karnataka at Bangalore. She has done her Masters in Sociology, a Post Graduate Diploma in Industrial Relations and Personal Management and Post Graduate Diploma in Alternate Dispute Resolution from ICADR. She has been practicing for the last 33 years. Susheela is a trained Mediator, and a Master Trainer from Bangalore Mediation Centre. She has trained many lawyers, judges and professionals in mediation. She has authored two books on Mediation in English- Mediation a Reader’s Handbook and Change through Mediation and another in Kannada. She is a renowned columnist in leading Kannada dailies. Susheela’s weekly blog https://totim.law.blog gives tips to trainers giving training in mediation.



Email Author
Additional articles by Sarathi Susheela