Introduction to Mediation
Excerpts from the talk delivered by K S Sarma
during the course of the workshop held online on 22 May 2021
Mediation is an ADR, that is,
Alternative Dispute Resolution. It is called ‘Alternative’, because Litigation
has been the main dispute resolution system. You will agree with me that
generally an alternative to an existing system arises, when something better
than what is existing is found.
The purpose of litigation is
resolution of disputes within a reasonable period of time and in a just and
fair manner. Is litigation achieving this objective? Are the parties happy with
the judgements given out to them by the Courts of Law?
A survey conducted in our country
reveals that 95% of the winners of the court cases are unhappy! Mind you, I am
not talking about the losers, I am talking about the winners of cases, 95% of
whom are unhappy! What could be the reason?
According to the National Court
Management System of the Supreme Court of India, it now takes 15 years of
litigation on an average for a commercial or civil dispute to get resolved. Fifteen
years is indeed too long a period particularly in today’s fast changing world. This
waiting period of 15 years to get justice is likely to increase further in the
years to come because of the high pendency of cases in the courts, which is not
coming down, but increasing every day.
Anil Xavier, the President of the
Indian Institute of Arbitration and Mediation draws a humorous analogy between
this and a five-year-old boy asking his father to buy him a tricycle. The
father is a perfectionist! He wants to buy his son the best and the most
beautiful tricycle of the world and starts searching for such a tricycle. In
the process, days, weeks, months and years pass by and the boy ultimately forgets
the tricycle.
One day, after he has grown into a
twenty-year old young man, his father brings home a grand tricycle and tells the
young man, “My son, you wanted me to buy you a tricycle 15 years ago when you
were 5 years old. I started searching that day itself for the best tricycle of
the world. I got it only today. It is a very special tricycle. None else in
India has it. It will be your proud possession.”
The young man is amused. Though he is
able to see in it the innocent love of his father and his commitment to give
his son a precious and unique gift, the son cannot ride the tricycle today.
What the handsome young man wants to ride today is the latest high end version
of Harley Davidson motorcycle! Something which had value 15 years ago , that
is, when he was 5 years old, has no value for him today.
This is the reason why 95% of the
litigants who won the cases are unhappy. We know that 100% of the losers are
unhappy. It is indeed shocking that the winners too are unhappy. It is said
that justice delayed is justice denied. Litigation today is a classic example
of a Lose-Lose Situation, because all the parties are losers. They lost time,
money and efforts, besides destroying the relationship; and after paying such a
heavy price, they did not get a verdict which could satisfy them. So, is it
wise to go to a court of law for settlement of a civil or commercial dispute?
Cases have piled up to an alarming
level in all the courts of law – from the lowest subordinate court to the
district court to the high court to the Supreme Court. It is estimated that at
the present speed of disposal of cases, it will take another 326 years to clear
off all the cases pending in all the courts of India from the lowest court to
the apex court, and that too, assuming that no new case is filed in any court
of India from tomorrow onwards!
Litigants lose time and money for
years fighting in the courts. They lose also mental peace, affecting their
personal and family life besides their career, profession or business. In other
words, people destroy their lives by fighting out in the courts of law.
Of course, the biggest loss to the
litigants is the relationship with the other party, who may be a customer or a
business associate or any stakeholder or a close relative or a neighbour, which
gets severely damaged.
Therefore, we need an alternative
model for resolution of disputes – a model which is speedy and economical and
which preserves and improves relationships. This necessity led to the birth of
ADR, that is, Alternative Dispute Resolution.
Today, we prefer alternative sources
of energy like solar power or wind energy to the conventional source like
thermal power from the point of view of preserving the environment and for sustainability.
In the same manner, ADR, that is, Alternative Dispute Resolution has now gained
acceptance, as it saves time, money and relationships.
Mediation is one such Alternative Dispute
Resolution process. Resolution through Mediation is fast. It can be as short as
one session and maximum of a few sessions, taking a month or two. Very rarely,
does it take more than 3 months. The success rate of getting the dispute
resolved through Mediation has been about 80%. The financial cost of mediation
is much lesser than that of litigation.
The biggest reward one gets out of
mediation is saving the relationship. Disputants become collaborators and enemies
turn into friends. In many cases, the disputants got more than what they hoped
to get, because mediation enables the parties to convert the dispute into a
mutual problem which carries with it the seed of a greater opportunity and makes
them to find an innovative solution to the problem, benefiting both the parties.
Mediation is a process, in which a
neutral person called the Mediator, facilitates negotiations between the
parties to a dispute, with a view to resolving it amicably. In other words,
Mediation is Assisted Negotiation or Facilitated Negotiation.
What then is Negotiation? Negotiation
is defined as communication for agreement. Therefore, as a corollary, Mediation
is assisted or facilitated communication for agreement.
Mediator is the facilitator of such a
communication between the parties, which enables them to reach willingly and
voluntarily, a mutually beneficial agreement. Mediation encourages the parties
to see the dispute as a mutual problem to be solved by them jointly, having
regard to each party’s interests, needs and concerns.
It is a process which empowers the
parties to come to a solution to the problem on their own, instead of relying
on a court of law or a neutral party, say an arbitrator to decide on the
dispute.
William Ury, a
leading negotiator and mediator, narrates a simple incident that took place in
a Harvard Library to drive home this point. Two students were quarrelling in
the library. One wanted the window to be open and the other wanted it to be closed.
The first went and opened the window. The second immediately got up, rushed to
the window and closed it, which led to a big argument and naturally bothered
everyone in the library. Finally, the librarian came over and asked the first
student, “Why do you want the window open?” “Because I want some fresh air.”
She asked the second student: “Why do you want the window closed?” “Because the
draft is blowing my papers around.” She then asked them: “How do we get you
some fresh air without giving you a draft?” They thought about it for a
bit and then one of the students said: “I have an idea.” And he went into the
next room and opened a window there, thus providing fresh air for one without a
draft for the other.
In this library
episode, we saw that not only both the students got what they wanted, but their
fight also was stopped and the relationship was restored. Window should be open
is the position that one student took. The position of the other student was
that it should be closed. The interest of the former was fresh air and that of
the latter was no draft, that is, papers should not fly.
Position is what people say that they
want. Interest is why they want what they want. In this case, the librarian who
played the role of a mediator, asked the first student why he wanted the window
to be open and asked the second student why he wanted the window to be closed.
If we know our
interest and the interest of the party with whom we are negotiating, and look
for a creative solution that takes care of the interests of both of us, we will
arrive at a win-win situation.
The library
episode takes us to the first 3 key concepts of Principled Negotiation, namely
1. Separate people from the problem
2. Focus on interests, NOT on positions
3.
Invent
options for mutual gains
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