Mediation is an invaluable tool for resolving disputes, but it comes with its unique set of challenges, especially with respect to evaluating and maintaining the confidence of the parties involved. In itself depending on the number of parties involved in a matter this can be quite complex a process on a group level, on an individual level it is even harder in that individuals bring their own unique emotional issues to the table. Having had numerous years of extensive experience practising law in India and now pursuing a graduate program in ADR (Alternative Dispute Resolution) in Canada, I am cognizant and have an appreciation of the complexities and nuances involved in the mediation process, particularly in cross-cultural settings.
Parties to a dispute may carry emotional baggage from past incidents, leaving them dejected, depressed, or frustrated. In such cases, mere dialogue or reasoning may be insufficient to satisfy their concerns and build trust. The mediator is charged with the task of creating a safe space for the parties to express themselves fully. A space that will allow them to vent their emotions without fear, to ask questions without concern about repercussions, and to argue and discuss without unnecessary intervention. Only when the troubled emotions have been poured out can the mediator begin the process of building trust and confidence in the mediation process. This fact is alluded to by ‘William Ury’ And ‘Roger Fisher’ in their Seminole work.
The initial stages of mediation are crucial for establishing a relationship between the mediator and re-establishing the trust between the parties to ensure functionality right. Oftentimes this requires a significant amount of listening actively to the parties as they recount past incidents, this allows them to feel heard and acknowledged thus enhancing their willingness to participate in the process, it further enhances the trust and helps them open up further about their desires, wants, and underlying interests and needs. Through patient listening, the mediator gains insight into the parties’ perspectives and emotions, forming the basis for a template that can be utilized to guide them towards resolution.
It is a known psychological fact that parties in dispute often mentally re-live past experiences while explaining their grievances in fact this is one of the fundamental tenets of traumatic incident reduction (TIR). To expedite and enhance the possibility of resolution, they may utilize brainstorming in which imaginary solutions are proposed. These again evaluated as the parties, seek a quick solution that could yield immediate results. There must be recognition that the mediator’s role is not to impose their ideas or opinions and to refrain from selling solutions or convincing parties to agree or disagree on any issue. Instead, the mediator assists the parties in determining the viability of their proposed solutions, ensuring that they are ripe enough and worth pursuing.
In the process of mediation, parties must understand that actions are often condition-based, meaning that their acceptability can change with altering circumstances. The motive behind an action also influences how it is perceived by the other party. As the mediator explores the parties’ wants and needs, they may find that the intensity of desire to fulfil certain wants decreases when faced with a multitude of demands. Through thoughtful questioning, the mediator helps parties assess and prioritize their requirements for more focused results.
A unique challenge for the mediator arises when parties are so influenced by their representatives or their support persons that they remain inactive during mediation, which must be distinguished from genuine inaction. Understanding this difference and nudging parties from a projected non-action zone to a demonstrated positive action zone is crucial and requires very specialized skills and training of the mediator. By bringing both parties closer together, the mediator reduces the distance between their positions and encourages constructive engagement.
Parties to a dispute can only use allies where individual standards for judging actions as right or wrong and that of course is the rub. According to Alfred Adler, every human being operates with their own apperceptive schema which is a unique way of thinking based on their value systems, beliefs and culture. The mediator must comprehend these unique individual standards and help parties understand that an action may have been deemed right or wrong solely due to external factors like place, time, situation, and opportunities. In other words, in law, the adage is what you see depends on where you stand and this is the challenge that the mediator has in getting the parties to recognize in order to move their positionality. This results in a shifting of their mindsets towards meaningful expectations Which facilitates the acceptance of alternative solutions, leading to mutually agreeable outcomes.
In many disputes, the reason for conflict lies in actions and reactions taken by each party. Differentiating between the two and understanding that reactions can act collectively, not in isolation, and after is essential for finding common ground. The mediator facilitates introspection, helping the responsible party understand the consequences of their actions and whether they wish to rectify the situation. Similarly, the reacting party is encouraged to reflect on whether their response was proportionate and if they are ready to work towards Resolution.
Misunderstandings often arise when one party interprets the other’s actions based on their own apprehensions. The mediator must help parties see actions and reactions in the proper context, enabling them to understand each other’s perspectives and motivations. By providing a platform for open communication, the mediator helps parties clarify intentions and motives, leading to a more accurate interpretation of the events.
Every challenge faced in mediation might appear insurmountable, but not all are impasses in fact this is one of the fundamental premises of transformative mediation in which the parties are required to recognize the barrier, appreciate it and then work together towards overcoming it, usually with the help of an impartial third party. The mediator’s skill lies in identifying the opportunities hidden within challenges and guiding parties towards resolution. By embracing these challenges and focusing on building bridges, the mediator becomes the driving force behind a successful resolution.
Mediation is an intricate process much like a dance that demands sensitivity, patience, skill and knowledge of the steps from the mediator. By genuinely listening to parties, building trust, and understanding their perspectives, the mediator paves the way for a successful resolution. Facilitating mindset shifts, encouraging positive actions, and fostering meaningful expectations help parties navigate the mediation process effectively. Moreover, the mediator’s ability to unravel actions and reactions, understand individual standards and identify opportunities for resolution allows for mutually acceptable outcomes. In the face of challenges, the mediator must remain poised and prepared, armed with the knowledge that each obstacle can lead to a new path of resolution. With dedication and commitment, the mediator plays a vital role in Empowering parties to Co-create a mutually agreeable and lasting resolution.
I would like to express my heartfelt gratitude to Professor Bruce Ally for their invaluable guidance, insightful feedback, and unwavering support throughout the process of writing this article. Their expertise and encouragement have been instrumental in shaping the ideas presented here. I am truly thankful for their mentorship and dedication to fostering my academic growth.