Need for Enhancement of Standards in Mediation Practice

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Presented at the 3rd National Conference on Mediation, New Delhi, 8th July 2012.

I cherish this privilege conferred on me by the Hon’ble Judges, MCPC, to share my views and concerns about the need to mould the path of mediation practice.

Michael L.Moffit statement “Mediators today operate with few market restrictions, few control on their conduct and few consequences for misbehaviour. This will not persist”,  applies to our present state of mediation. Competency of mediators, unauthorised practice of counselling and the way mediation is practiced are issues which deserve serious consideration.

Mediation has had an unbridled growth and it is time to take stock and change gears to understand the needs of mediation and it’s proper practice. There is a need for change in the facet of practice of mediation. We have to imbibe  the words of Albert Einstein” to solve our most difficult problems, we have to radically change our thinking. We are at a transition point and to be involved it is essential that our mental reflexes move from preconceived notions and stereotyping. To maximise benefits we have to use the skills necessary to elevate parties from habitual thinking and biased perceptions.

For mediation to be a tool of personal empowerment to disputants, acceptance and effective use of mediation will depend on an understanding of the needs of mediation. The Theory of Needs formulated by the renowned psychologist Abraham Maslow states that  self actualization occurs only when Biological & Physical, Safety, Esteem, Cognitive, Aesthetic needs are satisfied. So a concerted and progressive effort is necessary for any actualization.

In this context, to address the needs of mediation, we have to understand the psychodynamics of dispute resolution which involves factors such as fear, power, threats, scarcity, influence & social issues, impressions and validation, interests of others, stereotyping and misconceptions, reactive devaluation, likes and dislikes and so on. The trajectory of Mediation based on the theory of needs would then be comfort, esteem, cognition and realization. Therefore, effective mediation practice ought to ensure substantive and procedural satisfaction. Maslow’s pyramid of needs can be recast with respect to mediation as pictured in this article.

To manage and help disputants to navigate through this trajectory  it is essential to bring out awareness and validation of the process. The public at large has a notion about mediation which is largely based on the  programmes in the media which are alleged to be mediation. The programmes on television allegedly settling disputes is really more of head bashing, coercion and threats. Generally people expect advise and we as lawyers are also prone to advise and force decisions. Unless this is avoided in mediation, the disputants will not find comfort in the process and the workability of the agreement will be questionable. The disputants can renege on their agreement and commitment will disappear even before the ink dries.

To ensure effective participation and willingness to be in mediation, education of the public about the process through fliers, media presentations and making mediation part of the curriculum in law schools and business related  training programmes is essential.

The Bar is to be  sensitized to the process of mediation. There is open hostility and misuse of the process as it is  more often  used as a means to delay the court process or to harass the opposite party. As Justice R.V.Raveendran put it, we have to remove the “continuing cynicism and hostility of the Bar” first. Unless we get the involvement of the bar, their resistance could affect the disputant’s willingness to participate in the process in good faith or ensure real participation and settlement.

The disputants have to be empowered to understand the effect of self-determination and freedom to make their choice. The public and the Bar need to get more information about mediation to enable them to understand the opportunities they have to settle disputes. Mediators have to understand this aspect and if they fail to give importance to building trust, rapport, assist parties to understand the benefit of mediation, or fail to persuade parties to actualize, the faith in the system will be eroded.

The Mediators have to be detached and be an observer in the game of negotiation and allow parties to think by removing their conditioning. Commitment and involvement of the mediators at an interpersonal level is necessary and providing the right atmosphere for a conducive communication is essential to the conduct of mediation.

The thought process of every individual [including mediators] is influenced by bias and habitual thinking and unless the mediators give importance to self- esteem of the disputants and stress on self-determination, the dialogue could become a monologue and the agreement arrived at will not carry with it the guarantee of workability.  The Mediators have to therefore provide for a non-invasive approach to the resolution of the dispute. The standards in mediation have to be more in the nature of a check on inffective practices.

The Standards prescribed for mediation must ensure that the basic needs of parties, protection of their interests, bridging the gap between relationships and building them, pointing out their responsibility and ability, assisting them to acknowledge and understand,  to balance issues while choosing options, are guaranteed. It is essential to understand the criteria that distinguishes mediation.

Flexibility, voluntariness, confidentiality and above all satisfaction of the emotional quotient in mediation defies codification. We therefore need to have a homogenous and systemic approach to mediation which is inclusive of all these factors and more, for rendering value based service.

Quality control and safeguards to avoid pitfalls demands that Mediation standards  be based on referrals, infrastructure, administration and practice and end user satisfaction. Consolidation of various styles of mediation, adapting the justice dispensation system to various modes, taking note of the delay, costs, and rigidity of the present system and evolving a party centered resolution process which enables warring parties to agree to disagree/find solutions,  can alone guarantee accountability and  protect integrity.

So what is this system and how is it to be defined? Defining Mediation is very challenging because of the different practices that have evolved. Mediation is not mere settlement simpliciter.

In common parlance, a  settlement process is understood as encouraging disputants to agree to a midpoint between their positions and to move them towards a compromise. To ensure satisfaction of the end user, the settlement should include unravelling the real conflict, understanding the needs of disputants and the reasons for their positions, relationship of the parties and connection to the issue in disagreement. Mediation is more than pure negotiation and involves a keen understanding of the psychodynamics of conflict resolution and nudging the disputants towards a resolution by bringing a change in the thought process. 

An event, automatic thought, belief and emotion regarding the same brings about the conflict. Socio-economic and cultural aspects have a hand in the outcome of the dispute resolution and often times a surprise element is thrown up at the most inopportune moment because of the attitude and understanding of the disputants. This is also the energy that charges a mediation and spurs the mediator to encourage parties to collaborate and can on the other hand due to an improper use of the process cause domination, power struggle and roadblocks of various kinds. Mediators have to be conscious of these factors and need to be informed or be able to recognize them.

Issues like Process vs practice, Flexibility vs Regulation, Justice Vs end user satisfaction are all global themes that affect standards of practice and accredition. Commitment, voluntariness, confidentiality and meaningful dialogue are the pillars that support the structure and so the standards have to be stress on implicitly following them. Legal sanctity, competence, and workability have to be necessarily ensured before disputants enter into an agreement.

Sec. 89 C.P.C. is the source of authentication for mediation. The AFCON’s case has given us guidelines. Still we need to evolve a method to regulate the system protecting it’s autonomy and ensuring its singularity and at the same time bringing it in alignment with the Judicial Process absolute justice and quality control. In practice we find that criminal actions are being referred and brought to mediation and the question raised then is the sanction for the resolution and the order thereafter.  This has to be addressed.

The query raised after referral is ‘why mediate’ and ‘who is the mediator’? The general belief  is that “ anyone can mediate” and call themselves  a mediator. Lack of any accreditation and statute concerning mediation, has resulted in unscrupulous people ‘settling disputes’ and ‘issuing orders’ thus creating a parallel system to the established Judicial system. This practice has to be depreciated and addressed seriously to ensure credence to the true state of Mediation. Added to that are diplomas in ADR which have resulted in sprouting of mediators without knowledge based skills. Opening of mediation clinics and offices and advertisements soliciting mediation and mediation training with much fan fare has also given an impression, that it is a court and the ‘mediation’ done there has some force. Standards have to be set therefore for the accredition of mediators, the practice of mediation, for rendering training and for the proper administration of mediation.

Who is a mediator? We have now the 40 hour training of those who have been in the Bar and are willing to be trained. But we have no idea about their ability to be mediators or gauge the skills that they acquire in the 40 hour training.  Assessment at the intake level of mediators is necessary to get committed mediators. The trainees must be evaluated on the basis of their aptitude to be patient, to be encouraging and persuasive and generally be a ‘solid pillar’.

We need to ensure that there is a system which would provide for observation and assessment of  mediations and mediation training and for denying certification when necessary. Many trainees complete the course and get certificates and do not practice mediation in the way it is imparted, either for want of referrals or infrastructure or due to lack of knowledge based skills. This could lead to undermining the credence of this system.

Primarily we have to understand the difference between ‘certificate programmes’ and ‘Certification’. While the former is centered on learning the course and completing it with or without an assessment, the latter involves assessment of knowledge, skills and ability. In the former, a certificate is issued on completion for life, while the latter refers to competencies for a specified time and needs to be renewed and updated. Certification is essential for the proper practice of mediation/ mediation training as otherwise we will be shirking in our responsibility to give quality based service/knowledge based skills.

It is imperative that  we choose the right people to be mediators, ensure their commitment to the process and appropriate use, or else we will be facilitating domination and coercion and that could erode the faith in the system. Mediators ought to check delay, inappropriate use, domination and be conscious about the use of the process for the benefit of the disputants. Ensuring comfort level of disputants will empower the parties to come to a suitable agreement, even if it fails in mediation, they settle later, and so mediators have to have the skill to reach out to enable parties to get more. Only when the mediators fail to assist the parties in seeing the larger picture, there will be an impasse and so the mediator has to update skills and practice them to manoeuvre the glitches faced in mediation.  

Mediators must believe in the process and the rapport and trust that they create will enable parties to look dispassionately at the problem and move from personal altercations with the other party.  The most frequently asked question during training is – whether mediators will get protection when things go out of hand? An understanding of the process, commitment and conducting the process with dignity and control will ensure smooth participation, and requirement of some other safeguard, would negate the process.

To get disputants to view mediation as an opportunity that ought not to be missed, we could think of evaluation at the intake point, reasoning out the  referral and getting information to decide on the appointment of the right mediator.  Once the mediator meets the parties, meticulous following of the process alone will nudge the participants towards a discussion. It is a fact, that some mediators do not give importance to the process and jump into the stage of negotiation and this has given rise to heart burn, both for the disputant and to the Mediation Centres. The allegation of bias or high handedness due to this approach results in intractability and this issue needs to be addressed.

Today mediation can be used to resolve:

certain issues in dispute while leaving some to be handled by the court,

resolve all issues in connected proceedings elsewhere also

resolve issues between the parties that has not yet been raised in court, but parties agree to the same

some issues as part of  arbitration[Med-Arb].

We have to therefore understand the different modules of mediation and strategies used to formulate the standards of practice to address the common complaints about mediation even though we are more familiar and comfortable with the facilitative module. The report of the Department of Labor, New Zealand government [2008] defines the following modules:

Evaluative Mediation- more often in monetary agreements, and involves a realistic view of the negotiating positions and legal aspects of the dispute.

Transformative Mediation – focus is on underlying cause of the dispute and the nature of the relationship and it’s future. Decision making is strategically controlled by the Mediator. It fosters empowerment and recognition and it is more of traditional problem solving.  

Facilitative Mediation,- focus is on problem and identification of interest. There is evaluation in caucus and encounters impasse when  parties stick to their positions.

Narrative Mediation-  based on stories built by disputants about conflicts. Clarification of views converts intractability to understanding and  at times respect.

Insight Mediation- challenges  expectations and assumptions and the moment of clarity on and  understanding  of what one is deeply concerned about and what the other fears about results in a moment of “Ah, I got it”.  Relationship centred rather than problem centred.

Consultative Intervention Mediation- world view of disputants. External intervention to unravel the conflict based on self reflection

Strategic Mediation – addresses the fundamental dysfunction that fuels the conflict- focus  focus is on communication and understanding regardless of  agreement making.

More often we find that, wthout faith in the process or involvement in dispute resolution, Mediation, is considered by Mediators, as another process akin to Lok Adalat/ Commissioner and a means to gain some income. This can cause untold harm to the system and so it is necessary to chalk out standards for competency and keep a check on the attitude of the mediator and the common pitfalls in mediation practice today:

• insufficient work
• under use
• inappropriate use

  incompetence

  domination

  training

  regulation

  style

  tardiness

  commitment

  lack of infrastructure

  administration of the centre

A cohesive approach to mediation has to recognize the different modules of mediation, alignment with the judicial process, stress on core factors such as commitment, competency, certification. Effective mediation is possible only with suitable referrals and orders. It would benefit mediation standards, to include:

ALIGNMENT OF MEDIATION WITH THE JUDICIAL PROCESS:

• Mediation autonomy with respect to funding and function
• Constant and intuitive Mediation Committee
• Questions about matrimonial matters or property disputes, etc., involving criminal actions either at the anticipatory bail stage or under Sec, 482 Cr.P.C. being referred to mediation needs to be addressed and guidelines formed 
• Proper infrastructure- premises and adequate trained staff to hold and administer mediations
• Assistance of experts i.e, psychologists, Chartered accountants and Engineers in specific cases when needed
• Sensitization of Judicial Officers with regard to referral of cases to Mediation
• Referral of cases and the necessity to point out the need for referral
• Referral at appellate stage to be done after briefing the parties about the possible benefits
• Record of the mediation at intake and output stages and not mere statistics
• Pre-litigation mediation in matrimonial matters and matters not involving limitation
• Mediators to be made available at Police stations and Chamber of Commerce 
• Allottment of cases by Roster/competency
• Addressing complaints about mediation process/mediators and quality control,
• Addressing complaints from mediators about the organization system, disputants/counsel’s attitude
• Addressing absenteeism of mediators and removal from roster
• Addressing concerns of the courts while passing order
• Remuneration of mediators

The Control of the Court over mediation process and orders after mediation:

A] when and what to refer                                              

B] monitoring the progress of mediation                      

C]matrimonial matters- the need for filing a mutual consent petition after the matter is settled in mediation

D] necessity for all parties arrayed as accused in a complaint under sec. 498A Cr.P.C. to participate in the mediation and sign the agreement                                  

E] avoiding mediation being used as a dilatory tactic            

F] awarding of costs when mediation is not used in Good Faith or when it is used as an evasive tactic.      

G] directives with regard to passing of orders immediately after the agreement                                   

H]directives for enforcing the agreement

BEST PRACTICES:

• Encouraging Self Determination
• Avoiding Bias
• Addressing Socio- Cultural issues
• Conflict of interest
• Confidentiality
• Flexible, voluntary and confidential process
• Mediation cannot be a panacea for all types of litigation or to prevent docket explosion
• Avoiding settlement oriented mediation without giving respect to relationships and factors in conflict
• “head bashing” experiences which negate the process of mediation has to be avoided
• Observing lack of authority
• Understanding third parties interest in the issue
• Handling resistance of  advocates
• Refund of court fees
• Use of technology, video conferencing, digital inputs like audio and video to assist in decision making

  COMPETENCY:

• Fixing pre-requisites for training of mediators
• Selection of trainees based on an assessment of  their  attitude to the psychodynamics of dispute resolution.
• Training to include behaviour and attitudinal problem handling
• Evaluation of mediators/trainers
• Mentoring
• Credentialing
• Continuing education by trainers from other states and abroad/skill building
• Training linked with knowledge based skills
• Training in special skills to handle different situations
• Regular Meetings to address problems faced by mediators
• Regular updating of mediation by conducting workshops, seminars and conferences at the regional and national level
• Training of trainers based on the core competency
• Assessment of trainers based on feed back and evaluation by outsiders
• Selection of trainers from different parts of the country and pairing them to enable trainers to understand different styles
• Fee structure for mediators and mediation trainers
• Requirement to attend continuing education programmes
• Training by trainers from abroad to understand latest developments and to upgrade
• Understanding socio –economic and cultural issues
• Interaction with other mediators to exchange information and share experiences

COMMITMENT

• mediators to have time and attitude for the process
• mediators to encourage self-determination by empowering parties
• belief in the process
• recusing when there is conflict of interest/bias
• avoiding benefit to self from mediation by solicitation/using information otherwise
• rapport with the parties and building trust
• encouragement and persuasion
• using information at the appropriate time to enable parties to take it in
• acquire knowledge based skills and update
• parties to participate in good faith
• agreement to be entered after actual understanding and recognition of the issues

CONFIDENTIALITY

• avoid situations which would lead to breach of trust
• disallowing media into mediation
• ensuring parties consent before discussing trade-offs

CERTIFICATION:

• updating knowledge, continuous personal development programmes
• regular assessment
• mentoring of district centres on a regular basis

DIRECTIVES:

• Mediation ought to be made mandatory at the inception of matrimonial proceedings
• Mediation ought to be made mandatory to matters of small causes at inception and period of limitation to be excluded while in mediation
• Mediation to be made mandatory with regard to suits relating to property, money matters, succession
• Directives regarding referral
• Directives for passing of orders in matrimonial matters without waiting for the statutory period, or making it necessary for them to file a petition by mutual consent.
• Directives for criminal actions relating to matrimonial issues/relationships and property matters
• Provision for costs in mediation when used as dilatory tactic

It is said that “You cannot shake hands with a clenched fist” . The  Mind Set of disputants, mind set of the Bar and mind set of the organization of Mediation has to change.

As the practice of mediation evolves, we will have to reshape the whole system. It is not the time to  be complacent or to cheer ourselves about the progress of mediation. As the practice of mediation evolves, we will have to reshape the whole system. It is not the time to  be complacent or to cheer ourselves about the progress of mediation. The public is sceptic about the judicial process and it is necessary that Mediation practice is above suspicion. It is important that mediation satisfies procedural, substantive and emotional needs. A referral usually makes one wonder about  ‘Justice & fair play” and why they have to settle when  they have a good case.

Mediation and it’s practice ought to make disputants understand the 3rd alternative and move into the future learning to unclench their fists.