Torch Bearers in Mediation

Goals, predictions, vision statement. Frame it in any manner, what stakeholders are looking for is the fulfilment of the promise of mediation. Everyone involved carries an emotional baggage and expectations that may or may not match the possibilities in the situation, but then, it is their demand and the rush of adrenalin in the dialogue that carries the conflict to it’s peak as an escalation or manages to bring it above the surface for disputants to enjoy the thrust of the waves. This presupposes a change, a motion or an effort to understand.

Karma, Dharma, and Viveka are concepts of the orient that cannot be circumscribed in a simple definition. While Karma is understood as change, Dharma is accepted as equity, justice, fair play etc, and Viveka as equanimity. Karma is in effect, conflict resolution as change occurs by an action and consequent reaction,  and equanimity comes in, once disputants understand the possibilities.  When the attitude changes from instinctive and impulsive reactions to introspective and innovative change is automatic. The way forward for mediation is in understanding that Karma is constant, Dharma depends on perception, and Viveka is in accepting responsibility

We are at the cross-roads today as there is dissonance and resonance in the cognition about mediation. An emotional and cognitive knowledge of the situation alone, can assist the mediator to plan a strategy for the resolution. An aggressive or passive interaction with disputants can make or break a mediation. Mediators ought to be sensitized to different thought process without being judgmental and ought to take a balcony view of the emotional reaction of a disputant and their expressed wants. Personal experiences tend to make a mediator judge the outcome and this unconsciously puts spokes in the wheel of resolution.

An appraisal of the mediation framework and it’s practice today reveals that it is take that we recognized certain factors that aid/hamper the path of  mediation:

1. Perception about mediation:

The lawyer community is yet to accept mediation as an appropriate dispute resolution process as they feel threatened and do not understand the inherent benefits for their clients.  In a high context society, disputants tend to have the emotions running high and are at a loss to have a realities perspective of the situation especially when their lawyers do not give them a real and global picture. For some, reacting and scoring points appear to satisfy their present expectations and so they do not move forward to connect. The mediators also gives up at one point holding them as responsible for the impasse in negotiations, and term them as “difficult People”. In reality, they are waiting for some ‘help’. The disputant’s ability to perceive collaboration as an optimum end has to be encouraged by the mediator and this shift in perception occurs only when disputants understand their strengths and abilities. ‘Outsourcing’ is not what the disputants want in conflict resolution.

The mediator’s ability to be patient and persevere is often stretched beyond the elasticity it can afford. The disputants, primarily, have to be comfortable with the process, ought not to have under currents that hamper the rapport and must approach mediation with a commitment. Often times, the lawyers and others who assist the disputants in the mediation, are themselves not believers of the process and thereby this hesitation to participate whole-heartedly trickles down unwittingly in the subsequent stages. Mediation is at times not taken seriously enough as it a flexible process, mediator lacks  authority, and participation is without prejudice and it is voluntary in nature. Institutionalizing mediation & accreditation of mediators will give credence, authority to control and ensure valid and effective participation by the stakeholders.  

2. Control:

Though the mediator is presumed to be unbiased and neutral, personal beliefs and values, at times unwittingly creep in, and even body language could reveal the differences between the mediator and the disputant. Technically, though the mediator is in control, the disputants tend to marginalize the weaker disputant from getting their narrative in resulting in an imbalance, whether perceived or not. There is an attempt to project a story, a goal, an expectation,  a behaviour in a conflict. To understand the trigger that caused the conflict, it is necessary for the mediator and the disputants to move their attention to a holistic perception. This is often negated by the pressure consciously/unconsciously effected by  the stronger disputant resulting in a  ‘cognitive strain’ on the dialogue.

Disputants have to be given enough time and space and made to take a ‘different view’ from another position to assist them to move to a resonance and reconnect. Unless this happens, there can be no mending of relationships or even stressing on the need for keeping alive the relationship. Without re-establishing an open relationship, trust is well-nigh impossible. The strong reactions of disputants promoting a belief that resolution is impossible, can be changed only when equanimity is achieved. Disputants then understand what is possible. The mediator has to have control over this dialogue which moves from ‘justice’ to ‘what is fair’. Disputants then are in a tranquil mood to consider possibilities and even part without resolution in a more favourable frame of mind. This is the goal of mediation.

3. Responsibility:

Often times, disputants do not recognize the need to accept responsibility for a conflict. They only want to project a story that either they want to believe or believe that others will accept. Also the impact of emotions on memory and the way a situation is perceived due to super-imposition of a memory are hard to unravel, unless parties take ownership for the resolution. Ensuring that there is no reduction of status of the person, and then telling disputants what they have to hear, making them listen and then reiterating what they should know, enables them to move on to resonance from dissonance. At this stage, superimposition of ‘good data’ over the selective appraisal of the situation enables disputants to move from the clutches of their memory and emotions to rationalization. The mediator’s perseverance through this passage calls for a lot of struggle and showing the door.

Oftentimes, the mediators, settle for pointing out the end result in a click of a finger, without allowing disputants to go through this process of self-determination and this vitiates the entire process.  The disputants get to read the end of the story, without going through the various chapters and feel ‘cheated’ out of decision making. The mediator’s responsibility is only to carve the path and not to jump to the end. Unless disputants are enabled to accept, responsibility they will not honor the agreement.

4. Maximising vs. Satisficing: {Herbert Simon}

Mediation is today the most appropriate ADR and also the least opted for ADR either because of lack of familiarity with the stakeholders or because of the quality of the practice. Mediators who have been in it for a long time, have gone into auto pilot while mediating and want to ‘finish it’. This attitude has given rise to a section of disputants being wary of the process and the control it seems to afford them. Also disputants who have not acknowledged their ability to decide have given room for the mediators to throw the ‘goal’, resulting in bitter taste to the aftermath of the decision making.

The need in mediation is to allow the expectations about choice to match the control over the choice. Barry Schwartz says that the question that is important for the quality any decision making is “ Is it objective e results or subjective experiences?” The subjective well-being of a person is more important than what the process would give them in terms of their expectations. How a disputant feels about a decision is more important than the best deal and this is what the mediator has to come to terms with. Ultimately, it is the disputant whom has to handle the psychological consequences of the error in the decision making and this can be off- set by the effort put in by the disputant, if he/ she has made the decision.

We need to PAUSE, LISTEN, and understand that to CONNECT and re-establish relationships, is more important than getting to a closure on the conflict. Getting the best deal is not as important as understanding what is best.

The ‘PROMISE OF MEDIATION’ is freedom to make a choice. This freedom is the catalyst for dispute resolution. Every mediator has to have the VIVEKAM to allow disputants to find their way through the maze of their conflict by strengthening their ability to build bridges, be it in  relationships, commercial transactions, or even in acknowledging NEEDS of fellow human beings.  What we need now, is for more people to believe in mediation and it’s strengths, talk about for mediation to become an “availability heuristic" [ Kahneman and Tversky’].

CAUTION:  SELF- DETERMINATION and GOOD FAITH PARTICIPATION  can never be sacrificed or undermined.

                       

Uma Ramanathan

Uma Ramanathan, Advocate, Mediator, and Mediator Trainer. She is also the Organising Secretary of the Tamilnadu Mediation and Conciliation Centre, High Court, Madras. She practiced as an advocate in the High Court Madras, Tamilnadu, India for 29 years. She has been practicing as a Mediator since 2005 and training mediators… MORE >