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Two Points: Detrimental to any Mediation Process

I used to enjoy appearing in mediations as a counsel. Among other things, there is a lot of learning happening during the process of which I can use in my mediation initiatives. Secondly, I encourage the clients to grab the opportunities of mediation proposed by the other side.

From a recent experience, I learned a couple of circumstances which would go against your mediation initiatives and I decided to share them.

Recently, I got an opportunity to represent a client before the mediator. It was a matrimonial dispute. I usually do not disclose that I am a practicing mediator, while representing a client in a mediation.

Mr.K, my Client is a quiet man who is working for a multi-national company. In Mr. K what surprises me most is his ability to keep his calm in any devastating situations. As his Counsel, I used to think that Mr.K, as a loving husband and father, doesn’t deserve to undergo many of mishaps happened in his marriage. There are many cases filed against him by Mrs. K, and he still manages to look at those issues objectively.

When Mr. K received the Mediation Notice initiated by Mrs. K, I urged him to attend it and he agreed if I accompany him. I was fine to do that as it’s a great learning experience and also I did not want lose the opportunity to meet Ms. J, the Mediator.

During the couple of meetings, what was most striking element was the immense persuasion skills of the Mediator. Ms. J is a known personality among the mediators. I never had an opportunity to meet her so was glad to appear before her on behalf of my client, Mr. K.

During the first meeting, after the introductory process, I could feel an urgency is being shown by Mrs. K and her counsel and to my surprise Ms. J, the Mediator had consented to it. As a Mediator, I believe that giving time to the parties is the crucial part of a Mediation, specially in a matrimonial dispute, there would be a flow of strong emotions. It can be settled through passing of time only.

Since, Mr. K was involved in discussion directly, I had enough time to observe Ms. J, the Mediator. She is an amazing Mediator. She controls the meeting in a subtle but authoritatively. I observed that both Mrs & Mr. K were completely into the process. And they were fully engaged in the discussion.

Though, I was listening actively, something stuck in me which made me uncomfortable. Somehow, I felt that the persuasion techniques being used by Ms. J, the mediator is not appropriate in mediation; at least what I learned and practice. When the discussion was progressing, finally, with much effort, I could understand that Ms. J was in a hurry to convince Mr. K, my client about the payment of a sum of rupees to Mrs.K, his wife. To my surprise, Mr. K agreed to the proposal, even before consulting me!

Having agreed to the payment, Ms. J, the Mediator was using all her convincing skills on Mr. K to effect the payment within a week time. At this point, I interfered and requested a break which was agreed by Ms. J, though hesitantly.

I took Mr. K to the outside the Hall and made him sit comfortably in the lobby. Apparently, Mr. K was in a semi-hypnotized condition. When I asked him about his instant agreement to the payments, he told me that “Ms. J was right and I owe the money to my wife and I’ll pay it in a week..!”

I was shocked. Legally, Mr. K is not liable to make any payment in absence of an order from the court and the case is at the preliminary stage..! After a pause, I could convince Mr. K that he should ask for one month time for making the payment and meanwhile let’s discuss it length.

When the session resumed, Mr. K informed Ms. J that he needs time to think about the payment, and the next meeting be scheduled after a month. Mrs. K opposed it vehemently and she insisted that next session can be after a month; but the payment to be done by Mr. K in a week time. To my surprise, Ms.J was in support of Mrs. K. the meeting concluded without any mutual agreement.

As I needed to attend another meeting, I told Mr. K to meet me after two days, at my chamber. Rest of the day, I was rewinding the entire mediation session. I still felt that there was something wrong in the session lead by Ms.J, the Mediator.

As agreed, Mr. K met me at my office. To my surprise again, Mr. K informed me that he’s not ready to make the payment to Mrs. K in a weeks time. I was surprised by his reasoning. He says, Ms. J has an amazing power of persuasion and he was caught into it. The next thing he said was very strange to me.. He said, during the session, he was so convinced about the reasoning’s of Ms. J, the Mediator and he was feeling guilty about not making the payment..! But when he reached home, he realized that he doesn’t want to make the payment to his wife as she even denied to his visitation rights of meeting children, at the weekends. Mr. K was very firm that he’ll not make the payment unless Mrs. K agrees to meet the children for the coming weekend. Though, I consoled Mr. K, I was curious to know, what made Mr. K to agree for the payment, during the mediation session. Mr. K, after a long pause, told me that Ms. J is a person who has a power to convince any thing; but it would have only a short-term effect on the other person. He added that according to him, Ms. J is not fit to act as a Mediator.

Still, Mr. K agreed to carry a check to Mrs. K in the next session and he suggested to me that he would hand over the same to her, if she agrees to meet the children. I agreed to it.

After a week, I got a call from the counsel of Mrs. K and checked whether Mr. K, my client had made the payment he had greed in the session or not. I told her that there was no such ‘agreement’ it was all the discussions during the session and in any case, it can be further discussed in the next meeting.

Again to my surprise, I got a call from Ms. J’s office that next meeting can only be done once Mr. K make the agreed payment and no more meeting prior to that..!

The fact remains Mr. K was willing to pay the amount to Mrs. K at the next meeting, which never had taken place.

During the entire episode of Mr. K’s case I learned the following lessons:

1. A mediator should not pursue the parties beyond a point for a settlement. Even a party is convinced on such persuasion and reasoning that feeling would be a short lived one. Once she/he is out of the ‘aura’ they go back to their stand; and most devastating effect is they would be suspicious about the intentions of the Mediator; Mr. K did not agree to cooperate with Mediation, until Ms. J was replaced with other Mediator.

2. Never discontinue the meetings and discussions; as you never know when would a common agreed points arise, during a mediation proceeding. Mr. K was ready to make the payment in the next session. Mrs. could not hold the children beyond a point as the matter is already pending the court. I wished the next meeting should have happened, the major disputes between Mrs. & Mr. would have been settled. But Ms.J’s office put a condition of making payment for the next meeting.


Muhammed Rafeeque

Muhammed Rafeeque is a lawyer and an accredited mediator. He’s the founding member of VLegal. Muhammed is practising in India (Bangalore). Muhammed has immense experience in settling the commercial disputes. Muhammed has almost three decades of experience in practising law, in India. Muhammed has worked for Airports Authority of India;… MORE >

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