Prateeksha Sharma

Mediation

Mediation is done between two conflicting parties with prior agreement that both wish to find a solution instead of ignoring the issues. A vast number of mental health issues originate in families and bring distress to members of a family. Since at times it is not feasible to get into a long-winding process of counseling, mediation may be better to resolve conflicts instead of counseling.

 

If both parties are willing, a three-session long mediation process is set up, in which one each session is devoted to listening to each of the parties concerned. In the third session both parties come together with the mediator and arrive at a solution which is agreeable to both.

Please note mediation outcomes are not legally enforceable, and are dependent upon the willingness of individuals concerned to resolve matters, instead of ignoring them or taking them to a court.

What is mediation?

The essence of mediation lies in the role of the mediator as a facilitator. The mediator is not an adjudicator. Unlike the Judge in a traditional Court setting or for that matter even an arbitrator, the mediator is neither a trier of fact nor an arbiter of disputes. The role of the mediator is to create an environment in which parties before him are facilitated towards resolving the dispute in a purely voluntary settlement or agreement. The mediator is a neutral. The neutrality of the mediator is akin to the neutrality of a Judge but the role of the mediator is completely different from that of a Judge. The mediator does not either deliver judgment or dictate to the parties the terms of the agreement. As a neutral, the function of the mediator is to enable the parties to arrive at a mutual and voluntary agreement. This, the mediator can achieve if he understands and perceives the nature of his function correctly. As a facilitator, the mediator has to understand the underlying issues between the parties. In order to do so, the mediator has to open up communication between the parties and between the parties and himself. The mediator has to enable the parties to understand their own interests and to understand the interests of the disputing party. The mediator must enable parties to distinguish between their positions and interests. In the process of dialogue before him the mediator enables parties to appreciate and evaluate their own interests and those of each other. All along, as he facilitates communication between the parties, the mediator controls the process ensuring on the one hand that he is not judgmental or on the other, an advisor. The effort of the mediator is to ensure that through the mediation dialogue parties arrive at a solution which is in their best interest. Like many other branches of law, acronyms are not unknown to mediation and it has been stated that in enabling parties to move towards a settlement, the mediator has to reflect on the precepts of BATNA, WATNA and MLATNA.

  • BATNA stands for the ‘Best Alternative to a Negotiated Agreement”;
  • WATNA for the ‘Worst Alternative to a Negotiated Agreement’ and
  • MLATNA for the ‘Most Likely Alternative to a Negotiated Agreement.’

The essence of mediation is that it (i) focuses upon the parties’ own needs and interests, (ii) provides for a full disclosure of competing interests and positions (iii) confers upon the parties a right of self determination, (v) allows for procedural flexibility and (vi) maintains privacy and confidentiality. The mediator, it is well settled, is the guardian of the process and it is the mediator who has to ensure that parties maintain complete confidence in the proceedings.

 

Extracted from Chandrachud, Justice D.Y. Mediation- realizing the potential and designing implementation strategies. Available at: https://lawcommissionofindia.nic.in/adr_conf/chandrachud3.pdf