Rohit Kapoor
Every human being negotiates at some point in his or her life, on some matter or another, some more effectively than others. Mediation is a process of communication in which persons with a dispute, assisted by a mediator, reach an agreement, understanding, or reconciliation. Mediators are facilitators, which is they are there to assist parties to dispute who will make their own decisions about resolution of their conflict. They are a neutral party and impartial to the parties and the outcome. There is no decision as such that may bind the parties. This is clearly distinguishable from Arbitration. Arbitration involves decision making by a person who hears both sides and makes a decision about the disposition or resolution of the dispute. The arbitrator is a decision-maker; the mediator is not. Many people and practitioners view negotiation and mediation as distinct and separate processes, but the strategies, techniques and skills are essentially the same for both; only the format is different.
Mediation became institutionalized in the twentieth century where it began to be recognized as having a role in and of itself. The Conciliation Act relating to the conduct of industrial relations was enacted in the United Kingdom as early as 1896. Then in the United States alternative dispute resolution (ADR) processes were being formalized as an alternative to litigation early on with the U.S. Department of Labor (established in 1913) appointing a panel called the “commissioners of conciliation” to deal with labor/management disputes.
In India, mediation is monitored by the courts and is yet to receive adequate attention and acceptance as an Alternate Dispute Resolution (ADR) mechanism.
The suspicion of negotiative processes, is an ostensible feature of this Alternative Dispute Resolution tool, and often extends to questioning the character of anyone who would engage in, or suggest, the negotiation of a controversy. Neville Chamberlain, the British Prime Minister, was accused of appeasement because of his negotiation of the Munich Accord with German Chancellor Adolf Hitler in 1938, seeking to short circuit World War II. Similarly, President John F. Kennedy’s character was questioned for his pursuit of a negotiation with the then Soviet Premier Nikita Kruschev, instead of a first strike military action in the 1962 Cuban Missile Crisis. (Kennedy, Robert F. Thirteen Days, 1969; Film Thirteen Day.)
Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control lies with the judge. Often, a judge cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties. Mediation requires direct input from the parties. Parties must attend and participate in the mediation meeting. This process is fundamentally dependent on people’s ability and willingness to negotiate. Human race has survived and progressed because of this ability. Modes of conflict management, negotiative process is the most flexible, efficient, economical and clearly sensible for managing issues, differences, and disputes.
The suspicion of negotiative processes, is an ostensible feature of this Alternative Dispute Resolution tool, and often extends to questioning the character of anyone who would engage in, or suggest, the negotiation of a controversy. Neville Chamberlain, the British Prime Minister, was accused of appeasement because of his negotiation of the Munich Accord with German Chancellor Adolf Hitler in 1938, seeking to short circuit World War II. Similarly, President John F. Kennedy’s character was questioned for his pursuit of a negotiation with the then Soviet Premier Nikita Kruschev, instead of a first strike military action in the 1962 Cuban Missile Crisis. (Kennedy, Robert F. Thirteen Days, 1969; Film Thirteen Days).
The research indicates when threatened by others or a difficult situation, negotiation is seldom people’s first choice and not considered until all other modes of conflict management have been exhausted, namely the “fight-flight” syndrome. Neuroscientists claim there is a neurochemical release in the brain, triggered by a perceived threatening circumstance, to either withdraw and avoid the situation, or fight back. There is no neurochemical trigger to negotiate. Negotiation is typically a secondary response, which requires an effortful, conscious and intentional decision to engage the threat alternatively. With due regard to the author of this thought, I am of the considered view they first have in mind , may be in sub-conscious, the desire to have it settled amicably, without going to the Courts in litigation. Family disputes, lingering on for years together, create an impasse. And the impasse has, for sure has offered a creative opportunity for problem solving, thus has actually solved and resolved the problems that otherwise could have consumed lifetimes. Neuroscience suggests that after the frustration of an impasse, people tend to relax allowing other options to come to mind. (Benjamin, R.D., “The Joy of Impasse: The Neuroscience of Insight and Creative Problem Solving,” 2009). And this is true for sure, I can say with certainty. And I may reiterate most of the people do not wish to go the Courts for resolving disputes and will prefer mediation and which must come at the appropriate time and through proper person. Many a time relations, friends not having any professional training have proved to be successful mediators in resolving disputes and differences. And if this process is aided by professional mediators, it can indeed do wonders.
It may not be out of place to state, lawyers can play an important role by encouraging settlement through mediation. “Discourage litigation. Persuade your neighbor to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough”. Abraham Lincoln.
(The author is an advocate.)
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