Rohit Kapoor
“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.
Frown or pout! I may state, people do not wish to go the Courts for resolving disputes and will prefer mediation. It’s a fact of life; 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.
It has been observed, 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. 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.
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. It questions the character of anyone who would engage in, or suggest, the negotiation of a controversy. 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.)
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 utmost regard to the author of this thought process, I somehow feel; first have in mind , may be in sub-conscious the wish to have it settled amicably without going to the Courts in litigation. And lawyers have an important role by encouraging settlement through mediation.
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). Family disputes, lingering on for years together, create an impasse. And the impasse has, for sure has offered a creative opportunity through mediation for problem solving, thus has actually solved and resolved the problems that otherwise consume lifetimes. In recently concluded conference and workshop on mediation in Srinagar last week, it has been described as a ‘game changer alternate medium of delivering justice’.
(The author is former Additional Advocate General, State of J&K)
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