MEDIATION & CONCILIATION
By Prathamesh D Popat - Counsel, Mediator & Trainer
A Court of Law renders a decision on past actions on the basis of the law then applicable. This decision is thrust upon the parties and the parties have to either live with the same or choose to undergo another torturous round of litigation by filing an Appeal against such a decision. Besides the fact that the Courts are over-loaded with pending dockets, the outcomes of the adversarial system can rarely ever safeguard the interests or uphold the rights of the parties to the extent of their expectations. Keeping this in mind, several jurisdictions across the globe have come up with a variety of innovative dispute resolution mechanisms which may be looked at for opting for the right one for the dispute at hand.
Some of these mechanisms have been incorporated in the Code of Civil Procedure, 1908 (CPC) by introduction of a new Section 89 (S.89). Where the disputes are already pending in Court, S.89 has opened up several options for the parties to select a dispute resolution mechanism which will support them in arriving at their own resolutions or at least consider a forum of dispute resolution that would be more efficacious than continuing their litigation in the Court of Law.
Section 89 enables the Courts to refer the cases filed before them to such dispute resolution mechanisms as may be suitable to each of them, keeping in mind and accommodating where possible the wishes of the parties. Thus, parties can, in a pending litigation, agree to have their dispute resolved by Arbitration and on their giving such consent in writing, the Court would refer the same to Arbitration. However, no such agreement is required for the Court to refer the dispute to some other mode, viz. Mediation, Conciliation or LokAdalat as, unlike Arbitration, the outcomes in these other mechanisms are not thrust upon the parties. They become binding on the parties only if they so choose of their own volition.
Whereas there are several dispute resolution mechanisms which could be deemed appropriate for different scenarios, Mediation has been found to contain ingredients which are borrowed to an extent by all other dispute resolution mechanisms. The purpose of this writing is to offer a glimpse of the basic facets of the Mediation process. As Conciliation is a very similar to Mediation, it too shall be discussed, more so because of its juxtaposition in the Indian Legal context. Firstly, however, it is essential to understand the process of Mediation. There are
several types or styles of Mediation, like Facilitative, Evaluative, Narrative & Transformative. We are concerned here only with Facilitative Mediation and Evaluative Mediations, which is often the term used for Conciliation.
A proper grasp of the dynamics of the process will require one to be in an actual mediation, rather more than just one. However, an overview of Mediation is attempted herein through the explanation of each of the aforesaid Stages of Mediation coupled with some optional, recommended mechanisms which often play a key role in lending speed and/or creativity to the process as a whole.
Mediation is a process for enabling parties to a dispute to discuss their differences and negotiate a resolution thereof with the assistance of a neutral viz. the Mediator. It is in essence a facilitated negotiation and has the potency of dealing with not just the stated differences but also the underlying concerns to the extent that the parties prefer addressing. It is a confidential process and hence nothing discussed in the course of the Mediation can be divulged to any outsider without the consent of all the parties except for the purpose of enforcement, where essential. Party-Autonomy is one of the main pillars in Mediation and hence it is for the parties to choose the person they consider would be appropriate for acting as a Mediator. However, this privilege could be passed on to the designated institution where Institutional ADR has been agreed to by parties. Even a Court may select the Mediator for the parties, in absence of agreement amongst parties where the matter is already pending before the Court.
Being an informal process, Mediation is not only cost-effective but is also stress-free in comparison to litigation and Arbitration, which are ridden with procedures. The benefit to the parties in real terms is that they get to participate in the dispute resolution process directly rather than through their lawyer and they work out their own resolution in collaboration with the other side rather than have a decision thrust upon them whether they like it or not. And they can start this collaborative process as soon as they choose to rather than wait for months and years for the Court to start the adversarial process.
The disputing parties can commence the Mediation process by firstly agreeing to have one as also agree upon the Mediator. They could either adopt the Mediation Clause of an Institution or choose to have an ad hoc Mediation. On acceptance of the appointment by the Mediator, he would, where he considers appropriate, conduct a pre-mediation conference separately with each of the parties for considering any stated or obvious resistance to bona fide participation in the Mediation process. The Mediator may even have a Preliminary Conference with both the
parties for exchange of position papers and to discuss procedural matters like fees, necessity of experts, need for letters of Authority to participate and settle on behalf of parties not present in person, etc; and then proceed to finalize, with the concurrence of the parties, the date, time, venue and duration of the first Joint Meeting of the parties.
THE MEDIATION PROCESS
Mediation, being in essence a facilitated negotiation, requires certain managerial and communication skills on the part of the neutral, the Mediator, which can be tapped and honed only by undergoing a hands-on training for that purpose. Being a soft-skill, it cannot be learnt by reading a book or even an instructional manual. By and large, a 40-Hour Basic Training, coupled with attending and then conducting some Mediations, followed by presentation of one’s skills before a Review Committee as also giving of a test is becoming an acceptable standard globally for recognizing a person as a ‘Mediator’.
Though the dynamics of a structured training requiring hands-on participation cannot be reduced to writing, one can get a sense of the Mediation Process by looking closely at its various stages.
The essential stages are as under:
1) Opening Statement by Mediator
2) Opening Statement by Parties
3) Agenda Setting
4) Exploration of Issues
5) Private Sessions
6) Joint Sessions
Mediator’s Opening Statement:
The Mediator holds the first Joint Meeting between all the parties involved in the dispute whereat he introduces himself and gets Parties to introduce themselves and inform how they would like to be addressed. He gets a sense of the applicable time constraints, like Limitation periods or Court deadlines or involvement of perishable goods in the dispute, etc. He then explains the Mediation process, clarifies issues on which doubts have been raised and, with the concurrence of the parties, establishes the ground rules for a smooth implementation of the process.
He explains :-
that each party will make their Opening Statement whereat they shall, in 5 to 7 minutes, give a brief understanding of the dispute from their perspective, at which time there shall be no interruptions by any other person; any remark or comment, if any, on what is being said by the speaker should be noted down and mentioned by the others when it is their respective turn to speak;
that everybody will be given an opportunity to speak and respond; however, there shall be no interruptions at this stage;
that there will be ample opportunities later on for more open, interactive discussions; - that all the participants shall maintain a decorum of mutual respect in their interactions; - that the process is a voluntary process and each party is free to seek to end the process should they so choose (ideally, a Mediator seeks an agreement from the parties that should they consider ending the process, they would have a private session with the Mediator prior to taking that decision formally);
that the process is confidential and that nothing said, or no document disclosed, in the Mediation is to be used in evidence unless otherwise obtainable independently, i.e. de hors the Mediation;
that the Mediator cannot be asked to give a Statement or Affidavit nor can he be called as a witness to give evidence with respect to the said Mediation;
that the Mediator’s fees are to be paid equally by the parties;
that the fees and expenses of any expert called for assisting in ascertaining certain facts or position are to be paid equally by both the parties, unless agreed otherwise in advance by and between the parties;
that the Mediator would be having Joint Sessions & Private Sessions as and when he may consider necessary and that any party is free to request a Private Session with the Mediator and the same would be held as soon as the Mediator can appropriately facilitate one;
that should there be anything that any Party would be feeling uncomfortable to discuss in a Joint Session or consider it necessary to discuss only confidentially with the Mediator, they may request a Private Session for the said purpose;
that the discussions held with Parties in Private Sessions would be confidential between the Mediator and that Party unless agreed to otherwise between them;
that the Mediator would be announcing breaks in the course of the sessions and that parties may request one too should they feel one necessary and the same would be taken as soon as the Mediator can accommodate it;
that he is in charge of the process and the parties are in charge of the outcome; - that he would, therefore, not be deciding for the parties but would be facilitating opportunities for them to resolve their disputes and differences for themselves; - that he would not be representing any party’s interests or advising any party and they should look to their lawyers for seeking any advice necessary for safeguarding their interests;
The aforesaid do not comprise an exhaustive list and points may be deleted or added depending on the background of the process. For example, where some party is not present in person or is a company and is represented by an employee or officer or lawyer, the Mediator would insist on being given a letter of authority from such Person or Company in favour of the representative not only for the purpose of participation in the Mediation process to represent the interests of the said Person or Company but also to settle on their behalf in a binding manner.
Parties’ Opening Statement:
The Mediator then invites the parties to make their respective Opening Statement one after another. He could leave it to the parties to decide who starts first or himself decide the same. As each Party makes its Opening Statement, the Mediator will take personal notes, in bullet points, of the contents of such Opening Statement. He would then, in a minute or so, recap in an empathetic manner what the Party had stated and seek confirmation of the same, request clarifications should he require any and ask whether any point required to be added at this stage. This exercise would be repeated with every party making an Opening Statement.
Care is taken by the Mediator to reframe certain portions of a party’s opening statement should they appear to him to be too over-bearing on the other party.
Setting the Agenda:
Drawing from what was shared by the parties in their Opening Statements, the Mediator would then work with the parties to draw up an Agenda of Issues which according to the Parties need
to be addressed for bringing about a resolution of their disputes. The Agenda helps to give legitimacy to every Party’s Issues and also objectifies those Issues thus providing a roadmap of all that needs to be discussed and creatively dealt with in the course of the Mediation Process.
Exploration of Issues:
From the Issues listed in the Agenda, the Mediator would get the Parties to pick the Issue they would like to discuss first. Though all Issues are to be discussed at length, the Parties may consider some more important or crucial than the rest and would hence choose to discuss those first. Usually, for maintaining clarity and having a focused debate, the chosen Issue is clearly agreed upon first, listed on a separate sheet of paper and only then taken up for further exploration where details thereof are looked at closely and discussed at length.
In the course of making their Opening Statements or while Setting the Agenda or Exploring the Issues, parties may have some underlying concerns which may prevent them from discussing every aspect of their conflict in the presence of the other party. These issues can be taken up by them with the Mediator confidentially in a Private Session. Several reasons exist for Parties to have a need for Private Sessions. For example, they may feel over-powered by the presence of the other Party, in which event the Mediator will thereafter make efforts to reduce that power imbalance; they may have an introvert personality, in which case the Mediator will hear them out at length in the Private Session; they may have some additional information to share about their position qua the dispute, which they feel the other Party may take undue advantage of on coming to know of the same; they may have a fair proposal for resolving the dispute but the very fact that they make it may render the settlement proposal unacceptable due to the reactive devaluation (this is most commonly noticed in the appointment of the neutral, be it a Mediator or an Arbitrator, where the very fact that the other side has recommended the neutral is sufficient ground to reject the said person for such appointment), in which case the Mediator would, on the request of the Party suggesting it, consider the fairness of the proposal and, on being satisfied, communicate it to the other Party.
Private Sessions are held at several stages with different Participants, not necessarily just the Parties. The flexibility of the Mediation Process affords the Mediator the privilege to have Private Session with just one Party, just one Party with its lawyer, just the lawyer of any Party, just the Lawyers of both the Parties or just the Parties only (without their lawyers). And this the
Mediator can have at any stage in any combination and as many times as he considers it necessary for assisting the Parties in resolving their dispute.
A Joint Session is held once again after the Mediator has been able to have a Private Session with each and every Party and with such other Participant/s as he considered necessary. At this Joint Meeting, the Mediator invites all Parties to put forth their ideas and proposals for resolving the dispute and commence negotiations in that regard. The Mediator takes a backseat and allows parties a free hand to communicate with each other. He only ensures that the discussions proceed in a collaborative manner with the focus on the future and the likely solutions for the dispute rather than getting caught in the past or any ‘blame-games’.
The Mediator would work with the Parties to keep them focused on what he would have discussed with each of them in Private Sessions on the basis of their BATNA, WATNA & MLATNA. These are perspectives which the Mediator invites Parties to bear in mind when negotiating a settlement. These are their Best / Worst / Most Likely Alternatives To a Negotiated Settlement. Where required, the Mediator would hold Brainstorming Sessions and would have further Private Sessions for understanding and addressing underlying concerns of Parties and then get them back in Joint Sessions.
When a settlement has been reached by the Parties, the Mediator would once again break into Private Sessions with each Party and do a Reality Testing of the terms of settlement proposed in the Joint Meeting.
After the necessary modifications as may be required, if any, the final terms of settlement are reduced to writing by the Parties or their lawyers or the Mediator (if requested by the Parties) and the same is signed by each of the Parties and the Mediator.
Part III of the Arbitration & Conciliation Act, 1996 (the 1996 Act), lays out elaborate procedure for the conduct of Conciliation, a close cousin of Mediation. There is not much difference between Mediation and Conciliation where the process is concerned. There is just a slight difference in the role of the neutral who, as a Conciliator, plays a proactive role in the resolution of the dispute. Thus, whereas a Mediator only works with the parties to get them to come to their own solutions for their dispute, a Conciliator – being either an expert in the field from which the dispute arises, or having considerable experience in the type of situation faced by the parties, or by virtue of having an objective perspective of the conflict and being privy to the underlying concerns of the parties – suggests some terms of settlement which he feels may be acceptable to the parties. Parties could then work on that suggestion formulated by the Conciliator and then adopt it if they so choose with such modifications as they can mutually agree on.
Whereas there are formal styles of Conciliations – to which formal rules of procedure apply and where the Conciliator imposes a solution at the end of the process if the parties have not been able to reach one on their own – these exist only in certain Tribunals having niche jurisdictions. Section 73(2) of the 1996 Act leaves the option open to the parties to settle or not at the end of
the process of Conciliation as envisaged under this Act. However, where a dispute has been resolved and a Settlement Agreement to that effect has been signed by the parties and the Conciliator, then as per Section 74 of the 1996 Act, the said Settlement Agreement has the status and effect of an Arbitral Award on agreed terms under Section 30 thereof.
On comparison between Mediation & Conciliation, the benefit of one over the other is this that Mediation, though a slightly longer process, has the tendency to not only bring about a wholesome resolution, but also helps strengthen the relationships of parties in a way that future disputes between them either hardly arise or are dealt with by themselves without the need for external intervention. Conciliation, on the other hand, lends considerable speed to the process of resolution, veering focus on the issues in the dispute, where parties’ relationships may often take a back-seat. Each has its benefits. The choice between the two should be made keeping in mind the parties’ relationships vis-à-vis need for an early settlement.
Furthermore, it must be borne in mind that whereas Mediation is a process available for all types of disputes, Conciliation, as per Section 61 (2) of the 1996 Act, can be opted for only in situations where the dispute arises out of a legal relationship, whether contractual or otherwise.