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A wealthy man in his will left behind vast properties including a big company to his four sons. However they could not agree on how to divide and manage their assets. Disagreements arose and positions polarized. The first casualty of conflict is communication. The brothers could no longer have a productive conversation. Feeling frustrated and helpless, they filed several cases against each other, including criminal cases. 10 years went by and the burden of litigation had its heavy toll. Two of the brothers died and the third was progressively getting more ill. At the funeral of one brother, their sister approached the mediator and requested for mediation. 40 hours of mediation resolved all disputes. They celebrated their family reunion after more than a decade. How could mediation achieve this outcome?
The goal in mediation is resolution, the goal in litigation is to determine right and wrong
Litigation is an adversarial process where parties are placed as adversaries / opponents and the Judge arrives at a decision. The process is necessarily rigorous and stringent requiring much deliberation, layers of appeal and several years in Court. In order to convince the Judge that he/she is right and the opponent is wrong, both parties indulge in destructive strategies, harsh threats and violent attacks. The conflict often escalates to self-destructive levels. We have often heard adversaries say “It is okay if I lose all my money, my opponent should lose all his too.” This is a ‘conflict trap’.
Mediation, on the contrary, is a collaborative process where no one judges and parties control the terms of settlement. The mediator’s role is to understand how each party sees a problem. “Perspective” is the golden language of mediation. Parties are given abundant opportunities to explain their perspectives and for lawyers to explain the law. Mediator controls the process and creates an environment conducive for resolution. Mediator uses sophisticated communication techniques so that parties feel heard and attempt to hear each other’s perspective, even if they do not agree with it. Information is exchanged and clarity brought in. Mediator works with the lawyers to help the parties understand the reality of the adversarial process with all the possible consequences it entails. Together they create several options and most often find a set of terms that are mutually acceptable to resolve their dispute. Through all this, the mediator is persuasive but non coercive. The experience of most skilled mediators is that almost 80 % of cases resolve at mediation.
Mediation focuses on the underlying interests of the parties, litigation focuses on the position taken by the parties
Two brothers Varun and Vijay, aged 9 & 11 were cycling in their gated community. A tragic headlong crash with a truck killed both of them. The devastated parents, although not in need of money, needed to be vindicated and their sorrow acknowledged. They filed a suit against the promoter claiming rupees ten crores as compensation. At the mediation the promoter offered rupees ten lakhs as compensation. The parents were furious and offended that their children’s life was valued so minimally. They threatened to walk out of the mediation. The persevering mediator kept the conversation going. The parents explained in anguish that no amount of money could compensate for their loss. Their memories were haunting. Those were poignant moments.
A settlement was arrived at where the promoter agreed to:
The ‘position’ taken by the parents in litigation was a claim of rupees ten crores. Parties in conflict take positions because they are safeguarding their underlying needs and concerns, both tangible and intangible. These ‘underlying interests’ often lie concealed and are the life giving force to the dispute. Mediation is a process which builds communication, brings in information, calms the parties and helps them to access their reason. Thus underlying interests are discovered and creative solutions found. The parents found comfort in the settlement found at mediation.
An adversarial process like litigation is necessary when a statutory or constitutional interpretation is involved, a precedent has to be established, policy to be formed, criminal cases tried etc. Mediation which is not adversarial, must be attempted when the dispute is about conflicting concerns of parties. For example, sharing of property, deficiency in services rendered, recovering money, company petitions, shareholder/vendor/employment disputes etc.
Courts in India are gradually recognizing the value of mediation after the amendment of the Civil Procedure Code in 2002 statutorily recognizing mediation as an essential alternative dispute resolution mechanism. When the US Courts faced backlog and pendency of cases, the Roscoe Pound Conference in 1976 initiated mediation in their Courts. Today many states in the US are realizing that 95% of the cases need not go to trial. Similarly Courts in UK, Europe, Australia and other developing countries are increasingly resolving disputes through mediation. The parties can avoid immense amount of stress, save money and continue better relationships.
As citizens of an overburdened legal system, we have a responsibility to reevaluate the way we approach conflict. As far as possible, all the players of a dispute must pause and consider a collaborative form of dispute resolution before jumping into the traditional adversarial form. Disputes arising from conflicting concerns have much to gain from going through a process that facilitates collaborative resolution as it allows parties to address their interests/needs, find an acceptable solution and move on in a timely, cost effective manner. Mediation supports human beings to operate from a rational and mindful space – as a community we therefore must support its use and urge disputing parties whenever possible to access their mature selves and pursue a process like mediation when placed in conflict.
I will end with a quote from Abraham Lincoln who once said,
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time.
The author, Laila Ollapally is a lawyer with over 25 years of practice in the Supreme Court of India and the Karnataka High Court. She is an accomplished mediator and was a Founding Coordinator of the Bangalore Mediation Centre. She is also the Founder of the Centre for Advanced Mediation Practice, an institution for private mediation services.