MEDIATION :   A MIDDLE PATH

Most of us might have heard about the story of a hidden mango. A teacher was taking class on mathematics for primary class children. She called a boy and asked him if you have three mangoes and  you ate one, how many mangoes would be left with you. He answered 3 mangoes. Again the teacher repeated the question, the boy answered the same. Teacher got annoyed and shouted at the boy ‘how can it be , out of three mangoes you ate one how can there be three mangoes left’. The boy was never yielding and was obsessive.  The teacher changed the mangoes with apples. His answer was correct. Teacher again turned to him and patted him. ‘Yes’ , Now it is correct ‘ .Similarly how many mangoes would be there out of three mangoes if you ate one. The child repeated his answer and told the teacher that ‘I already got a mango in my pocket , then how could I give a wrong answer. The teacher understood her folly of not applying her mind. This is the hidden mango which the teacher could not make out and was answer to the clue. Or this is called out of the box suggestion ie to make out totally new assumption that could never be thought of or  hidden from the eyes of the disputants. 

During a meeting, earlier Chief Justice of India was suggesting that most of the cases in Indian courts could be resolved through Alternate dispute resolution , especially through Mediation.’ ‘At a time when the courts have been accused of pending cases, with more than three crores cases, Mediation would be a best alternative for speedy resolution’ he had observed. As rightly pointed out by the ex-CJ , most of the disputes are trivial and frivolous in nature and could be easily resolved by some one who can lend his ears and give a patient hearing. As an Advocate / Mediator, I have in my hand numerous cases which are very trivial in nature like, property disputes, partition matters and petty family matters. The issue is the parties concerned are not fully aware of the Mediation process and are not ready to give a try. The reason is that they feel that during mediation, the mediator would be taking sides and could be influenced by the other party. This fear is unfounded since mediators are independent persons and do not gain any thing by being influenced as the mediation process is not judicial in nature but it is left to the decisions of the persons concerned . Mediator does not influence any one to impose any decisions but promote and facilitate a cordial atmosphere to make them think coherently and help them to evolve a solution. Thus the cordiality of the parties are encouraged and a cordial atmosphere is created to help them to think for a solution within a shortest period of time.

Here only the mediator’s job begins ie to bring the warring group or persons to sit across. In some of the countries it is a prerequisite to make an attempt for resolution of a dispute through mediation and on failure only it comes to courts. This filters most of the cases as the parties also find it convenient to avoid  prostrated litigation. In India parties are not willing for mediation even if advocates prompt them for mediation. This is because of the sociological aspect and prestige.  This happens even in family disputes like partition, divorce, land disputes etc. The above three categories could be easily resolved by an effective mediation by a shrewd mediator who can sit patiently. A trained mediator, ie accredited mediator( accredition is done by the Institute of Arbitration and Mediation (IIAM) , an affiliate body of International Mediation Institute) can resolve such issues by helping  the parties to evolve a solution. Such mediators not only prepare the litigants for mediation and move methodologically by offering effective and out of the box suggestions as mentioned in the story of hidden mango, which makes it easy for a faster resolution.

This process was once prevalent in Gujarat among trade communities , like a process of arbitration and mediation , now known as Med-Arb. This was found to be very effective , in the sense , this does not create any heart burns among the traders, thus it retains mutual faith , as the resolution is helped out purely on mutual consent.  I have tried to convince my clients , but only a few were ready to test this method, even after reassuring the litigants that they need not have to withdraw their cases. In banking sector, similar methods akin to mediation are used as generally known as one time settlement. Here it seems to be arbitrary in nature as most of such settlements are like arbitration.

In present day trade deals, conflict is bound to happen and for finding immediate resolution, some of the contracts include a Mediation clause. In certain cases companies or bodies prefer to have a DRB or Dispute resolution board which meets frequently to quash any differences or misinterpretations. IIAM takes a role in nominating accredited Mediators to the board on request.

Already there is a custom of court directed mediation in the case of family matters etc. Probably in coming years , its awareness may grow as Government of India and also the Supreme court of India favour mediation as an effective tool for dispute resolution. IIAM , an independent body affiliated to IMI , the global body , is also taking much initiative to  popularise this and  create awareness.