Consentia on Multidisciplinary Research

The Future of Mediation

Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.

The term “mediation” broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.

Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement. Much depends on the mediator’s skill and training. As the practice gained popularity, training programs, certifications and licensing followed, producing trained, professional mediators committed to the discipline.[1]

Mediation is not something new to India. Centuries before the British arrived, India had utilized a system called the Panchayat system, whereby respected village elders assisted in resolving community disputes. Such traditional mediation continues to be utilized   even   today   in   villages.   Also,   in   pre-British   India,   mediation   was   popular among   businessmen. Impartial   and   respected   businessmen   called  Mahajans  were requested  by   business   association   members  to   resolve   disputes  using   an   informal procedure, which combined mediation and arbitration.

Another form of early dispute resolution, used by one tribe to this day, is the use of panchas,  or  wise   persons   to   resolve   tribal   disputes.   Here,   disputing  members   of   a tribe meet with a pancha to present their grievances and to attempt to work out a settlement. If  that  is   unsuccessful,   the   dispute    is  submitted     to  a   public   forum attended  by   all  interested   members       of the    tribe.   After  considering     the  claims, defenses,   and   interests   of   the  tribe   in  great   detail,  the pancha  again   attempts   to settle the dispute. If settlement is not possible, the pancha renders a decision that is binding upon the parties. The pancha’s decision is made in accordance with the tribal law   as   well   as   the   long-range   interests   of  the   tribe   in   maintaining   harmony   and prosperity. All   proceedings   are   oral;   no   record   is   made   of   the   proceedings   or   the outcome.  Despite the lack of legal authority  or sanctions, such mediation processes were regularly used and commonly accepted by Indian disputants.[2]

A UNIQUE MEDIATION QUALITY FOR THE FUTURE: “SCALABILITY”

When I note the “scalability” of mediation, I mean one thing, which is that mediation is the only leading dispute resolution process (consider adjudication, administrative hearing, arbitration, mediation) where “some measure” of assistance can be offered. We can offer you 20 minutes or 2 hours or 2 days of mediation . . . it is “scalable.”

By contrast, if you are a court or agency and need to meet “due process” standards, one cannot offer “some measure of due process.”  And in arbitration, with the same adversarial model and disputants waiving their appeal rights, the stakes are often even greater. Severely expedited arbitration hearings are receiving harsh scrutiny in the marketplace these days. In contrast, with mediation, people don’t complain when they come to a voluntary settlement.

In contrast to the process requirements, time demands and stress of due process and arbitration hearings, mediation is rather remarkably flexible.  This was brought home to me recently when I taught an advanced mediation course and I had “court facilitators” that mediated with families for about 20 minutes on average; court-connected parenting mediators who mediated for about 2 hours on average; private sector mediators who would deal with all issues in a divorce and meet with couples on average 8-10 hours, and “settlement judges” who would meet with just the attorneys (clients in hall) for 15-30 minutes “mediating” a result in anticipation of a scheduled trial the following week.

This and other experiences have come to make me realize that mediation is the one process where we can offer “some measure” of negotiation assistance – So, a community or court mediator may say: “We’d love to provide 10 to 20 hours of mediation, really whatever it takes for you to reach your best agreement, but, in our program, unfortunately, we can only offer an hour . . . so why don’t we get going and see what the best is that we can do in an hour . ..”  In part, this is a reminder of the underfunded nature of court, agency and community mediation programs.  Perhaps even more important for the future, note this remarkable time flexibility (“scalability”) of the mediation process.[3]

The scalability and flexibility of mediation is also important in that assumptions about available mediation resources has a powerful impact on mediator style and strategy.  Simply put, the shorter the presumed available time for mediation, the more directive the mediator and mediation program tend to be (to get the job done).  If we have more time, or think about mediation time in different ways (for example more capably using the internet), we may also find that we as mediators can be less directive and more facilitative in helping disputants lead their own problem-solving.

THE ADAPTABILITY OF MEDIATION SERVICES

In thinking about the future, we would be remiss to not consider the remarkable flexibility of the mediation process and our ability to adapt mediation to new contexts in new and creative ways.

As an illustration, highly effective mass casualty claim mediation programs were developed in a short amount of time in response to hurricanes Katrina, Rita and Ike.  This is now a working model and we can expect bigger and better “mass disaster mediation” programs in the future.

Somewhat similarly, with the housing and economic crisis, we have the emergence of “foreclosure mediation” programs.  These programs are already established in approximately 20 states and the just completed U.S. Mayors Conference has called for foreclosure mediation in every state!

In these situations, because of the caseloads, cost and delay that would be involved, traditional legal and adversarial processes simply will not work.  What is needed is a measure of (sufficient) facilitative help and mediation has provided the answer.

As another example, we see the recent development of “Marital Mediation.”  Recognizing that conflict also exists even when couples decide to stay married, there is now a vibrant new service in the marketplace to provide couples with assistance in reaching and memorializing their agreements.  And I would guess that mediation for ongoing “non-traditional” relationships can not be far behind. Through commonsense and increasing awareness, mediation is spreading to nearly every nook and cranny of life. [4]

COMMUNICATION IN THE FUTURE

Thanks for bearing with me to this point.  If you have not jumped out of the boat yet, please do prepare to now get at least a little wet as we plunge over the edge.  I try to wrap my head around future communication and mediation issues on a daily basis, yet I consistently fail and underestimate how much things are changing.  So, I warn you that there is immediate and meaningful risk that we will now blow some of your mental circuits with the rest of this paper.  You are hereby duly warned and advised to not continue.

You renegade! Come brothers and sisters into the future with me. Remarkably and paradoxically, as we now look back, it was courts and agencies, driven by efficiency and economy concerns, that have driven dispute resolution online.  This began with online due process filings, motions and orders.  The there was the swift move to “the paperless courthouse.”  Discovery in now done online except by online judicial order. Hearings are now fast-tracked by asynchronous online video. The reasons for requiring warm bodies to be brought down the courthouse are becoming fewer and fewer. Excess courtrooms are being used for daycare and jail cells.

Mediation has also changed, sometimes overnight. I remember that the way that I mediate divorce changed overnight with the emergence of an online state child support guideline center complete with child support calculator and “what if” abilities participants can easily use.  Now, my first mission is to assist clients to find this location and work through their own calculations. And there is now a rather remarkable online parenting plan center, including all of the statutes, regulations, information about developmentally appropriate parenting, model parenting plan provisions (a shared knowledge base of what has worked for others) and more.  Overnight, the way that one reasonably and best mediates divorce changed.

Even today, without even thinking much about it, we commonly attach important documents to emails (draft provisions and agreements) for participants and attorney review. Many of us already use the Word feature called “track changes,” which is as effective a “one text document” technology as I can imagine.  By using of email, attachments and track changes, we are all “online mediators” as we assist participants and advisers to be actively involved in the drafting process.  And with Skype, we can discuss all these documents from the far reaches of the earth, with multiple participants, for free! Today!

There is also increasing recognition of the value of “asynchronous communication.” Easier to understand perhaps is “synchronous communication,” such as an in-person interview or phone call.  Asynchronous communication (think email or leaving a voice message that you can edit) means that the listener or viewer is not present in real time so, bottom line, we don’t have to necessarily get our communication perfect the first time.  We can edit our asynchronous messages until they are as good as they can be.  We can re-record our voice message.  We can size and crop our photo.  We can tweak our texts and instant messages until they are as perfect as we can make them, and then hit the send button when “we are at our best.”

We have long recognized the benefits of asynchronous communication in mediation.  This is perhaps the biggest reason we caucus with participants.  While we as mediator are synchronous with the individual party in caucus, the participants themselves (and their attorneys) are kept asynchronously at a distance.  This allows us to better discuss with each side in private their next contribution to the overall negotiation discussions.  Through caucus, we delay each side’s offer or response until that communication is as highly crafted and as likely to succeed as possible.  Asynchrony (think email, attachments, voice messages, web sites, texting, instant messaging) is the mediation industry’s new best friend (our best new friend since the word processor).  Asynchrony, allows everyone associated with the mediation, the mediator, participants and attorneys, to be at their best, as opposed to at their “first.”  Asynchrony allows us all to be more thoughtful, better informed and more effective in conflict resolution.

And Asynchrony and electronic communications may be what allows courts, agencies, private and community mediation to move beyond tense and expensive “single sit” crisis mediation hearings to more capable discussions over time.

For example, many participants in mediation really do not need their attorney there with them for 8 or 10 or 12 hours in a single day.  If we can more wisely structure our mediation efforts, integrating both face-to-face dialogue and electronic communications, we can offer far better mediation and dispute resolution services at a far lower cost.   My sense is that mediation will in time become as much an asynchronous process as a synchronous process and we will be freed from continuing worship of the single-sit mediation.  Our goal should perhaps be to flexibly and capably integrate face-to-face and electronic communications to provide best overall negotiation support.[5]

Also fascinating is how email addresses have become the most ubiquitous way of communicating.  A person is far more likely to have an email address than a street address. Just ask any homeless person. Even the poorest of the poor will generally have a free yahoo or hotmail or gmail account.  They can use library and other public web access to check their email, complete web information and to even have voice and video communication with the far reaches of the earth for free.  So, in terms of communication with the masses, what used to be “the digital divide” has become our “least common denominator” for communicating with adults in our society.

In sum, meditative dispute resolution is about to take off in part because of the costs, delay and stresses of litigation; in part because of the risk and controversy over institutionalized arbitration; in part because of the empowering qualities of mediation (voluntary, complete decision-making, confidential); all supported by such qualities as scalability, adaptability, asynchrony and nearly all of us now being “on the same computer.” These forces may combine to result in an explosion of mediation opportunities and also in the transformation of mediation communication and services.

MEDIATION IN YOUR POCKET

Unbelievably, all of the communication options we have discussed above are already available to many dispute resolution users, surely “power users” (lawyers, judges, arbitrators, mediators). Even more remarkably, it is all now available in our pockets and purses.

While I don’t want to get behind any particular product, and the marketplace is coming along quickly on new generations of “smartphones,” let’s use the iPhone as an example of how mediation services may come to be delivered in the future.  The iPhone.  OMG!  If someone described the capacities of the iPhone to you 10 years ago, they would have been put away for sure.

So, all of those communication modalities we have talked about so far: text, image, audio, video, are now right in your pocket.  Synchronous and asynchronous too.Of course.  Phone, email, web, music, camera, photos, weather, calculator, instant message, calendar, notes,  maps, timers, comnpass, skype, video, twitter revolutions and all . . . EVERYTHING and expanding.  If all this ever gets scary, just do the “Around Me App” on the iPhone and the phone will tell you what is around you (it can see better than you). And if you lose the phone, you can now go to your “cloud web site” and have the phone tell you exactly where it is.

Further, whereas a phone number used to be to a physical place, a phone number is now, most commonly, to a person (more accurately their pocket or purse). This “personalization of phone numbers” will surely change how we mediate.  It already has.  We can now text the client to see if this is a good time to talk.  Or we can text and say we have just sent an email with an attachment and links for them to review.  And all this is happening 365/24/7 on a global basis.[6]

More of my circuits are blown when we consider that certain disputes will (necessarily) be resolved exclusively online.  The largest dispute resolution system in the world is at eBay.  eBay has developed a really smart robot that resolves about 85% of their disputes (millions per year).  All of the domain disputes have been resolved online.  CyberSettle has developed a rather effective blind bidding process that is making them millions.  AAA, JAMS, ICC, WIPO . you name the international dispute resolution organization they are all now getting into the “online game.”  They see the future. They are not dumb.

Richard Susskind, lead technology consultant to the UK Courts, has described a number of the changes that are taking place in his recent book: The End of Lawyers?: Rethinking the Nature of Legal Services (2009),  A review of Susskind’s book describes:

“a world in which, at least in part, legal services are commoditized, IT renders conventional legal advice redundant, clients and lawyers are collaborators under the one virtual roof, disputes are dominated by technology if not avoided in the first place, and online systems and services compete with lawyers in providing access to the law and to justice.”

So, the first challenge is for face-to-face practitioners and processes to most capably integrate online and other electronic communication technologies.  They all fit in your pocket for gosh sakes.  There is also a different world when we mediate exclusively online.  In some of these circumstances, it even becomes a bit challenging to think in “geographic” terms in terms of jurisdiction, law, even professional licensing. If we are professionals operating online, in one place, but serving people in other states and countries, where are we practicing?  We may be moving to new concepts beyond traditional concepts of geographic jurisdiction to a new world of “Trusted Online Communities (TOCs) and “Digital Identities” to create trust and agreed-upon, predictable dispute resolution processes where a part of the ethos of the community may well include accountability for resolving conflicts.[7]

Again, perhaps most mind-boggling is that all of the technologies described are already here today.  The only barriers to growth and development are our own creative limitations.  While we may look with nostalgia at early romantic notions of face-to-face (synchronous) mediation, there have been some real problems with this model.  Let’s start with cost and access.  In many cases, the proper comparison for online mediation is not this romanticized idyllic mediation (as much time as it takes), but, more likely, no available or affordable mediation services at all.  The online environment is going to allow us to bring quality mediation assistance to the far reaches of our society and the globe. The online environment can bring mediation to people and situations that have never been able to access or afford any meaningful dispute resolution process.

ADDITIONAL LIKELY TRENDS: EMISSARY MEDIATION, EDUCATION & EMPOWERMENT; REAL TIME INVOLVEMENT

As dispute resolution moves more and more online, content submission (be it text, image, audio and/or video) will be more and more user driven (asynchronous, convenient, edited at best, generated without taxi meter running).  Missing will be the mediator’s acute ability to note non-verbal indications of acceptability and resistance.  The thing that is admittedly hard to do mediating online is what I call “simultaneous problem-solving.”  The communication systems just are not responsive and flexible enough for us to intervene effectively in real time. For describing process and sharing information with everyone, synchronous communication is great.  But, when it comes to the heavy negotiation lifting, my sense is that mediators will more and mnore come to serve as “emissaries” of well-considered offers and responses. Think Henry Kissinger and shuttle diplomacy. Their will be less simultaneous problem-solving and more asynchronous problem-solving.  I would not be surprised if online mediation increasingly has the mediator more proactively acting as diplomat and emissary.[8]

The online environment also uniquely offers us the ability to educate and empower participants about how to best participate in mediation (everything from technical suggestions to observations about communication options, suggestions for effective negotiation, etc.)  In fact, why settle for an ordinary education when the online environment allows us to do things for large numbers at the highest possible level.  The online environment also can serve as a base for “emergency” services as well as links to resources and shared situation-solution knowledge bases (what has worked for others in similar situations).

With all of these communication opportunities and mediation as the best concept since sliced bread, how can we not see the future of mediation as bright?  Soon we will have world class conflict resolution and mediation education and access to every desktop, laptop and smartphone. The online environment allows us to bring mediation to every pocket and purse. We are all now connected.

And just to be sure that all circuits are fully blown, our communication options may get to be so good that mediators will come to be part of live conflict situations  so that disputing ex-spouses may come to text a parenting mediator for real time help, or a construction mediator may help a contractor and sub-contractor resolve a matter by taking a shared tour of the construction while looking at and talking into their smartphones. For more on this topic of real time conflict involvement[9]

Mediation is not something new to India. Centuries before the British arrived, India had utilized a system called the Panchayat system, whereby respected village elders assisted in resolving community disputes. Such traditional mediation continues to beutilized even today in villages. Also, in pre-British India, mediation was popular among businessmen. Impartial and respected businessmen called Mahajans were requested by business association members to resolve disputes using an informal procedure, which combined mediation and arbitration. Another form of early dispute resolution, used by one tribe to this day, is the use of panchas, or wise persons to resolve tribal disputes. Here, disputing members of a tribe meet with a pancha to present their grievances and to attempt to work out asettlement. If that is unsuccessful, the dispute is submitted to a public forumattended by all interested members of the tribe. After considering the claims, defenses, and interests of the tribe in great detail, the pancha again attempts to settle the dispute. If settlement is not possible, the pancha renders a decision that isbinding upon the parties. The pancha’s decision is made in accordance with the tribal law as well as the long-range interests of the tribe in maintaining harmony and prosperity. All proceedings are oral; no record is made of the proceedings or theoutcome. Despite the lack of legal authority or sanctions, such mediation processes were regularly used and commonly accepted by Indian disputants. Mediation bears a striking resemblance, in some respects, to the ancient disputeresolution processes. In mediation the parties are encouraged to participate directly inthe process. The expanded framework of discussion in mediation consists of both the applicable law and the underlying interests of the parties. The mediator, an expert in the process of dispute resolution, controls the proceedings, much like a tribal chiefserving in the role of peacemaker. But under the ancient methods if mediation failed, the same person was authorized to render a binding decision. After the British adversarial system of litigation was followed in India, arbitration was accepted as the legalized ADR method and is still the most often utilized ADR method.Mediation (as is now understood globally and unlike the ancient methods, which is by definition non-binding, and encourages the parties to voluntarily reach an agreement that meets all the parties’ needs) has only in the past few years begun to become familiar to lawyers and judges generally, except in traditional community settings and except where mediation has been court-directed or statutorily-prescribed, such as inthe intra-governmental disputes between government agencies and undertakings, inlabor disputes and in public utility services disputes. So when we compare the US and Indian system, over the last twenty (20) years, American lawyers and judges have warmly embraced mediation as a primary tool for resolving conflicts in court and out of court, while Indian lawyers and judges are still warily examining mediation,discussing whether and in which types of cases mediation should be used – similar towhat was happening in the US in the 1980’s.

 

MEDIATION: ITS ORIGIN AND GROWTH IN INDIA

Mediation is no panacea, no magic solution to overcome the institutional challenges ofnational court systems. Similar to other alternative dispute resolution techniques,however, it does offer a cluster of features that differ from the formal judicial systems of Europe that have had global influence over the primary ways in which legalconflicts are resolved. In this regard, mediation both builds and diversifies the capacity for resolving conflicts in society. With many qualifications and exceptions, European-style courts are state institutions, conducting public, formal proceedings, that presuppose literacy, posture the parties in a conflictual, legal position-based, backward-looking fact finding processes that result in binary, win-lose remedies,subsequently enforced through social control over the losing party. In contrast, mediation and other clusters of consensual dispute resolution techniques, except for arbitration are private, informal, oral, more collaborative, facilitative, future-looking,interest-based processes that bring parties to a calibrated, multi-dimensional, win-winremedy that is more durable because of the parties consent in the outcome. Because of these basic contrasting features, for many non-European legal cultures,mediation bears a comforting alternative and similarity to traditional forms of dispute resolution that predate colonial influence. Reformers have grown increasinglyinterested in reviving or extending traditional forms of dispute resolution (such as the methods used by the traditional panchayats in India) and integrating them into theformal litigation system. Another dispute resolution process, lokadalat, has received more favorable attention since its re-introduction in the 1980s. Originally, lokadalat was an ancient method fordispute resolution used by tribal people. The Legal Services Authority Act (1987) promoted the resurgence of lokadalat to provide litigants with the means to resolve their disputes early and affordably. In essence, lokadalat may be compared to settlement conferences as they are traditionally conducted in the United States,except that the neutrals in lokadalat are senior members of the Bar. These lokadalat “judges” preside in panels over a lengthy calendar of cases that are set on a single day and are usually heard in open court (in the presence of other parties and attorneys). Customarily, lokadalat judges are highly evaluative from the outset ofeach hearing. Represented parties do not play an active role in presenting ornegotiating their dispute. Instead, attorneys advocate on their behalf. Importantly, litigants may participate in lokadalat without paying a fee, thereby making it accessible to parties with limited financial resources. Historically, lokadalat has been used primarily in personal injury cases and other injury claims involving insurance companies. Parties have the right to decide whether to submit their dispute to lokadalat. Because lokadalat has resulted in the disposition of a measurable number of disputes and is considered to be an effective and affordable alternative to trial, it will continue to be an important dispute resolution tool. The development of mediation in India holds enormous promise. In particular, the neutralizing communication skills and powerful bargaining strategies of facilitated negotiation can strengthen the system’s capacity to bring justice to the society. Despite the demonstrable value of these techniques, however, several large obstacles block the path to mediation in India. Exposure to these facilitated negotiationprocesses, though spreading rapidly, remains limited.II.

After the enactment of the Arbitration & Conciliation Act, 1996, even though conciliation was given statutory recognition for the first time in India, the awareness of such an option was very limited to lawyers and litigants. The term “conciliation” even though considered synonymous and used interchangeably with “mediation” inmost countries, was given a slight difference in the statute. The concept of mediation and conciliation was made familiar or given official court recognition only in 1996 and by the amendment of the Civil Procedure Code (CPC) in1999 by inserting Section 89. The statutory language of the Arbitration and Conciliation Act, 1996 and of Section 89 of the Civil Procedure Code, demonstrates clearly the existence of differing definitions and meanings for “conciliation” and “mediation”. Generally both mediation and conciliation is the assistance of disputants by an impartial third party in resolving disputes by mutual agreement. However, a conciliator can be a pro-active andinterventionist, because of his statutory power “to make proposals for settlement ofthe dispute” and to formulate and reformulate the terms of the settlement agreement. The definition of “conciliator” in the statute is consistent with Rules for Conciliationpromulgated by the United Nations Commission on International Trade Law (UNCITRAL). B. C OURTS In 1994-95, the Indian Supreme Court initiated an Indo-US exchange of information between high-ranking members of the judiciary. As part of this effort, former IndianSupreme Court Chief Justice A.M. Ahmadi met with US Supreme Court Justices RuthBader Ginsburg and Antonin Scalia. Another integral member of the US team wasthen Chief Judge J. Clifford Wallace, of the 9th US Circuit Court of Appeals. In 1996, Ahmadi formed a national study team to examine case management and dispute resolution as part of a joint project with the United States. This Indo-US studygroup suggested procedural reforms, including legislative changes that authorized theuse of mediation. New procedural provisions eventually were enacted in 2002, providing for case management and the mandatory reference of cases to alternative dispute resolution, including mediation (Code of Civil Procedure Section 89).Even though the Arbitration & Conciliation Act, 1996 was enacted to give impetus toconciliation and giving statutory recognition to conciliated settlements, giving the same status of a court decree for its execution, no real effort was taken by the courtsor by the lawyers to utilize the provisions and encourage the litigants to choose themethod. Even though some mediation training and familiarization programs were conducted it did not create the real effect. The amendment of the CPC referring pending court matters to ADR was not welcomed by a group of lawyers and the amendment was challenged. The modalities to beformulated for effective implementation of Sec. 89 also came under scrutiny. For this purpose, a Committee headed by former Judge of the Supreme Court and Chairman of the Law Commission of India, Justice M. Jagannadha Rao, was constituted to ensure that the amendments become effective and result in quick dispensation ofjustice. The Committee filed its report and it was accepted and the Hon’ble Supreme Court of India has pronounced a landmark decision “Salem Advocate Bar Association, Tamil Nadu v. Union of India” (2005), where it held that reference to mediation, conciliation and arbitration are mandatory for court matters. This judgment of theSupreme Court of India will be the real turning point for the development of mediation in India. But the growth of mediation should be carefully moulded so that the system gains the faith and recognition of the litigants.[10]

CONCLUSION

In the United States, lawyers and the local and state bar associations, as well as the American Bar Association and the Federal Bar Association, were as enthusiastic as thejudges in their promotion and utilization of mediation. American lawyers understood that the legal system was overloaded and on the point of collapse from the courts being wrongly utilized for disputes that could be better and more efficiently handled by mediation and other ADR procedures. By the mid-1980’s, lawyers and State BarAssociations had professionalized mediation in the US, by developing mediator training standards, by providing lawyer training in mediation and by prescribing ethical standards for lawyers when acting as mediators and when acting as advocates in mediation. As a result, trained lawyer mediators made mediation a substantial partof their law practice. By responding positively and emphatically to incorporate mediation as a welcome and useful ADR tool in the American legal system, lawyers have not lost business to mediation, but have rather become ensconced as mediatorsand as the gatekeepers for mediation in the US legal systems. In the US, although lawyers initially felt threatened by mediation and resisted it as an unwanted change inthe status quo, the lawyers quickly realized that mediation was just another tool intheir lawyer tool bag. In India, while judges have been quick to recognize increased use of mediation as a helpful mechanism for reducing case backlogs and delays, Indian lawyers have not rushed to embrace mediation. As with American lawyers in the early 1980’s, Indian lawyers are conservative. They do not like change and are reluctant to expose theirclients to the uncertain risks of an unknown ADR process. Also, understandably, Indian lawyers view mediation as potentially depriving them of income by settlingcases prematurely and thereby obviating legal fees that would otherwise be earned. The same has been true for American lawyers during the growth of mediation in theUS over the last twenty (20) years. In the first place, by their early acceptance and use of mediation, lawyers became not only the best trained and most qualified mediators (incorporating their mediator work into their law practices), but the lawyerswho did not become mediators became the gatekeepers for mediation, selecting over 80% of the cases that are mediated and choosing the mediators for such cases.Private litigants, too, may harbor anxiety about mediation as an alternative to thecourt system. Fearful of exploitation, distrustful of private proceedings, comforted by the familiarity of the court system, insecure about making decisions about their own interests, or interested in vexatious litigation or in delaying the case for economicreasons, some litigants may prefer the lawyer-dominated, public, formal, and evaluative judicial process. These impressions are inaccurate for a variety of reasons. First, mediation will notfrustrate the preferences of such litigants; indeed, their right to trial will bepreserved. An effective mediation process can quickly allay these fears. Litigants involved in the process are much less likely to be exploited. They will quickly understand that the mediator has no power or social control over them or their resolution of the dispute. Second, effective facilitators will gain their trust over time.Third, if the parties still feel the need for an evaluation of the legal issues, the mediation can be accordingly designed to deliver that service. At times, litigants canbetter save face with members of their family, community, or organization, if they can cast responsibility for the result on a neutral third party, and for this group, a strongevaluative process may be appropriate. Surveys of litigants find that mediationreceives the highest satisfaction ratings of any dispute resolution process[11]

Author
Sanskriti Singh
BBA – LLB
UPES, Dehradun

[1]Agardy, Peter (2009), ‘Mediation and the insolvency practitioner,’ Insolvency Law Journal, Thomson Reuters, Vol 17. No.3, September, Pages 135-146

[2]Xavier, Anil,’ Mediation : Its Origin and Growth in India, Hamline Journal of Public Law & Policy Volume 27

[3]Bamber&et. al. 2000, p. 43

[4]Schellenberg, Parks-Savage &Rehfuss 2007 The program’s creator is Dr. Rita Schellenberg, counselor educator, counselor supervisor, and licensed school counselor.

[5]To assist parties in preparing for commercial mediations, particularly in cross-border disputes where there can be very different understandings of the word “mediation” and the mediation process, the International Mediation Institutehas posted an online evaluation form (called OLE!), which is designed to be used by parties working together with their counsel. “International Mediation Institute OLE! evaluation form”. Retrieved 18 March 2013

[6]Zutter, Deborah. Preliminary Mediation Practices. Bond University, Australia:Unpublished Thesis, 2004.

[7]Simkin, W. E., (1971); Mediation and the Dynamics of Collective Bargaining; Bureau of National Affairs Books, Washington DC, ISBN 0-87179-127-7

 [9]http://www.mediate.com/articles/on_mediation_in_the_future.cfm, last checked on 18th March 2013

[10]Nelson, Lisa. “What is A Divorce Mediator”Mediation Blog. Lisa Nelson. Retrieved 29 July 2012.

[11]http://www.eternalalliances.com/mediation/benefits-of-mediation

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