“It’s not enough to be non-racist”

“It’s not enough to be non-racist”

“Conversation: Breakthrough or Breakdown? Visions for a New Future”

From a Reflective Practice perspective, here are 3 talking points that stood out for me.

The empathy I gave him disarmed him”  Jo Berry

This quote is in reference to her meeting with the bomber who took out her father. A powerful move which I reckon made her feel more “in-charge” of her self, while sitting across the man who had hurt her. I said to him, “I can hear your story and empathise with you. I many not agre with anything (or everything) you say, but I am keen on understanding your perspective”. This works as a great illustration in expressing empathy. As mediators, sometimes we find it difficult to encourage parties to feel and express empathy. May be, this could work as an example.

Unless we deal with the trauma (of our childhood), we pass it on to future generations” Scilla Elworthy 

We are dealing with personal trauma, collective trauma and ancestral trauma. Most of our reactions towards world events right now reflects on our past experiences and very little on our present” Liz Rivers

This is very interesting considering that as mediators we too bring a lot of emotional and psychological baggage to the mediation table. Memories we have experienced or gathered from hearsay shape our opinions of people around us. Scilla went to say that is “incumbent” upon us to retrospectively reflect on these not-so-pleasant experiences and address them internally. I find value in this suggestion of spending time in reflection, especially for those of us who spend a lot of time interacting with people of diverse backgrounds, to find out our trigger points – words or pictures or noises that recreate that unhappy feeling. As mediators, it can give us a clearer context of others’ perspective and also keep our own biases in check – and not surprise ourselves by reacting inappropriately to sensitive moments in a mediation.

It’s not enough to claim that you are non-racist and say you are peaceful. We must stand up against what’s wrong and speak about itJo Berry.

This has been on my mind over the past few months – does the mediator speak his / her mind on issues that concern the community? It sometimes feels like morality vs neutrality – or is it? Do we really lose our neutrality, as mediators, by condemning actions and words that propagate hatred, fear and violence? What does it say about us if we don’t have an opinion on someone publicly condoning racism, religious vengeance or sexism? Is it enough that you are a “nice” person? Does that make the world a better place to live in? Reflect…

————————————————- CREDITS ———————————————–

Hosted by: Core Solutions and Collaborative Scotland.

Moderated by: John Sturrock QC

Guest Conversationalists: Scilla Elworthy, Jo Berry and Liz Rivers

Scilla Elworthy, the distinguished peace campaigner, three times nominee for the Nobel Peace Prize and adviser to Archbishop Desmond Tutu and Sir Richard Branson in setting up ‘The Elders’;

Jo Berry, international peacebuilder and founder of Building Bridges for Peace, whose father, Sir Antony Berry MP, was killed in the Brighton hotel bombing in 1984; and

Liz Rivers, women’s leadership advocate, the UK’s first female commercial mediator and Rights of Nature activist.Agreement

Commercial Mediation – Virtually Viable

Commercial Mediation – Virtually Viable

Moderated and hosted by: Raj Panchmatia, Partner – Khaitan & Co.

A fantastic, past-paced, crisply moderated webinar on Commercial Mediation highlighted some very interesting talking points. In my opinion, these stood out:

  1. What does Commercial Mediation mean to you?

If dispute is a failed negotiation, then Mediation is a scientific process to help people negotiate again – Ms. Laila Ollapally

There exist various constructs of the definition of mediation, but this is an honest acknowledgement of the fact that parties may have tried to fix things themselves, before reaching out to a neutral for assistance. This explanation is respectful of early signs of collaborative behaviour, which is very often the status quo in commercial disputes.

2) What’s in for commercial disputes in the Mediation Bill…

People shouldn’t have to go to court to file a complaint and then be referred to mediation. This legislation (the proposed Mediation Bill) hopes to bring together scattered references of mediation from differnet legislations in India, improve on these mentions and design a law that makes sense to the mediator, the lawyer and the user – Mr. Sriram Panchu 

The proposed Mediation legislation is expected to give private mediation the much-needed push and while that brings hope to the profession, it is also heartening to know that the drafting committee has taken into account the various stakeholders in a mediation.

3) A memorable commercial mediation…

I once mediated a counterfeiting case, where the court had passed an interim injunction. It was a clear case that the plaintiff would have won in court. The defendants would have lost everything in damages, also leaving hundreds unemployed. Instead, the multi-national company got the counterfeiting company to be the supplier of their fabrication – because the counterfeiting company made a quality product at a cheaper rate – Justice A K Sikri

We have always advertised mediation as a creative solution-generating process and this opportunity to look beyond the crime and explore collaboration would have been lost to litigation as the focus in an adversarial setting is to obtain justice for the “righteous” and punishment for the “wrong-doer”.

4) Why Commercial Mediation is virtually viable…

The virtual world favours mediation. Within a few minutes you can get in and resolve a conflict before it blows out into a dispute. Virutal mediation is very effective from a logistical point of view – with no travel or venue concerns, you can convene a session within minutes. We recently put together a mediation within hours, with parties living in multiple time zones. Also, look out for Hybrid Mediation. The trend of parties being beamed into the conference room virtually, while the lawyers attend in person is also catching up in Singapore. – Mr.Chuan Wee Meng 

Hybrid Mediation makes perfect sense for highly charged and emotionally tense commercial mediations wherein the parties have had a public spat but cannot afford for the dispute to escalate any further. With high stakes on finances and reputation, mediation works best.

5) Pre-mediation is key in commercial disputes…

Virtual mediation helps us expand accessibility. You can bring people to the screen who might have not have been able to travel to a physical setting. It is important to spend quality time in pre-mediation. The actual joint discussion are shorter sessions keeping in mind the parties’ attention span. The objective of the virtual sessions must be well planned out and mediators must invest time in structuring the process for it to be productive. It’s also a great opportunity to get the lawyers involved in structuring the virtual session. – Ms. Laila Ollapally

Users investing into an online / virtual mediation session must experience every unit of money spent, and therefore a mediator’s role begins much before the core issues are discussed. More than the money spent, the nuances of the virtual space give little room for mediators to hesitate or space out in their role and therefore keeping discussions focussed is an important tool in maintaining attention levels across the screen.

6) The future of commercial mediation…

Users will drive mediation. Courts will clamp down on commercial cases. At some point, courts will say, “We are not here to help you out when you can help yourselves”- with penalties for refusal to mediate – Mr. Sriram Panchu

He said it. Now, we got to make it happen. Commercial mediation works, and moving into the virtual world only makes it safer, efficient and budget-friendly.

(This is an opinion post and doesn’t necessarily conform with the thoughts and ideas of the speakers on the webinar panel)

A fond farewell, not a goodbye…

A fond farewell, not a goodbye…

After nearly 5 years at The PACT, I feel it’s time for me to step aside and pass the baton to new leadership, fresh ideas and may be, even a new direction.

Starting shortly, I will not be involved – creatively and administratively – with the team’s operations, as I begin a different challenge soon. 

To everyone who believed in me and joined along in celebrating Mediation and Conflict Resolution via The PACT – I remain grateful, always. 

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Goa Institute of Management (2015) – The first Mediation talk

It isn’t easy to travel the road less travelled, to explore Mediation from a perspective beyond law and introduce a reflective approach to conflict resolution. I persevered, because I had a fantastic group of peers and mentors along the way – you know who you are – who whispered constructive criticism and shouted praises, whenever I needed them the most. You will always remain a part of this chapter of my mediation journey. 

My relationship with The PACT will go on through the friendships and working relationships I have built over the last few years – and when the world starts spinning around again, I hope we can all meet for a fun reunion by the beach in Goa! 

I would never abandon what I created, and at the same time, I couldn’t be selfish to not let go. Nothing that we have collectively achieved at The PACT matters more than the sheer thrill of conceptualising a project, announcing it to the world and then working sleepless nights to watch it come to life.

Nisshant Laroia took over from where Gracious Timothy left a few years ago, and together we travelled the length and breadth of India pursuing our mission. Nisshant is now surrounded by talented and resourceful personalities who will together fill in for my responsibilities and breathe renewed energy and purpose to The PACT. 

Fort Cochin (2015) – A bike ride after my first acquaintance with Mediation.

The PACT was created as a simple, yet ambitious idea to provide a platform for young students to explore Mediation and other allied forms Conflict Resolution. The PACT belongs to everyone who has been a part of this idea since its inception. When people called us “over-ambitious”, we just knew we had to get “over” the pessimism and focus on our strengths. Success is subjective and contingent to the reasonability of the goals you set and I can proudly say that we always chased every dream successfully.

Despite the odds, we prevailed – because of the combined efforts of each person who has joined us at workshops, trainings, boot camps, lectures, conferences, competitions, or the simple food tours we had in your city. The PACT is a dream we all keep alive by continuing to contribute to its projects – to create ambassadors of Mediation that will choose dialogue to resolve disputes. 

To the thousands of students and professionals I have met on the journey, my email address domain may now change for business purposes; but the person signing off the mails will still be me. Got Mediation on your mind? Drop in a line. 

It breaks my heart to call it a day, but I promise, I will be a call away. I will remain an ardent supporter, a committed follower and firm believer in all things The PACT sets to achieve from here on. I’ll be watching, I’ll be around. 

Continue following your fire. Continue chasing your dreams. Continue believing in yourself. Do what thrills you, while you are alive – cause nothin’ else really matters. 

State-sponsored Mediation: What Interests Does It Serve?

State-sponsored Mediation: What Interests Does It Serve?

By Jonathan Rodrigues[1]

Does it profit us to shift our burden to other agencies and institutions, while we make impossible the burdens on those who must deal with those agencies and institutions?[2]

Drawing inspiration from Elizabeth Thornberg’s writing, it may be posited that the wonders of a mediation process – privacy, party autonomy, voluntariness, neutrality – are remedial of the horrors of litigation. Any compromise on these key features raise doubts of whether the sponsor of mediation has an underlying interest in the resolution.

Mediation is one among many alternatives to the traditional court system, and remains a primary focus in evaluating the government’s influence in state-sponsored ADR (Alternative Dispute Resolution), as mediation has evolved into an integral part of the legal system, used to resolve, both, civil[3]and public law matters involving the state.

When promoted and mandated by courts, government agencies and corporations, disputants must know what to expect at a mediation,[4]as there is concern that disputants may undervalue the government’s inherent conflict of interest in state-funded ADR[5]. Critics argue that citizens may not realize that mediation is only a “linear” option to litigation, and if the offer on the table is not satisfying, disputants can still have “recourse to sovereign judicial power as the dispute-solving entity”. [6]

Court-referred or court-annexed mediation, which is state-sponsored, has grown popular in many jurisdictions, and the styles, skills, mannerisms and professional ethics that lend credibility to mediation as a process, are influenced by the needs and expectations of legal professionals who dominate court-connected mediation. [7]  Whether it be making family and civil mediation mandatory to decongest courtrooms or directly involving themselves in shaping mediated outcomes, mediation programs have evolved largely to reflect the needs and preferences of judges and attorneys.[8]

Globally, state-funded ADR has had mixed responses with regard to its implementation and acceptance by the public. The German Civil Procedure Rules initially required judges to offer disputants the opportunity to settle at a Gütevehandlung (conciliation hearing), which is conducted by the same judge, who will also hear and adjudicate the case, if not settled. But, as Judge Pia Mahlstedt explains, the German Mediation Act restored neutrality to the process by now having judges refer cases to a second ‘Güterichter’ or mediator judge. [9]With judges acting as sole mediators in the French system, critics have suggested referral of court cases to professional mediators [10]not connected to the courtroom, to assure neutrality and attract more litigants to mediate in administrative cases.

The effective Ombudsmen services in the Netherlands has led to unwillingness among citizens to go to court to resolve administrative disputes, but mandatory court mediation has worked successfully “…in employment disputes between government employers and their civil servants”. [11]In Norway, the Disputes Act clearly defines the ‘neutral’ role of the courts in mediation related to administrative cases, and safeguards the “party autonomy” feature of mediation by stating that “…the court shall not present proposals for a solution or advice or express points of view that may weaken the impartiality of the court”[12]

While the Australian government has made a commitment to promoting and engaging in ADR processes when it is itself a party to a dispute,[13]the Indian government, in a progressive move, recently made amendments to a legislation to include mediation,[14]albeit serious doubts about the “closing report” in case of non-settlement, which raises breaches the value of privacy, considering that the government could be party to many disputes. This goes against a landmark Delhi HC judgment stating that the “Mediator’s report should only enumerate the report of failure, preferably in one sentence and nothing more”.[15]

Diverting from mediation, the Lok Adalats[16]in India are a perfect example of how state-funded ADR can directly represent the “political manoeuvring”[17]that takes place in higher courts. Between disputants and the state, there are often the middlemen, who dominate Lok Adalats and decide what cases can be settled, and then influence the provisions of the settlement, after considering the interests and goals of the state.[18]

Back in Europe, nations tussle with the idea of compulsive ADR, with the Romanian Civil Procedure Code amended in 2010 to introduce mandatory “conciliation” of all civil cases; while the Alternative Legal Dispute Resolution Act directs Slovenian courts to offer mediation as a quasi-compulsory procedure with an opt-out. [19]Compelling people to participate in mediation[20]by a court order only leads to distrust among citizens about the many available ADR services.

Amusingly, in many jurisdictions across the globe, voluntary schemes end up being a trap to force people to participate so as to not miss out on claiming back their court costs.[21]In England, contradictory precedents were set out regarding adherence to mandatory court mediation, where a party was penalised by the courts for ignoring an offer to mediate[22], but in another case, a court held that no party can be forced to mediate [23]

Besides the courts, government agencies have also introduced in-built ADR mechanisms to resolve disputes. The USPS (United States Postal Service) mediation program titled ‘Resolve Employment Disputes, Reach Equitable Solutions Swiftly’ (REDRESS), which was initiated in 1994 as part of its settlement of a racial discrimination class action [24] is an example of how the mediation scheme was designed to suit the needs of the sponsor, but also carefully crafted to appeal to the disputing citizens.

Under the guise of improving relationships and communication channels,[25] the USPS made the program voluntary for its employees, but mandatory for their own personnel, thus aiming to erase all formal Equal Employment Opportunity (EEO) complaints. To avoid being labelled as  a ‘trap for coerced settlements’, the USPS adopted a model of mediation that specifically excluded mediator evaluation. This, in a way, assured neutrality, as the USPS didn’t get to bully its employees, via mediation, about its 95% success rate in EEO complaints filed against itself and intimidate the complainants that they had no case. The mediation scheme would have not succeeded with threats.[26]

Given mediation’s privacy policy, in the USPS scheme, the personnel who had defaulted would conveniently escape being identified and publicly shamed. Thus, state-funded mediation may provide a protective cover for repeat offenders in the name of a settlement as punitive action is rarely implemented against repeat offenders.[27]Use of state-funded mediation services“… poses the risk of invisibility and important community interests and tenuous rights hard won ‘could fade from the public agenda’[28]and this could ruin an opportunity for correctional change. However, that doesn’t bother the agencies, who look at it as a “win-win-win-win” for employees, employers, the judicial system and the complaints committee, who don’t need to get their hands dirty in a formal inquiry.[29]

And if nine out of 10 parties (both public bodies and private citizens) report a high level of satisfaction[30], the state would argue – should their personal justice be substituted for the need for public trial? However, with the EEOC granting a 60-day mediation window, the government agencies could use mediation in bad faith as an opportunity for a quick and cheap investigation. [31]Then again, is it the mediation service provider’s role to seek mutual resolution in state versus citizen disputes or filter which cases are suited for mediation? [32]

Since 2001, the UK government has pushed towards ADR for administrative justice, especially in terms of special education needs (SEN) mediation, where local authorities were to implement independent mediation schemes to resolve disputes between parents and themselves. However, this idea of  “party empowerment” without legal advice led to many parents skipping mediation services for fear of being overpowered by force that was socially, legally and financially more superior [33]and, even if they tried mediation, might have agreed to an offer which underestimates the strengths of their legal positions.

This rushed settlement would have haunted the parents in hindsight, which probably explains why even as 51 per cent of the SEN cases were settled, only one-third of the parents said they would use mediation again.[34]The lack of an authority figure in the agreement and the confidential nature of the process allows the state to misuse the ADR process, leaving parents feeling helpless and duped, after thinking they had contributed and crafted a mutually agreed-upon resolution, only to be let down by the school failing to implement the settlement.[35]

Court-connected ADR has the potential to empower citizens to participate in the democratic dealings, but it can also be a limitation, and muzzle the progress of democracy.[36]If the wonders of mediation are religiously practised and promoted, state-funded ADR will cement its credibility in civil society. Mediation may privatise justice, but is still the better evil compared to no justice at all.

FOOTNOTES: 

[1]Jonathan Rodrigues is a Mediator based in India. This essay was written and submitted as part of the coursework for his LL.M. studies in Mediation and Conflict Resolution, at the University of Strathclyde, Glasgow, UK, 2019-2020.

[2]A. Leon Higginbotham at the Global Pound Conference, 1976.

[3]Elizabeth Plapinger and Donna Steinstra,  ADR and Settlement in the Federal District Courts: A sourcebook for judges and lawyers 4(1996).

[4]Bobbi McAdoo, A Report to the Minnesota Supreme Court: The Impact of Rule 114 on Civil Litigation Practice in Minnesota. HAMLINE L. REV. 401, 406 (2002)

[5]Elizabeth Thornberg. Reaping what we sow: anti-litigation rhetoric, limited budgets, and declining support for civil courts. Civil Justice Quarterly Vol 30, 1, 74-92 (2011)

[6]Laurence Street, ‘The Court System and Alternative Dispute Resolution Procedures’(1990) 1(1) Australian Dispute Resolution Journal 5, 9

[7]Nancy Welsh, Stepping back through the looking glass: Real conversations with real disputants about institutionalized mediation and its value. Ohio State Journal on Dispute Resolution. Vol. 19:2 (2004)

[8]Nancy A. Burrell et al., The Impact of Disputants’ Expectations on Mediation: Testing an Interventionist Model, 17 HuM. COMM. RES. 104, 108-09 (1990)

[9]Greg Bond,The German Mediation Act Five Years On: The Perspective of Two Judge Mediators, Kluwer Mediation Blog, (2017).

[10]Boyron, S.Mediation in administrative law: the identification of conflicting paradigms. European Public Law, 13(2): 263. (2007)

[11]see de Roo and Jagtenberg, (2002:144), Trevor Buck. European methods of administrative law redress: Netherlands, Norway and Germany, DCA Research Series 2/04, November 2004.

[12]see § 7-2 Mediation (Draft) Disputes Act. Trevor Buck (2004)

[13]Kathy Mack, Court Referral to ADR: Criteria and Research, Australian Institute of Judicial Administration Incorporated and the National Dispute Resolution Advisory Council, 2003

[14]Section 80 (3), Chapter V, Consumer Protection Bill 2019 (India)

[15]https://www.vakilno1.com/legal-news/delhi-hc-confidentiality-mediation-proceedings.html

[16]https://nalsa.gov.in/lok-adalat

[17]Moog, Robert S. “Conflict and Compromise: The Politics of Lok Adalats in Varanasi District.” Law & Society Review, vol. 25, no. 3, 1991, pp. 545–569. JSTOR, http://www.jstor.org/stable/3053726

[18]Moog, Robert S. n 33

[19]Iain Drummond, “Should Mediation be Mandatory?”,Lexology, 2013.

[20]Section 24 of the Tribunals, Courts and Enforcement Act 2007, United Kingdom.

[21]Cowl and Others v Plymouth City Council, Time Law Reports, January 8 2002.

[22]Burchell v Bullard and others, CA 8 April 2005

[23]Halsey v Milton Keynes General NHS Trust ETC: 11 May 2004

[24]James R. Antes et al., Transforming Conflict Interactionsin the Workplace: Documented Effects of the USPS REDRESS (TM) Program, 18 HOFSTRA LAB. & EMP. L.J. 429, 429 (2001)

[25]Nancy Welsh, n6

[26]Genn et al, Twisting arms: court referred and court linked mediation under judicial pressure,Ministry of Justice Research Series 1/07 (2007)

[27]Mary-Jane Ierodiaconou Conciliation, Mediation and Federal Human Rights Complaints: Are Rights Compromised?University of Melbourne (2005)

[28]Andrea Durbach, ‘Test Case Mediation – Privatising the Public Interest’(1995) 6(4) Alternative Dispute Resolution Journal 233, 235

[29]Matt A. Mayer, Use of Mediation in Employment Discrimination Cases, The, 1999 J. Disp. Resol. (1999)

[30]Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia(1991) 164- 165

[31]Lois A. Baar &MichaelA. Zody, Resolution Conferences Conducted bythe Utah Anti- Discrimination Division: TheElements of a Successful Administrative Mediation Program,21 J. CONTEMP. L. 21,39 (1995).

[32]Richardson, Genevra ; Genn, Hazel.  Tribunals in transition: resolution or adjudication?.In: PUBLIC LAW. 2007 ; Vol. 01. pp. 116 – 141

[33]Nancy Welsh, n 6

[34]Schrag, F. (2004). Children and democracy: theory & policy. Politics, Philosophy & Economics3(3)

[35]Nowell and Salem, The Impact of Special Education Mediation on Parent School Relationships: Parents’ Perspective. Remedial and Special Education 28(5):304-315, 2007

[36]Bobbi McAdoo & Nancy A. Welsh, Look Before You Leap and Keep on Looking: Lessons from the Institutionalization of Court-Connected Mediation,5 Nevada L.J. 399 (2005).

REFERENCES:

  • Carrie Menkel-Meadow (2000) ‘Mothers and Fathers of Invention: The Intellectual Founders of ADR’16Ohio State Journal on Dispute Resolution (1) 1-37
  • Cohen, Amy J. “Revisiting Against Settlement: Some Reflections on Dispute Resolution and Public Values”, 78 Fordham Law Review 1143 (2009);
  • Hazel Genn (2012) ‘What is civil justice for? Reform, ADR, and access to justice’Yale Journal of Law and the Humanities, 24 (1) 397–417.
  • Mary-Jane Ierodiaconou (2005) ‘Conciliation, Mediation and Federal Human Rights Complaints: Are Rights Compromised?’University of Melbourne Legal Studies Research Paper No. 113.
  • Nancy A Welsh (2004) ‘Stepping back through the looking glass: conversations with real disputants about institutionalized mediation and its value.’Ohio State Journal on Dispute Resolution, vol. 19, no. 2,
  • Nancy Welsh(2002) ‘Making Deals in Court-Connected Mediation: What’s Justice Got to Do With It?’ 79 Washington University Law Quarterly 787-861 (Very long article – apologies!  Sections II and III, pp. 817-837, are the most useful)
  • Neville Harris, Sheila Riddell and Emily Smith (2008) ‘Special Educational Needs (England) and Additional Support Needs (Scotland) Dispute Resolution Project, Working Paper 1: Literature Review’ University of Manchester,

 

Agree to Disagree: A listening ear to mediation critics

Agree to Disagree: A listening ear to mediation critics

By Jonathan Rodrigues[1]

 

By listening we will understand who we are in this holy realm of words.

Do not parade, pleased with yourself.

You must speak in the language of justice.[2]

Joy Harjo’s poetic verse reminds us, preachers and practitioners of mediation, that there is nothing to lose in keeping an attentive ear to critics, as it can inspire a better understanding of ‘why’we do ‘what’ we do. Effective and ethical practice depends as much on how mediators think about, as how they perform, their role and function.[3]

Much has been written about negotiation performed “in the  shadow of the law”[4], problem-solving processes boosting power imbalances[5], and informal justice mechanisms using consent and concern to conceal coercion[6]– all subjective, yet well-researched opinions; and therefore accepted in an unabashed spirit. This essay aims to look beyond the identity crisis fuelled by mediation non-believers, who have condemned the process as an oppressive mechanism[7], and highlight that silver lining – of hope – in the practice of mediation.

Robert Bush and Joseph Folger suggests that mediation empowers people to find “closure” and “move on” from conflicting moments, while John Winslade and Gerald Monk propose “deconstruction of conflict-saturated stories” and “construction of alternative stories” to resolve disputes. If mediation is that “process that works as a human  bridge between justice and peace”[8]it is almost obvious that the critics will strike at the unique core – the four pillars of mediation[9]– that characterise the uniqueness of the process.

Intentionally ducking the popular critics, this essay will explore confidentiality, neutrality and autonomy, using non-traditional themes to absorb criticism of its limitations and articulate confidence in its value. Critics have reservations about discussions behind closed doors – what parties say or don’t say, and what mediators say or don’t say – that make them distrust the process. These suspicions can be empathised with, but they aren’t necessarily the truth.

Spoken Untruths, Unspoken Lies – Mediator’s role (Neutrality)

Critics argue that ill-informed litigants are delusional in thinking that settling out of court allows them to substitute private contract for law[10], when the reality is – the law relevant to the dispute affects settlement as parties with a stronger case can demand more to settle privately. This underlines the mediation lawyer’s role – to evaluate potential legal remedies, costs and risks associated with adjudication, before determining the party’s reservation point[11](point beyond which a party won’t compromise) in the bargaining process. With or without legal counsel, Russell Korobkin exposes the dark side of a confidential settlement.

False statements made at mediation can create bargaining power imbalances as it changes the opponent’s perception of  – their own substantive legal entitlements and the speaker’s preference for adjudication as compared to settlement, leading the opponent to offer a higher settlement price than she otherwise would. With lawyers considering “deception . . . the spirit of negotiation,”[12]and some scholars arguing that the capacity to mislead is the mark of a successful negotiator,[13]where does the mediator draw the line on confidentiality and neutrality? Is the mediator expected to advise against it or take a step further and terminate the mediation, if deception is influencing the settlement?

The laws of contract, tort, and professional responsibility proscribe some affirmative misrepresentations made in the course of bargaining—subjecting the perpetrator to rescission of a resulting agreement and reinstatement of the original lawsuit, a damage award,[14]or professional sanctions, but for a false statement to be actionable it must be “material” and lead to “justified” reliance by the listener.[15]Lawyers may be subject to professional discipline for false statements that are material even if the listening party does not rely on their veracity.[16]However, can a lawyer be liable for lying about the client’s reservation point or lack of authority to settle to buy time?[17]

Alternatively, disputants have no general duty to disclose information voluntarily to their negotiation counterparts, although some courts have found actionable nondisclosure when a party’s failure to provide truthful information induces a false belief on the part of the adversary, even when the party has not provided any information likely to create the false impression.[18] Courts have rescinded settlement agreements based on the doctrine of unilateral mistake when one party knows that the other party is mistaken as to a material fact but makes no effort to intervene.[19] With laws letting absolute privilege for statements made in mediation,[20]where evidence of deceit in mediation cannot be introduced in court; the mediator must be responsible for not letting the atmosphere of trust and confidentiality be abused by deceptive negotiation strategies.

Having personally romanticized mediation as “a place beyond right and wrong, exclusively built for your privacy…,” I realise the societal standpoint in terms of the agreement reflecting cultural notions of justice, beyond mutual consent [21]was conveniently overlooked in my mediation vocabulary.

The myth of being heard – A Feminist Perspective (Autonomy)

Trina Grillo isn’t convinced that mediation provides a just or humane alternative to litigation, while other critics believe mandatory mediation is destructive to many women and some men[22]as well. Politely calling bluff on mediation’s sacred principles of informality and empowerment, she denounces the process imposing a canon of mannerisms – how to speak, make decisions, behave in tense moments – about appropriate conduct, which often excludes the possibility of participants speaking with their authentic voices. [23]

Terming the self-determined decision-making privilege “purely illusory”, Grillo points out that parties have no say in their own participation, their lawyer’s participation, and are not permitted to choose the mediator[24]. She expresses bigger concerns of neutrality and confidentiality with regard to mandatory mediation in California, and with private communications between parties and mediator protected by Evidence Code[25], Grillo doubts if leaving the decision of inclusion or exclusion of lawyers to the discretion of the mediator is ethically correct, considering claims of mediators coercing parties to settle, condemning past behaviour or even prohibiting discussion of a particular issue.[26]

Menkel-Meadow writes of stereotypes attached to mediation approaches – that seeking clarification of facts is characterised as feminine, while pursuit for legal principles is a masculine method to end conflict.[27]Critics underline that any talk of precedents, legal rules and legalised formulation of facts, which are essential elements of being heard in a mediation setting, are often disregarded as irrelevant and unnecessary burden to the mediator[28], who is more interested in the solution or settlement, than the process. Mediation critics oppose the use of informal sanctions to encourage parties to replace the rhetoric of faults, principles, rights and values with the pageantry of compromise and relationship.[29]It is often assumed that the participant’s past history is only a basis for predicting future needs, intentions, abilities and reactions to decisions[30]– a rather dim perspective of disputants who wish to understand why the conflict occurred and how did it affect the ongoing relationship, which for many leads to closure, beyond settlement.

Grillo suggests that mediators handhold the parties towards reasonableness and compromise, rather than moral vindication, by making parties speak in the language of interdependent relationships instead of individual rights.[31]A mediator dictating the permissible jargon contradicts the basic principles of the voluntary process, and opening guidelines such as “There is little value in talking about the past…” or “unless I specifically request it, we will talk about plans for the future”[32]could make mediation an emotionally claustrophobic experience. However, sweeping aside mediators who tend to make parties cringe, most international mediators would encourage freedom of speech – “The way you choose to do it (speak) is the way I want to hear it” or “anything I say in this mediation is an invitation for you to consider and nothing more”[33].

Many cultures dissuade women from expressing resentment, and label anger as bad[34], or weak or embarrassing. Anger is often a source of her energy, strength, and growth; and an “injunction” from a mediator to suppress anger is an act of violence.[35]Grillo’s activism is relatable to many women struggling to voice out their plight in torturous workplace and family disputes. Mediation isn’t empowering when it forces a woman in distress, battling the negativity of the past, to build a constructive relationship with her adversary.[36]Having assured disputants an opportunity to speak in confidence, besides an atmosphere of trust and civility, it is vital that the mediator acknowledges and manages anger to clear the way for effective communication.[37]Censoring anger is destructive and many mediators endorse the art of skilfully transforming anger into something beneficial, like compassion.[38]

The second-wave feminism celebrates the difference of women from men and calls for an acknowledgement of their distinct moral voice [39]and the “ethics of care”, which was stereotyped as feminine[40]became the new normal through which legal questions could be also addressed, and judges were beckoned to attentively listen to the voice of women[41]. The transformative mediation model took heed of this development and, instead of focusing on efficient solutions and overcoming biases, it re-emphasizes the process and the values of “ethics of care” in mediation.[42]The transformative model reasserts the importance of relationships and communications, via self-empowerment and recognition of the other.

Settlement is like Sex? – the “alternative” closet (Confidentiality)

A bunch of critics of dispute resolution seem to suggest that mediation theorists and practitioners have been living in denial all along, implying that the juridical subject be reframed from a bearer of interests to a bearer of desires.[43]Just like Daniel Del Gobbo[44]attempted to discuss the queer theory perspective on dispute resolution, I find it intimidating to marry a collaboration between legal theories of sex and settlement, but it’s a risk worth taking considering that Queer theory hangs its hook on critiquing whatever purports itself to be settled or resolved,[45]and critics are anxious of confidential mediation behaviour.

Initially, shifting from interests to desires seems inapposite because the analogy between sex and settlement is obviously imperfect[46], but the practice of settlement, interestingly, like sex, is constituted by the mutual interplay of the parties’ wants and desires in reaching a negotiated agreement over new and potentially pleasurable terms that may or may not come to pass.[47]Similarly, participants interests may be prone to change in the negotiation on account of the other parties’ stimulating behaviour, intervening events in their lives, and their affective responses to the bargaining environment, which may or may not have a rational basis.[48]All that matters is that the settlement process feels good-socially, culturally, economically, legally-or that it feels better in the moment, at least, than an adjudicative process which would distribute pleasure and danger in a less satisfying way.[49]

Del Gobbo’s stance that consensual dispute resolution (CDR) is an alternative practice in relation to the liberal legalism of rights, just how consensual sex between LGBTQ2people is a non-normative sexual practice to mainstream sexual culture, is to be understood with how critics of mediation have grown sceptical about what goes on behind closed doors.

At the core of identity discourse, on the other hand, lies a ‘Levinassic’ face-to-face encounter with the other. It is a dialogic engagement and a much more dangerous experience since at the heart of this meeting is the idea that we know how we enter the dialogue but never know who will conclude it.[50]

As an “alternative” legal form, CDR has been historically marginalized byliberal legal scholars who have sought to limit and altogether ban its use, drawing parallels to how consensual sex between LGBTQ2people has been condemned morally and legally.[51]Private interests are forbidden for the public value of rightsand Owen Fiss would justify that “when parties settle, society gets less than what appears, and for a price it does not know it is paying.”[52]In this extremity, where Fiss would condemn mediation as a “perverse”[53]for its unorthodox process of justice and peace, and other critics view intermediaries as con-artists[54]using “psychological ploys” to serve the interests of powerful parties, there is an obvious attempt to push consensual dispute resolution back into the closet and keep it obscure. The fear of the unknown is what seems to bother most critics of mediation and the rebellious nature of mediation (similar to queer sexuality) – its ability to look beyond regressive norms and customs is probably its most attractive feature.

Del Gibbo reads Fiss’ work as “judicial paternalism that is effectively operating as a form of conservative sexual morality”. Equating adjudication to “good sex” and settlement to “bad sex”, many would agree with Del Gobbo that “privileging of rights over interests is a homophobic and heterosexist distinction that undermines the dignity of individuals” and strips them of empowerment of self and recognition of others as human beings. Settlement promises an independent journey of justice and peace that is stubbornly desire by the participants, despite the pressures of society to repress it. [55]I must agree with Del Gobbo disapproval of Fiss’ work as a condescending attempt by the state to enforce its vision of pubic values at the expense of the subject’s own private and potentially queer interests in resolving their disputes through a consensual process.

In conclusion –

Disputes are often a mixed bag containing emotional and legal complaints, and mediation provides an opportunity to bring intuition and emotion into the legal process[56], permittingdisputants to voice their true (often closeted) sentiments, in an open-ending, non-traditional and liberating process. There are critics who claim informal processes moderate the antagonistic adversarial posture of disputants[57], and such isolated incidents have critics denouncing institutionalised mediation programmes, stating “self-empowerment has no place at the bar”[58], but mediation’s empowering nature is availed by people, worldwide, who voluntarily decide to participate and make their own decisions. It is juvenile to frame mediation’s identity based on few anti-settlement crusaders who equate mediation to truce or civil plea-bargaining, and as liberalism’s 20thcentury champion, John Rawls, put it – “Within the limits of justice, each is free to plan his life as he pleases”.

FOOTNOTES: 

[1]Jonathan Rodrigues is a Mediator based in India. This essay was written and submitted as an assignment as part of the coursework during his LL.M. studies in Mediation and Conflict Resolution at the University of Strathclyde, UK, 2019-2020.

[2]Joy Harjo (2015) Conflict Resolution for Holy Beings, W.W. Norton & Company, Inc.

[3]Marian Roberts (2017), Interdisciplinary influences on family mediation: A chronicle of colonisation foretold? Mediation Theory and Practice, Equinox Publishing, 211–231

[4]Robert H. Mnookin & Lewis Koornhauser (1979), Bargaining in The Shadow of the Law: The Case of Divoirce, 88 YLJ. 950

[5]Tidwell, A., (2003) Conflict Resolved?: a Critical Assessment of Conflict Resolution, London: Continuum

[6]Abel, Richard L., 1982. The contradictions of informal justice. In: R.L. Abel, ed., The Politics of Informal Justice. Volume 1. The American Experience. New York: Academic Press, pp. 267-320

[7]Michal Alberstein, ‘The Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations’ (2009) 11 Cardozo J Conflict Resol 1

[8]Carrie Menkel-Meadow (2006), “Peace and Justice: Notes on the Evolution and Purposes of Legal Processes” 94 Georgetown Law Journal 553.

[9]https://www.mediate.com/articles/rodrigues-mediation-in-india.cfm

[10]Russell Korobkin (2005) ‘The role of law in settlement’ The Handbook of Dispute Resolution, 254-276

[11]Korobkin, Negotiation Theory and Strategy, 2002, pp.37-57

[12]W.W. Steele Jr., “Essay: Deceptive Negotiating and High-Toned Morality,” Vanderbilt LR, 1986, 39, p. 1390.

[13]J.J. White, “Machiaveli and the Bar: Ethical Limitations on Lying in Negotiation,” American Bar Foundation R J, 1980, 926-928

[14]Phipps v Winneshiek County, 593 N.W. 2d 143 (Iowa 1999), p. 146

[15]Restatement (Second) of Contracts 164 (1981)’; and Restatement (Second) of Torts 525 (1977).

[16]Model Rules of Professional Conduct R. 4.1 (2002)

[17]See Morta v. Korea Ins. Corp., 840 F.2d 1452 (9th Cir. 1988), p.1456

[18]See, for example, Midwest Commerce Banking Co. v Elkhart City Centre, 4 F.3d, 521 (7THCir. 1993), p.524

[19]Spaulding v. Zimmerman, 116 N.W. 2d 704 (Minn. 1962), p 710.

[20]Rojas v. Superior Court, 15 Cal. Rptr. 3d 643 (Cal. 2004)

[21] J. Auerbach,Justice Without Law? 136, 144-46 (1983);

[22]Williams, DeconstructingGender,87 MICH. L. REV. 797, 813 n.61 (1989).

[23]Trina Grillo, ‘The Mediation Alternative: Process Dangers for Women’ (1991) 100 Yale LJ 1545

[24]Ibid.

[25]CAL. CIV. CODE § 4607(c) (West 1983) read with Section 1040 of the Evidence Code.

[26]Merry & Silbey, Mediator Settlement Strategies,8L. & POL’Y 7 (1986).

[27]Menkel-Meadow, Portiain a Different Voice: Speculations on a Woman’s Lawyering Process, 1 Berkerly Women’s L.J. 39, 50 (1985)

[28]Rifkin (1984) Mediation from a Feminist Perspective :Promises and Problems,2 LAW & INEQUALI- TY 21, 22

[29]Merry & Silbey, n 25

[30]J. Folberg & A. Taylor (1984), MEDIATION 14

[31]Merry & Silbey, n 25

[32]D. Saposnek (1983), Mediating Child Custody Disputes

[33]https://www.mediate.com/articles/berlinB1.cfm

[34]H. Lerner (1985), The Dance of Anger

[35]Trina Grillo, n 22

[36]Rogers & Francy (1988), Communication in Mediation: Is More Necessarily Better?, Mediation Q.,

[37]Griggs, Thelma. (2007). Handling anger in mediation: concepts and strategies.

[38]http://www.adrservices.com/wp-content/uploads/2016/11/Fingerman-article.pdf

[39]Carol Gilligan (1982), In a Different Voice: Psychological Theory and Women’s Development

[40]Menkel-Meadow n 26

[41]Katharine T. Bartlett and Rosanne Kennedy (1991) Feminist Legal Theory:Readings in Law and Gender, Westview Press.

[42]Bush (1989), Efficiency and Protection, or Empowerment and Recognition: The Mediator’s Role and Ethical Standards in Mediation, 41 FLA. L. REV. 253

[43]Michael Warner (1999), The Trouble With Normal: Sex, Politics, and The Ethics of Queer Life

[44]Daniel Del Gobbo, ‘Queer Dispute Resolution’ (2019) 20 Cardozo J Conflict Resolution 283

[45]Ibid

[46]Ann T. Spence, (2003) A Contract Reading of Rape Law: Redefining Force to Include Coercion, 37 COLUM. J.L. & Soc. PROInS.57, 70

[47]See Del Gobbo, n 43

[48]Fsisher, Ury &Patron (2011), Getting to Yes: Negotiating Agreement Without Giving In

[49] Carole S. Vance (1984) Pleasure ad Danger: Exploring Female Sexuality

[50]Albertstein, n 6

[51]Del Gobbo, n 43

[52]Owen Fiss (1984) ‘Against Settlement’  Yale Law Journal 93, 1073-1091

[53]I have taken Del Gibbo’s criticism of Fiss’s perceived privilege of a collective authority over individual’s legitimate interests and compared it to homosexuality seen as perverse to heterosexuality.

[54]Laura Nader (1979), Disputing without the Force of Law,  88 Yale LJ 998

[55]Brenda Cossman (2004), Sexuality, Queer Theory, and Feminism After: Reading and Rereading the Sexual Subject, 49 McGIL L.J. 847

[56]S. Goldberg, E. Green & F. Sander, (1985) Dispute Resolution 313

[57]Abel, Richard L., n 5

[58]Deborah R Hensler, ‘Suppose It’s Not True: Challenging Mediation Ideology’ (2002) 2002 J Disp Resol 81

REFERENCES:

  • Alan Tidwell (1998)Conflict Resolved: A Critical assessment of Conflict Resolution London: Continuum. Chapter 8 ‘A Critique of Resolution Processes’
  • Abel, Richard L., 1982. The contradictions of informal justice. In: R.L. Abel, ed., The Politics of Informal Justice. Volume 1. The American Experience.New York: Academic Press, pp. 267-320
  • Bryan Clark (2012) Lawyers and Mediation. Berlin, London: Springer Chapter 5
  • David Spencer (1996) ‘Exploding the Empowerment Myth of Alternative Dispute Resolution’ Commercial Dispute Resolution Journal Sep 1st1996
  • Laura Nader (1979) ‘Disputing Without the Force of Law’88 Yale Law Journal 998-1021
  • S N Subrin (2002) ‘A traditionalist looks at mediation: it’s here to stay and much better than I thought’ 3 Nevada Law Journal196-231
  • Owen Fiss (1984) ‘Against Settlement’ 93 Yale Law Journal 1073-1091
  • Russell Korobkin (2005) ‘The role of law in settlement’ in in Michael L Moffitt and Robert C Bordone (2005) (eds.) The Handbook of Dispute Resolution, 254-276
  • Trina Grillo (1993) ‘The Mediation Alternative: Process Dangers for Women.’100 Yale Law Journal 1545-1610
  • Simon Roberts and Michael Palmer (2005) Dispute Processes: ADR and the Primary Form of Decision-Making Cambridge: Cambridge University Press
  • Susan S Silbey & Sally E Merry (1986) ‘Mediator Settlement Strategies’ 8 Law and Policy (1) 7-32

 

But, Is it necessary to speak-up?

But, Is it necessary to speak-up?

Run to the rescue with love, and peace will follow – River Phoenix

The deadly Covid-19 has gripped the planet with fear, but a civilization of 1.4billion people has no time to think twice about a coughing or sneezing neighbour, as it finds itself battling a vicious virus of hate and mistrust. New Delhi has witnessed the spark of communal riots and the viral reactions that followed such horrific incidents have created ripples of rage and anxiety among netizens in India. A (misunderstood or misrepresented) legislation poses a threat in catalysing a civil war on the lines of religion and identity, and I sit here dispirited in a foreign land, ironically studying an LLM in conflict resolution.

The truth is, no matter who you are or where you live or what God you pray to or don’t, you are concerned about the loss of humanity in certain pockets of the country, and you are afraid it will trickle down to your region, your neighbourhood, your family and even worse, your own self. The physical unrest in one corner of the country has provoked our minds and shaken our souls as we know we will have to all face the test, someday soon. Some of us are ashamed of our friends’ political orientations and hidden racist insecurities, while others are shocked to learn of our families’ secret ideologies and value systems.

You can try to shut yourself from the world, ignore the chaos surrounding you or sprinkle some humour on everything you hear and watch, but you can’t do it for too long – not if you’re human, not if it begins to haunt you. Many of us have taken to Facebook and Instagram expressing our fear or rebellion, while others are tweeting furiously about how they condone or condemn the brutal scenes which have gone viral on social media.

There are many of us who have not spoken out on social media or even to a friend over a call or even to our families, but, internally, we feel shattered. It could be the fear of being persecuted, the anxiety of losing age-old friends, the tensions of everyday life – work deadlines and home responsibilities, the pressure of excelling at examinations and job interviews, the risk of being ignored for a raise or fired by your employer – or it could simply be a sense of hopelessness and frustration that we can’t make a change, that our voice is just an insignificant drop in an ocean full of bigger influencers.

It is perfectly alright to relate to any of the reasons listed above.

It is also perfectly fine to not relate to any of the reasons listed above and simply say, “We chose not to speak – not because we don’t care, but because we really don’t care!”

Yes, for many of us, life goes on. We wake up every morning going about minding our business like we always have, choosing to live in peace like we always do, deciphering right from wrong without letting our moral compass be prejudiced by negative energy. No news we read, watch, or hear from external sources affect our relationships with friends and acquaintances at our workplace or strangers we meet on the street. We don’t feel the need to go out of our way to be secular or liberal, as that’s the lifestyle that flows through our veins. We don’t care who you are, where you are from, who do you worship, how you dress, what language you speak, where were you born, what you eat or drink, why you don’t wear your patriotism on your sleeve- as long as we can connect with you on a human level, and that’s what we plan to keep on doing in these times of a humanitarian crisis.

We understand the rationale and good intentions of some of our friends who think it is necessary to speak up, but we rather spend our time and energy living in freedom and creating memories with our friends from diverse communal backgrounds. We prefer being kind with the food delivery guy who was late, than slamming a random stranger on Twitter who swore at a food delivery guy. We prefer greeting our taxi driver with respect, than take out our phone and shoot a video of fanatic youth beating up a cabbie and spread hate on Facebook.We prefer gobbling up savoury and sweet delicacies at religious festivals celebrated by our friends, than re-posting Instagram stories expressing anger about something bizarre and ridiculous a certain religious leaders said of another religion. We prefer cracking positively racist jokes on our closest friends in front of them, than joining hate groups on WhatsApp and instigating disgusting chatter based on unauthentic videos.

Since health organizations around the world are putting out precautionary measures to tackle human contagions of the Coronavirus and suggestions to build our immunity, here are few tips, from some of us to the rest of us, to tackle human contagions of Communal-Hatred virus and rebuild humanity.

  • Wash yourself from any negative energyyou have gathered on your contact with the outside world. Don’t take it for granted that something you have watched or heard, or something that was said to you, won’t affect you. Suppressing a negative experience will only help nurture the virus of mistrust and hate. Speak to someone who practices the same liberal and secular philosophy as you.
  • Quarantine yourself with positive energy– news of hope, peace, progress, courage – and optimistic personalities. Unfollow, unsubscribe, uninstall anything that is affecting your mental state of mind. If you think the news is not letting you sleep, turn off the notifications. If you feel nauseous listening to the rabid discussions at the dinner table, excuse yourself – feel free to politely express your discomfort and lack of appetite for such bigoted views.
  • Emergency Helpline– Feel like you suffering from any of the symptoms of the Communal-Hatred violence, don’t infect the whole world. Call up a friend from a different religious background – speak to them of your honest thoughts and feelings. There is no better way to dispel hatred than to rebuild trust. Grab a coffee, go for a movie, do things that you always do to hang out with the friend. Laugh about your insecurities, cry about the pain you feel for those suffering. Acknowledge and appreciate their perspectives as well, which might not be the same as yours.

These measures should not be misconstrued by our more vocal soldiers of humanity as our indifference to the injustices meted out to the people. To prioritise ourselves and then help educate others around us, by having conversations and calling out the hatred and bigotry from amongst our own family and friends, we help contain these bigger injustices in our own small ways, and not necessarily through social media.

This is no time to judge the ones who stay silent. Not all of us have the words and the voice to express those words. Some of us prefer to live with action and affection, peacefully going about our daily lives and hope to contribute to the same goal – the restoration of trust and humanity in this country.

Eating the humble Kilmarnock pie

Eating the humble Kilmarnock pie

“Dare to be honest and fear no labor” – Robert Burns.

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My first visit to the Kilmarnock Sheriff Court calls for an interesting diary entry. Representing the Strathclyde Mediation Clinic, we walked into a jammed courtroom handling small-claim disputes, only to be reduced to mere spectators, forced to settle for the humble Kilmarnock steak and haggis pie, which, by the way, is absolutely delicious.

After 3 and a half hours of watching court proceedings, the sheriff chose not to refer any cases for Mediation. There were a few conflicts – one involving a disgruntled buyer and a seller of second-hand cars, another dealing with a claim of trespass by a letting agency, and yet another involving two neighbours who just couldn’t agree on splitting the house repair costs – that could have been referred to us, but the sheriff thought it was best to handle them himself – pausing, adjourning and continuing the courtroom drama. The work experience was disappointing, but there were positives along the way to Kilmarnock.

Firstly, I began my bus journey that morning carrying a load of stereotypes of the “notorious” town, which is also host to the oldest football club in the Scottish premiership. I had read articles labelling Kilmarnock as the “crappiest town to live in the UK” and that it was littered with garbage and drug addicts. All this changed when I met the first Killie at the popular Brownings bakery along the Marnock Water.

Wandering around the streets of Kilmarnock on a cold October morning, I stopped to grab a hot latte, before I freeze to death. The gentleman standing in front of me noticed that I was not dealing too well with the weather and offered me his place in the queue. I refused as he was way older, but he insisted – “Oh, don’t worry about me. This is still summer here in Scotland”. We began to chat a little about our backgrounds. He told me tales of the once booming industrial town which had now become a nightmare for business and I shared stories from modern day India.

We spoke about mediation and I told him how we were trying to introduce mediation to the public in Kilmarnock through the sheriff court. “Aye! We need it, don’t we? You’ll have to work hard to make it work here, people here don’t like change, even if it’s good,” he said.

Fifteen minutes on and we were still in the queue, thanks to the surprisingly slow service. “Ah, this coffee is taking bloody longer than the clowns negotiating Brexit,” he said. I was curious and asked, “So, what did you choose? Leave or stay?”

“I chose stay, but I am so fed up of the bloody circus, that it’s better that we leave and end the madness,” he confessed. Valid point I thought, as I finally got my coffee and shook his hand to say goodbye.

“You have a good day son. Leave or stay, Killie gonna be Killie. Nothing gonna change here, not the good, nor the bad. But, that shouldn’t tell you to not try, right? Good luck with the Mediation.”

Introducing mediation service at the sheriff court in Kilmarnock didn’t work out on the first attempt. We will have to go again, even if it means eating another delicious pie.

India’s Internet Citizens can settle online!

Originally published on Mediate.com – https://www.mediate.com//articles/rodriguesj1.cfm

This millennial generation demands quick, accessible and tech-ridden supply of solutions to all its needs – be it food, clothing, gadgets, travel, companionship, etc. A slight delay in delivery of any of these ‘basics’ and the youth waste no time in shamming the service provider on every possible public forum on the internet. How, then, does this generation remain indifferent and accommodating of the traditionally inefficient court system?

Is it a sense of hopelessness and a submissive approach to the existing ones? or the lack of awareness of the existence of more efficient platforms?

Online Dispute Resolution is the way forward for those who prefer to manage conflicting situations from the comfort of their laptops and mobile tabs. Cost effective, time efficient, comfortably casual and confidential settings, a process devoid of baseless documentation, a seamless tech-enabled solution, neutral facilitators and consensual settlements – it can’t get better for those who live digital lives. And, we haven’t even gotten down to discussing how the more frustrating reasons – rising travelling costs, global warming, soaring cost of living – force us to stick to the confines of our internet homes.

We are looking at a whole new approach to managing ‘Disputes’, which includes – not being naive to the possibility of their existence, being prepared to effectively tackle them when they arise and fixing past relationships which have deteriorated beyond repair.

In the hope of rebuilding broken relationships, if the key is to keep the communication on; then, can there be an obligation created to keep the conversation going, during the stages of differences, disagreements and even at the peak of a full-blown dispute? Can we secure the continuance of dialogue even in the most heated moments of a contractual relationship? Can we use the online space to talk things out within an atmosphere of trust rather than talking out loud and washing dirty laundry on public and social forums?

Yes, India’s Internet citizens can finally settle online!

The excuse of not having an opportunity or non-existence of a forum to consensually resolve disputes online is no longer acceptable. A visionary tech-legal startup, Presolv360, has designed India’s first online dispute management platform that provides the user with three unique services to tackle disputes. Besides the millennial trend of wanting quality services in quick time, there is also a burden to be borne. With over 30 million pending court cases, this might just be what frustrated litigators and the exhausted court system have been waiting for.

These services will act as enablers, assisting courts to dispense justice, governments to govern, businesses to flourish and people to enjoy a tension-free life. Now, as individuals with different likes and dislikes, conflict in inevitable; but Presolv360’s services assure citizens in India a less stressful time while addressing these conflicting situations.

Often people ‘react’ to conflicting situations because they feel they don’t have the time to sit back and present a calculated ‘response’. The consequences of a ‘reaction’ are rarely memorable and mostly regrettable. Online Dispute Resolution buys yourself enough time to dialogue and empowers you to make right what went wrong. Bottom line – it encourages a facilitative discourse before going to court or being dragged to court.  Finally, for those existing relationships – personal, professional or business, that haven’t been ‘secured’ and encounter a friction, Netizens in India now have the ‘Direct’ button, where you can choose to either rebuild the relationship or dissolve it amicably, saving face, time and costs.

Two major challenges that have thwarted the progress of mediation in India have also been tackled here –  the fear of antagonizing litigating lawyers & the suspense of closeted mediators. Importantly, this online platform’s services don’t eliminate the lawyer or legal advice, but instead encourage lawyers to be more productive and efficient in their roles. It allows lawyers to find a consensual settlement for their clients in resolvable matters, so that they can focus on more serious issues that necessarily need the guidance of the court.

The platform also serves in bringing the dedicated neutral facilitators into prominence. Disputing parties now have the option to choose their own neutral – be it a mediator, conciliator or arbitrator – after having researched on their background, style and experience – a concept people have only heard about, but never experienced for real, in India.

‘Precaution is better than cure’ is an old, overused cliché, but this trend is bringing it back to life and asking people to not take relationships for granted, not anymore!

 

Negotiating In “Blind” Faith

This article was originally submitted to Kluwer Mediation Blog, and may be viewed here. It has been reproduced with permission.

I was recently witness to a mediation session during which two seasoned negotiators behaved disappointingly. Why? On the other side was a negotiator, who walked in with a cane, accompanied by her lawyer. From the outset, these two experienced negotiators behaved very awkwardly at the table, with one of them even waving at the visually-impaired individual, attempting to gather her attention while greeting her. Without meaning anything of what they said or did, their behaviour was rude and insensitive.

Many strange and embarrassing things happened at the table that day that motivated me to call up a lawyer friend based in Goa, Karleen De Mello. Blinded at birth, Karleen never took to life as a victim or survivor; her approach has always been positive and competitive. Having participated in a few mediation scenarios, Karleen has been kind to share some insights on how to avoid the type of awkward behaviour I recently witnessed at a mediation table with a blind party.

“You speak about trusting the person sitting opposite you? What about the person sitting besides you? I had a situation where the mediator called for a caucus with the opposing party and my lawyer walked out of the room without me. Deeply embarrassed, he then returned to fetch me. I didn’t know whether to curse him for his insensitivity or burst out laughing at the chaos we must have created in the room,” recalls Karleen.

Karleen and I suggest the following guidance for mediation situations where one person at the table is blind.

Familiarise Yourself With Names: this is effective as it gives the conversation direction and a personal touch. Karleen says, “For those of us with limitations, we can’t look the others in the eye; therefore, addressing them by their name makes an effective human connection. It helps draw their attention and ensures they are listening to you at all times. Taking time to learn names and to pronounce them right will make the others believe that you mean everything you say from then on. For everyone else, saying our name out loud and regularly while conversing similarly builds rapport with us and helps to make us feel involved and engaged.”

Handshakes: greetings can be chaotic and awkward if not done well. Setting the right tone is essential to a mediation and therefore these preliminary gestures must be well thought out. Karleen says, “The person escorting the blind party will usually direct the hand of the person who is visually impaired across the table. If we choose to shake, we must make sure it’s a confident one. So much can be deduced from our sense of touch. Having said that, for everyone else, please don’t consider it rude if we forget to shake and keep you hanging. The best option is, with us, you go second. Reach out only if we do first so as to avoid any awkwardness”.

Break the Ice: the first few moments are crucial to creating an amicable atmosphere. Addressing the disability early will allow the process of trust-building to begin. Karleen says, “This is important as not all of us may be holding a cane, wearing tinted glasses or carrying a ‘Brailler’ and therefore our disability may not be apparent to others”. This could work – “It’s great to have finally come to the table to dialogue. I am here with you a 100% despite my visual limitations. Yes, I am legally blind, but what I can’t see, I assure to make up with my listening ears. On a lighter note, my lawyer says you look like fine people, so I hope you don’t go against my counsel’s best judgment.”

Connect via Empathy: eye-contact is key for effective communication. For a situation where one person cannot see, we must look towards another powerful tool – the sense of listening attentively – in order to connect empathically. Karleen says, “For us who rely a lot on our ears, we must try nodding, some mini-acknowledgements (“oh”, “ok”, “yes”, “right”, etc.). Don’t be afraid to smile. Body language is our biggest tool to connect with the other person. I try and not cross my arms at the table and rather place them confidently in front of me. I pull the chair in close and sit deep so that I’m comfortable and do not need to keep shifting my posture”. Karleen says it’s perfectly alright for us (who can see) to look into a blind person’s eyes while talking to them. “Please don’t feel awkward about it and we will know that you are looking at us because the tone and volume of your voice will differ if you don’t. Even if you have to speak to your client/counsel sitting besides you, kindly excuse yourself before you do so. I have faced this before and I think it’s rude if I’m speaking to you, and I can hear you whisper something to someone else next to you.”

Power of Words: we know the same words, said differently, can either kill or heal an existing situation. It is not only about saying the right things but understanding correctly, what the other person is saying. Summarising, reflecting, re-framing are great tools for both ourselves and the other party, so that we are always on the same page.

Take Control: one of the pillars of mediation is that it empowers and encourages the parties in a dispute to take charge of the decision-making and this self-determined nature of the little agreements or the final outcome should never be compromised. Karleen says, “Also, regular check-ups with your negotiating partner could help you understand the mood in the room as you don’t want to be rambling non-stop while the other party is losing interest and turning hostile. When you want to pass on a question to your partner or take the lead in responding to a statement, call out to your partner and announce that you would be addressing the situation, or that you are passing it on. Your decisions, ideas and opinions are yours and should never be narrated through another person, even if it is your negotiation partner. She/he may add to it or advise you privately against it, but that should never take away your independence and ability to apply your mind and creativity in handling arguments, claims or offers at the table. For everyone else, If I am the client/party to the dispute, I am the final authority on the settlement, therefore, do not look for repeated validation from my counsel if I have given my final word, having followed my counsel’s advice.”

As negotiators or mediation counsels, I believe it’s very important we prepare ourselves for a situation where the other party may be facing physiological limitations. The key is to keep the focus on empathy and not shift to sympathy. Through my conversations with Karleen, while co-authoring this piece, I have learnt that people with physiological limitations like being respected and accepted as they are, and I believe, we, who enjoy all our physical senses, have the responsibility in keeping the negotiation or mediation environment inclusive to everyone in the room.

“These suggestions have worked for us in our experience, and this list is most definitely not exhaustive. Every person devises their own means that are unique to their experiences and circumstances. As someone who is sighted, you may need to do certain things differently to ensure you are reaching out to everyone at the table. When the end game is communicating effectively, there can be no hard and fast rule that will work in every situation, except of course, keeping calm and leaving the anxiety behind,” concludes Karleen.

SC’s leap of faith could ruin Ayodhya’s fate 

 The Supreme Court’s verdict on referring the Ayodhya case to Mediation is a huge step forward, but sadly, a leap of faith that poses serious concerns with regards to preserving the sanctity of the process. 

By Jonathan Rodrigues

Talks of exploring the process of mediation to resolve the contentious Babri Masjid-Ram Janmabhoomi controversy has been doing the rounds for a couple of years now, and the apex court’s constitution bench, headed by CJI Ranjan Gogoi, must be appreciated for its judicial prudence in this matter. On a cautious note, however, the deadlines set, the mission attached and one of the professionals appointed to the mediators’ panel question the very essence of this collaborative form of dispute resolution. 

Exactly a year ago, Sri Sri Ravi Shankar, one of the members on the mediation committee appointed by the Supreme Court, and presumed to the playing the role of the ‘mediator’ in the proceedings, had reportedly said, “Muslims should give up their claim on Ayodhya as a goodwill gesture. Ayodhya is not place of faith for Muslims…We cannot make Lord Ram to be born in another place”. 

This statement is an absolute breach of Neutrality and Party Autonomy – two of the fundamental pillars of mediation. It not only lends an element of doubt and bias towards the Ayodhya case, but also paints the wrong picture to millions of people in India, who will have the misplaced perception of mediation as a party driven process and the mediator as a neutral. 

Section 89 of the Indian Civil Procedure Code (CPC) clearly defines the role of a Mediator and with India not having an exclusive legislation to govern the process, we can only rely on different legal recognitions and mentions of mediation. In a presentation to the UN general assembly in Vienna, on August 4, 2015, India had presented its definition of mediation as “the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit… by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasising that it is the parties’ own responsibility for making decisions which affect them”. 

In the interview with India Today in March 2018, the spiritual leader had said that the only solution is for Muslims to give up their claim to the site and build another mosque on a five-acre plot in Ayodhya. Going by his intentionally conciliatory, but evidently arbitrary opinions on this matter, which he decided to make public, and the universally accepted ethics of mediation, acknowledged by India, Sri Sri must humbly withdraw himself from the committee, thus maintaining its credibility. 

Considering his charisma and personality, Sri Sri would certainly make a good mediator, but with the above statements he is not qualified to be a ‘neutral’ for this particular case. Even as a Conciliator, the neutral’s role is limited to only making suggestions and providing an evaluative analysis or opinion, but this has to take place in the confidential environs of a mediation or conciliation workplace.

In conclusion, consent to the chosen mediators is voluntary and if either of the parties don’t approve of a particular mediator on the committee, the Supreme Court must make provisions to substitute the professional who brings in a conflict of interest into the amicable workspace. In hindsight, if Sri Sri retains his place on the panel and works in an unbiased manner, but if the mediated settlement tilts even fractionally towards the Hindu community, in the eyes of the general public and the media, the issue of conflict of interest will be brought up and will simply discredit all the hard work put in to resolve the issue. 

babri-masjid-Illustration1
Image Courtesy: News 18 (From the web) 

Setting a timeline to find a “permanent solution” to the Ram Janmabhoomi-Babri Masjid land dispute in Ayodhya in “eight weeks” is another treacherous situation. With the general elections on the horizon and political parties using all possible agendas to polarise vote banks, the Supreme Court’s deadline of eight weeks to resolve a 60-year-old sensitive case that can instigate violent reactions, is harsh and hasty. 

Firstly, mediation is a voluntary process and with all the emotional and communal baggage attached to the subject matter, parties involved and affected might need more than eight weeks to resolve this dispute. Secondly, setting the deadline with the intention of finding a “permanent solution” seems more like coercion than an invitation to dialogue.

Referral to Mediation in India can be mandatory, as currently directed by the apex court, but engaging and settling a dispute or agreeing to consider a proposed settlement is still voluntary and the mediators appointed in the Ayodhya case and the Supreme Court must make sure that this fundamental pillar of mediation is respected. If no settlement is reached at the end of the suggested timeline of eight weeks, the Supreme Court appointed mediation committee must follow the 2017 Delhi High Court order (Kansagra v. Kansagra) which states that “a mediation report should only contain one sentence and nothing more, in order to maintain the confidentiality of proceedings”, which means that nothing that was discussed leaves the mediation room. 

On a positive note, by deciding to keep the media at bay with regard to the day to day proceedings of the mediation process, the Supreme Court has rightfully protected the fourth fundamental pillar of mediation – confidentiality. It would also help proceedings if the mediators appointed to the committee do not talk to the media before, during or after the matter is resolved, thus honouring exclusivity and privacy in a mediation setting. 

The general feeling and response towards the Supreme Court’s verdict has been positive, with religious leaders, politicians and intellectuals hailing the decision to mediate. Everyone waits with hope that this issue finds closure and communal harmony is restored in the state of UP. The Ayodhya case isn’t a subject matter that is exclusive to only the litigating parties in the case, but is inclusive of the wider communities represented by these parties. And as much as most of Indian Hindus and Muslims living in other regions might not be directly affected by the outcome of the mediation, they will be interested in knowing how the situation was handled with respect and sensitivity.

With the Indian legal fraternity taking giant strides towards mediation via recent legislative amendments in the Commercial Courts Act and an exclusive law rumoured to be debated in the corridors of Parliament, having the right brand ambassadors as mediators is important. Any compromise on the four fundamental pillars – neutrality, voluntariness, confidentiality and party autonomy – would not only lead to a failed mediation, but also create a negative sentiment among first-time users and observers towards mediation.