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Simply put, mediation is a process in which two or more people involved in a dispute come together to try and find an acceptable and workable solution to their problem with the help of an impartial third party/neutral who facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.
Conflict or disputes generally arise out of a difference in thought process, attitudes, understanding, interests, requirements and perceptions. However, in all cases, the following five belief domains stand out as the root cause:
What follows is conflict which generally follows a typical five phase lifecycle:
Although most individuals realize their differences in the Differentiation phase, invariably a deadlock occurs at this stage due to various interpersonal reasons. Mediators or conciliators help provide the right catalyst action at this stage to assist the parties through the down-slope of de-escalation and resolution stage.
“People resorting to mediation for conflict resolution is a sure-shot sign of a cultured and evolved society”.
Mediation is the preferred ADR option because it allows all parties to
Litigation and Arbitration
Mediation and Conciliation
|Proceedings adversarial in nature. Invariably acrimonious and breakdown of relationships.||Promotion of goodwill and maintenance of relationship is a strong possibility. Communication opens, irrationality reduces and ill-will diminishes.|
|Zero-sum game: One party winning invariably means someone is losing.||Everyone can possibly be a winner. Even failure to reach a final solution is not considered a total loss and can be helpful in the long run.|
|Little room for compromises and concessions.||The basis itself is understanding, compromises and concessions while protecting core interests.|
|Coercion by counsel to take up extreme positions.||Counsel can be asked to stay in advisory role.|
|At the end of the deliberations, control shifts to a third party viz the judge or the arbitrator. Feeling of helplessness.||Parties always in control and freedom to withdraw is available till finalization. No final decision without mutual acceptance.|
|Concern is seldom on the individual or his interests but more on the legal position of the case.||Protection of core interests always in the hand of the parties.|
|Evidence and the rule position is all that matters. Emotions and feelings have no role to play.||Parties can express and vent out natural feelings and even negative emotions such as anger, distress and frustration without damaging the process.|
|Cultural factors and context are largely ignored.||Due cognizance of cultural factors and context. Mutual concerns, underlying issues and anxieties can be dealt with.|
|The focus also is on past actions and deeds.||Focus is on the future and newer possibilities.|
|Arbitral or judicial award almost forecloses further options except review petitions in higher courts. More cost, more delay.||All possible options can be explored.|
|Cost and time intensive. Stress intensive. Open-ended.||No intimidation caused by time and cost considerations. Achieve closure and get on with life at the earliest.|
|Privacy and confidentiality compromised once the matter is in court. No hold barred after that.||Privacy and confidentiality always protected.|
|Overall, dissatisfaction (in part or whole) is rampant.||Phenomenal worldwide satisfaction amongst those who have tried it.|