LEARN MOREWhat is Mediation?
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:
- Latent Phase: Prelude to conflict, Disagreements
- Emergence Phase: The last straw.
- Initiation Phase: The heat is on!
- Differentiation Phase: Individuals step back and recognize the differences against each other.
- Resolution Phase: Individuals try to compromise to some extent and resolve the conflict on their own or through external help.
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”.
Why is Mediation the preferred Alternative Dispute Resolution (ADR) option?
Mediation is the preferred ADR option because it allows all parties to
- Settle the dispute amicably and maintain the relationship at the same time.
- Share perspectives and reduce differences.
- Progress with understanding, mutuality and positivity.
- Resolve with respect, dignity, empowerment and freedom.
- Achieve resolution in a quicker time period.
- Reach an agreement at a significantly lower cost.
Why does mediation score over Litigation and Arbitration?
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. |