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Conflict and Conflict-Resolution through Mediation
Conflict is defined as a clash between individuals arising out of a difference in thought process, attitudes, understanding, interests, requirements and perceptions.
Roy Eidelson and Judy Eidelson (2003) investigated some of the important roles that beliefs may play in triggering or constraining conflict between groups. In this context, the following five belief domains stand out as especially noteworthy:
(a) Superiority (b) Injustice (c) Vulnerability (d) Distrust (h) Helplessness
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.
What is Mediation?
A process in which two or more people involved in a dispute come together to try and find an acceptable and workablesolution 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.
Mediation as an ADR Method
Over time, realization has gradually but surely set in that Alternative Dispute Resolution(ADR) method of mediation (or conciliation) has a significant role to play in modern society where judicial proceedings are invariably expensive and very time consuming. Further, in litigation, the representing parties have little control over the final outcome after they have made out their case and presented the evidence through the lawyers. Although review opportunities are available by progressively moving to higher courts, dissatisfaction (in part or whole) is rampant in litigation. Judicial proceedings are also invariably acrimonious and lead to breakdown of relationships.
For the solution to be acceptable to the parties in conflict, the effort needs to be genuinely neutral, at least in the sense that it has to be non-judgmental, non-partisan and, above all, non-coercive. Additionally, to have lasting benefit, collaborative problem solving needs to be encouraged through all the phases of a process of conflict resolution, including the follow-up period in the aftermath of any agreement. The Mediation method of ADR probably provides these ingredients in ample measure which has led to its world-wide acceptance. The basic premise is obviously that conflict is inevitable and almost always resolvable.
Why is Mediation so attractive?
Mediation brings to the table a wonderful opportunity to be able to settle the dispute and also maintain the relationship at the same time. The entire process is after all about sharing perspectives, reducing differences and fostering amicability. Contrary to litigation, the entire process invokes understanding, mutuality and positivity. Many a times in personal life and so also in business/professional life, winning or losing is not the only consideration in an interaction. Conflicts are inevitable but alternative means of conflict-resolution like mediation which help all the parties to move on, maintain respect and keep the relationship alive are always welcome. The non-adjudicative, non-binding, consensual and voluntary aspects of the mediation process are probably the most attractive attributes of this option which provide empowerment and freedom to the disputants. Further, the relative ‘speediness’ of this process draws people towards this option.
How does the mediator go about his business?
It is commonly understood that mediation is a non-binding procedure in which a neutral or impartial third party (mediator/ conciliator) assists the disputing parties in mutually reaching an agreed settlement of the dispute. In practice, the conciliator is able to achieve this end- game by creating a situation which is different from one of direct confrontation and by gently coaxing the disputants to re-examine their earlier held strong positions. He is able to induce the disputants to explore other amiable options/solutions besides those they have themselves considered and rejected so far by bringing reason, flexibility, objectivity and trustworthiness in the entire discussion. At the end of it, he tries to achieve a mutually acceptable resolution if not an absolute win-win solution, by redirecting energies towards constructive outcomes. What is probably most appealing is the fact that decisions are essentially recommendatory and agreements are mutual. There is never a feeling of something being forced or imposed as what you would feel in the case of adjudicatory methods like litigation or arbitration.
How does mediation score over Litigation and Arbitration?
In arbitration and so also in court litigation, the proceedings are essentially adversarial in nature. One party winning invariably means someone losing like in a zero-sum game. Promotion of goodwill is almost a rare possibility in such an effort. There is no room for concessions and compromises and sometimes positions have to be taken much against the will of the disputants. At the end of the deliberations, control shifts to a third party viz the judge or the arbitrator which makes the disputing parties helpless in a way. Also, in these methods, the concern is seldom on the individual or his interests but more on the legal position of the case. Even cultural factors and context are largely ignored. The focus also is on past actions and deeds rather than on the future and newer possibilities. Finally, an arbitral or judicial award almost forecloses further options except review petitions in higher courts which once again are time and cost intensive.
On the other hand, mediation ensures that disputing parties are able to take decisions without feeling intimidated or threatened by cost and time constraints. It becomes a very appropriate platform where mutual concerns, underlying issues and anxieties can be dealt with. Further, parties can express and vent out natural feelings and even negative emotions such as anger, distress and frustration without damaging the process. At the end of it, more often than not, communication opens, irrationality reduces and ill-will diminishes. During the process, even failure to reach a final solution is not considered a total loss and is helpful in the long run. Most importantly, mediation helps people to resolve issues and get on with their businesses and lives without feeling trapped in judicial wranglings.
Where all can mediation work?
The mediation process can be applied to settlement of almost all kinds of contractual and non-contractual disputes. It has found special application for resolving family disputes, business disagreements, consumer disputes and industrial fights. Speed, economy, confidentiality, convenience and ‘freedom to withdraw’ at any time are leading more and more people to adopt this as a preferred mode of conflict resolution. It however should not be even wildly construed that mediation can totally replace the legal system. Criminal cases, public safety matters and civil rights issues where the principle of law needs to be established or where there is a clear breach of obligation are ideally suited to be dealt by the courts and not appropriate for mediation. Also, where the disputing parties are not serious about the process or genuine intent and commitment is lacking, mediation is definitely not going to work.
Mediation in the Indian Context
Mediation is not new to our country where lack of education is rampant and access to formal judicial systems is still lacking. Right from the British Raj days, people have been sceptical about hiring lawyers and going to courts because of lack of understanding of law, costs involved and open-endedness with respect to time frames for resolution. Today also, millions of legal cases are lying unaddressed in courts. Corruption, especially in lower courts, has also been often talked about. With this as the backdrop, many people opt for non-judicial means of conflict resolution such as approaching Panchayats, religious heads, society leaders, family elders and sometimes even mafia dons. While such ‘non-formal’ means of conflict resolution may have severe limitations especially with respect to follow-up on commitments made, it is a reality that a huge number of issues are being addressed daily through such methods. Even educated people do not mind opting for such an approach for day to day issues.
Implementation in the Indian Scenario