The type of mediator one needs as well as deserve-Attributes of a good mediator

This Blog is written By Mr. Hrishikesh Jaiswal Student of NLIU, Bhopal.

Defining Mediation is very challenging, but if we are to define it, the aptest word would be to consider it to be a mode of conciliation that has had a long history and as of late has increased as a method of legal reconciliation. The reason for this being that mediation is a system that poses many attractive advantages, namely, proving each party with full control over the procedural method of the session as well as allowing each party to have autonomy over the outcome over their session.[1] The word ‘mediation’ is derived from the Latin term ‘medicare’ which means to be in middle.[2]The basic principles of mediation are Confidentiality; Willingness; Legality; Inexpensiveness etc.[3]

In the mediation proceedings, a mediator is a neutral third party[4] which uses effective and specialized communication and negotiation techniques[5] and thus aids the parties in arriving at an amicable settlement.[6] Choosing the right mediator is extremely important to the success of the mediation, there are certain characteristics a good mediator possesses or has trained themselves to actively engage in techniques that can assist clients in settling the dispute. These various types of mediator styles then give parties the chance to choose which may be more suitable towards their own particular needs and wants.

Here we would be listing certain traits every mediator must inculcate during the process of mediation. These are-

1.      Confidentiality - ‘Confidentiality’ in layman terms means the state of keeping or being kept secret or private. In mediation,  it takes has a slightly different meaning, it means that the adjudicator or mediator will not disclose anything discussed before, during, or after the mediation process to any other person except the people who were a part of the process and that too if necessary.[7] He is obligated to destroy all the drafting and notes made during the session and can disclose it to the opposite party or any third party only if it is expressly permitted by the concerned party. It is one of the most vital attributes which makes mediation very attractive to people. In commercial matters, the parties generally do not wish to wash dirty linen in public and aim to resolve the dispute without the media or their competitors getting knowledge of it, mediation provides them with the best platform for dispute resolution, as here, the mediator will keep all the facts and delicate information to himself. It has been observed in many instances that famous business houses have resolved very critical issues through Alternate Dispute Resolution mechanisms without the public and media getting a wind of it. In family feuds, if the matter goes to the formal court, then the situation becomes such that both the parties throw sludge on each other to such an extent that reconciliation becomes next to impossible, mediation provides an out and out solution to it. Mediation has a provision for a caucus or private talks, in this, the parties can put forward their views and the mediator presents one party’s view to the opposite party only if necessary and that too in a dignified and acceptable form. A mediator is required to make an unwritten pledge that he/she would maintain the utmost confidentiality at all times.[8]

2.      Be a good listener - In court, the advocate becomes a mouthpiece of the litigants. Mediation, unlike litigation, provides a platform for the parties to speak up. The parties, especially in family matters, come to the mediation sessions with a lot of emotional baggage. They look upon the mediator as a fetish who would help them unload this baggage by listening and solving their problems. Many people are of the opinion that good communication skills are synonymous with good speaking skills but there is also another side to it which is to be a good listener. In fact, since we have two ears and only one mouth, listening just might be the more important skill.[9] The parties during the session may disclose certain crucial information and thus it makes it very important for the mediator to be a good auditor. Half of the battle is won if the mediator is a good listener.[10]

3.      Legal Knowledge – In India, Mediation has a history as old as the Rig Veda and earlier it existed in the form of the Panchayat system.[11] This particular trait of command of legal knowledge is not necessary for community-mediation but for court assisted and institutional mediation this becomes mandatory. It is a well-established fact that a mediator is having the freedom to choose the procedure that is to be involved during the proceedings, but it should be kept in mind that the procedure adopted should be based on the principles of natural justice and not against the public policy. It is preferable that the mediator is having a law-related background, for example, he/she should be a lawyer or an ex-judge. The mediator is expected to have the basic knowledge about subjects of law such as Contract Law, Personal Laws, and Property Laws, etc. The settlements made among the parties should be such that they would not fall apart once they are tested on the touchstone of law.[12]In India, Mediation Rules, 2003 [13]have laid down a set of compulsory rules that are to be followed by the court-appointed mediators present across the nation.

4.      Promptness and timeliness – Everyone is aware of the ‘tareek pe tareek’ culture in India, the main reason for the formulation of alternate modes of dispute settlement was that the Courts in India are becoming sluggish and slack with every passing day. Cases go on for years and years, in many cases, it was found that the litigant had passed away before the final judgment of the case. The mediation process, unlike the conventional courts, generally have a pre-planned schedule.[14] The mediator in consultation with the parties prepares and schedule slots for the parties as per their time and convenience. A good mediator should try and make sure that time is not wasted in unnecessary and malicious delays, but he should also know when it is imperative to take adjournments. Sometimes it becomes essential to give adjournments, so as to give the parties a proper chance to make strategies, consult the elders, and to bring down their emotional quotient.[15]A mediator is expected to know what is foremost for their clients and should always act in the best interest of the parties. At times, the parties may opt for mediation just to delay the matter and waste the time, a mediator should be able to speculate and judge these ballgames and accordingly respond to it.

5.      Professionalism – According to the Cambridge Dictionary[16], ‘professionalism’ means the combination of all the qualities that are connected with trained and skilled people. In a similar vein, the mediators are required and expected to act like professionals. This starts with dolling up in professional attire. The clients should be in the impression that they are sitting in an actual court where the only thing going on is business.[17] There is a hair-line difference between the expected professionalism in a court and a mediation session and the person who gets this matures into an excellent mediator. Alternatively, overdressing might turn into a disaster, as on many occasions, the parties might not be from a very opulent background, and thus overdressing might ruin the confidence of the parties.[18] Also, professionalism should not be confused to using technical and legal jargons, the mediator should use the terminology and vocabulary which the parties can apprehend and  comprehend, for example, if the parties in the case are not comfortable in communication in English language and even after this the mediator is still using it thinking that it might look unprofessional will be a massive faux pas. Another important aspect of professionalism is giving credit. A mediator should always make sure that due credit is given to all the people who have assisted the parties during the mediation session.[19]

In conclusion, we can say that at the end of the day, even mediators are human beings, and thus possessing all these traits are not practically possible but still, every person in this business should try to infuse these characteristics to be able to give their best. Different contexts require the conscious use of different personal qualities for the best services available in the interest of the users.[20] Also, every dispute is idiosyncratic and we cannot evolve a straight-jacket formula of how to react in a particular situation, but the best thing to do is to provide the mediators with proper instruction and training. Mediation has a lot of scope in India and we have a gold mine of the best mediators in the world and in the future, we can be a Mediation Hub for the world.

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[1]STA Law Firm, Comparative Analysis Of ADR Methods With Focus On Their Advantages And Disadvantages, Mondaq, February 05, 2019, https://www.mondaq.com/arbitration-dispute-resolution/777618/comparative-analysis-of-adr-methods-with-focus-on-their-advantages-and-disadvantages

[2] Cheryl A. Picard, The Many Meanings of Mediation: A Sociological Study of Mediation in Canada‘ (Carleton University, Ottawa, Ontario, 2000).

[3] Serdar Jola Piletića, Podgorica, Basic Principles of Mediation, August 29, 2017, http://www.posredovanje.me/en/posredovanje/osnovna-nacela-posredovanja

[4] Stephen B. Goldberg, Frank E.A. Sander, Nancy H. Rogers & S.R. Cole, Dispute Resolution:

Negotiation, Mediation, and Other Processes (Aspen Law & Business, New York, 3rd Edn.).

[5] Joanne Goss, “An Introduction to Alternative Dispute Resolution”, 34 (1) Alta. L. Rev. 1 (1995) (Can.).

[6] Henry J. Brown and Arthur L. Mariot, ADR Principles and Practice (Sweet & Maxwell, London, 2nd Edn.,1997).

[7] Kimberly Taylor, Esq., Mediation: Confidentiality and Enforceability, JAMS ADR Blog, April 6, 2015, https://www.jamsadr.com/blog/2015/mediation-confidentiality-and-enforceability#:~:text=Mediation%3A%20Confidentiality%20and%20Enforceability%20of%20the%20Process,April%206%2C%202015&text=An%20essential%20element%20of%20a%20successful%20mediation%20is%20confidentiality.&text=A%20mediator%20should%20not%20disclose,rule%20or%20other%20legal%20authority.%E2%80%9D

 

[8] Shraddha Bhosale, Confidentiality in Mediation: An Indian Perspective, Kluwer Mediation Blog, January 18, 2016, http://mediationblog.kluwerarbitration.com/2016/01/18/confidentiality-in-mediation-an-indian-perspective/?doing_wp_cron=1597226022.6561560630798339843750

[9] Nancy Foster, Good Communication Starts With Listening, MediateIndia.com, mediate.com/articles/foster2.cfm

[10] Robert Bolton, People Skills (New York: Simon & Schuster, 1979)

[11] Dr. Pankaj Kakde, Mediation via Panchayat System in India: Ancient to ModernIndian Jurisprudence, Law Beacon, Peer-reviewed, Bi-annual Journal Published by Akola Law College, Vol.1 p.n. 92-96

[12] LaxmiKant Gaur, QUALITIES OF A GOOD MEDIATOR, Delhi district courts e- Journal, https://delhidistrictcourts.nic.in/ejournals/Q_mediation2.pdf

[13] ADR and Mediation Rules, 2003, https://www.latestlaws.com/bare-acts/central-acts-rules/alternative-dispute-resolution-laws/arbitration-and-conciliation-act-1996/adr-mediation-rules2003/

[14] Pon Staff, The Mediation Process and Dispute Resolution: Understand the 6 steps necessary in the mediation process, HARVARD LAW SCHOOL DAILY BLOG, July 7, 2020, https://www.pon.harvard.edu/daily/mediation/dispute-resolution-how-mediation-unfolds/

[15] Supra at 12

[16] Professionalism, Cambridge Dictionary, (10th ed. 2014)

[17] Josefina Rendon, Mediator Ethics and Professionalism: A Recipe for Success, MediateIndia, https://www.mediate.com/articles/RendonJ6.cfm

[18] Ibid

[19] David Jones, The Advantages and Disadvantages of Mediation, Glaisyers, November 8, 2019, https://www.glaisyers.com/advantages-and-disadvantages-of-mediation/

[20] Constantin-Adi Gavrila, 212 qualities of a good mediator, Kluwer Mediation Blog, February 12, 2012, http://mediationblog.kluwerarbitration.com/2012/02/19/212-qualities-of-a-good-mediator/?doing_wp_cron=1597337821.1736419200897216796875