Acquiring Skills of Mediation – 1

Special points of interest:

  • Acquire new skills of mediation; if you are already one, improve!
  • Share the technique employed to break the dead lock at the mediation table.
  • Introspect on your performance and seek peer review.

You are among the few in India who have special skills to help others help themselves! By being mediators, you join the bandwagon of experts involved in finding lasting.

Solutions in conflict situations that people find themselves in. It is a movement not merely to complement the services that courts perform but also attempt to do where the courts are not adept at. There are inherently some areas where court interventions could never deliver enduring results. Courts’ dispensation of justice through adversarial approach leaves parties with a feeling for wanting more; thirsting for greater revenge.

As the victor licks blood, the vanquished begins a new diabolical plan to get even. Matrimonial disputes aggravate simmering discontent against each other to gigantic proportions. Commercial litigations distract persons from productive activity and parties end up depleting their resources of money and time that in the ultimate bargain, the winner is a loser and the loser, also a loser. You have been for a long time thinking of increasing your relevance in the judicial system engaged in the work of reducing disputes; lessening the quotient of discontent among litigants who want enduring results. Or, you want to improve your skills as a mediator and obtain greater success in helping people settle. You want to share the experience of your success or find answers why you could not succeed. Maybe, you are not a mediator but as a lawyer you want to find relevance at the mediation session to help your party settle for more. You want to acquire skills as a deft negotiator. Are you are a litigant and you want to know more about how to avail of the services. Here is the perfect platform to showcase your abilities; learn techniques and improve skills. Share your emotions. Write your story. Send photographs. Begin now!

How to Say No

Saying No is a big deal. You are closing an option and taking the discussion to a dead end. But sometimes, it is only way that you protect your interest. How to say it is then a technique if you

want the discussion to go on. Say it between two yeses! You are assisting a party as a lawyer at the mediation session. The father of the child seeks custody of the child from the mother whom you represent. The parents have fallen apart and the proceeding for divorce is pending. Your client, the mother of the child would not want to lose custody. First say, yes and qualify it. Say, yes, you understand that the father has also love for the child. State your position next. No, you will not just give up the child. The third step is, yes, you will consider his request for something lesser, maybe. He may visit the child on some days. Here is the tip: Say Yes to express that you understand his interest. Say no to underscore your position. Say yes to move forward with a proposal.

Test your neutrality

As a mediator, you do not wear the judge’s hat. You will not decide what is right and wrong; what is good or bad. You will, on the other hand, help the party decide what is right for her, what is wrong for him or vice versa; what is either good or bad. At the mediation table, your neutrality is at test at all times: the way you sit; the way you lean to one side; the chair you offer to parties; the time you spend for each party and the tone you employ. At a district mediation centre, there were 4 chairs. The wife had arrived with her parents. The husband had arrived with his brother. The mediator offered the chair to wife and her two parents. The husband’s brother who was elder sat. There was no chair for the husband. The husband did not complain at the mediation session but was standoffish in attitude that he displayed, while the mediation was in progress. He seemed keen to participate in the mediation just before the mediation session began when he met with the mediator outside the hall. The mediator was wondering what had gone wrong. The mediator was surprised when he was called by the district judge the next day to enquire why he had treated a party badly. Just as the mediator was wondering how the judge had any knowledge, the latter produced a letter of complaint by the husband at the mediation session about how the mediator

had insulted him by offering a chair to his father in law and made him stand all the while!

What shall be your response?

The first day’s session concluded and parties had wound up for continuation for the next week. One of the parties seemed hesitant to go out and waited a little. You ask him courteously what was the matter? He asks you if he might have a word with you. As if to allay your fear that he was not trying to ask you for some special favours, he says rather aloud to the hearing of the other side that it was nothing about the day’s proceedings. As you encourage him to continue, even as you were signaling others kindly to move off, the party tells you that he was much impressed with you as a mediator and wants to consult with you for a case which he is presently doing through another lawyer in the High Court. He asks you if he might drop in at your office at your convenience. What shall be your response? Write about what you would do

Cases fit for mediation

What types of cases are suitable for mediation?

  • Family disputes including issues relating to matrimonial relationships and partition;
  • Partnership disputes regarding dissolution and accounting;
  • Intellectual property disputes including patent infringements and trade mark violations
  • Industrial disputes – What disputes are not suitable for mediation?
  • Criminal offences involving women and children that are both not amenable for plea bargaining or for being compounded;
  • Heinous crimes that are offences against state
  • Cases of complaints of forgeries and impersonation

What is your take on government as a party to mediation?

Case Study 1: Wife wanted to give up husband…

On a petition by the wife to the court for annulment of marriage on the ground that the marriage had not been consummated, the husband’s plea was that he was a divorcee with a child aged 5 years and the marriage itself was subsequent to an advertisement issued by him calling for responses only from a person interested in a platonic relationship with willingness to take care of child. The matter had been referred to the mediation centre. The mediator was surprised that the wife had responded to what seemed to be a crazy ad and having gone through a marriage, why she wanted a divorce on the ground of non consummation. At the mediation centre, the woman explained that she believed that her husband would not stick to such a condition and she would win him around to a normal conjugal living. The husband had a justification: he did not want his child to be treated by a step mother who may have a child through him and complicate the life of his child through his 1st wife with a sibling rivalry to cope with and having to suffer the proverbial ill treatment of the step mother. The wife was a college lecturer and the husband was

manager of a public sector bank. Both of them knew what they were doing and not persons who were gullible.

How did the problem get resolved?

What happened to the child?

contd….

Case Study 2: Advise your party

SCT was a big software company in India. It carries out extensive campus recruitments from Engineering colleges across India and spends enormous money on training them at their own academic centre to make them handle complex projects on turnkey software solutions for multinational companies in USA and Europe. Many of the trained personnel go to foreign countries for a period of 1 year, after submitting bonds to serve the company after returning to India, to run their projects at site and train local people to work the programs and fix bugs if need arises. MWE is a US based software company and employs large population of Asians trained in computer software engineering. Training them in US is getting to be a costly proposition and recruiting the persons trained by SCT seems like a viable option, if only it was able to pay up the ‘bond money’ payable to SCT and relieve the trained personnel the obligation to serve at the project sites. MWE was able to poach many employees of SCT this way by carrying out a head

hunt of persons who were at project sites. SCT suffered a great deal to supply substitutes from India for employees who were abandoning the projects. SCT sued in India for an injunction restraining MWE not to induce its employees from breaking the contract and obtained interim injunction. MWE filed an application to vacate the order contending the suit amounted to restraint against trade and hence not maintainable.

If you are a counsel for SCT, how would you take the case forward?  

If you are a counsel for MWE, what will be the options that you will be willing to explore on behalf of your client and what shall be the negotiating points?

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