Acquiring Skills of Mediation – 2

Special points of interest:

  • If you are a mediator, learn the techniques here.
  • If you a litigant, get to know how to optimize your results with the help of the mediator.
  • If you want to know how the problems gets resolved, follow the stories.
  • If you have no faith in ADR formulations, get you doubts busted.

The 4 Phases of Mediation

First Phase

The party who has come to mediation is most probably referred by court for exploring possibilities of settlement. The first contact must be refreshingly different. The party must experience at first hand the informal ambience that ought to be the hallmark of the mediation centre. Offer her coffee or tea. Ask if she has any particular health concerns that might require any special attention. Congratulate the party that she has arrived at the right place where she will surely find her answer to the problems. Disclose your own credentials as a mediator giving details of your experience and your own present work as different from your occupation as a lawyer. Assure the party that she can call to her assistance her own lawyer and will consult her at all times before a final decision is taken. Have a check list of all the introductory remarks that you will make that ought to include the voluntary nature of the deliberations, the liberty to the party to withdraw from negotiation, the con- fidentiality of the deliberations and the important difference of the non adversarial approach to finding an amicable settlement. It will be appropriate to even suggest that time and money which are casualties in court proceedings will be best spared in the mediation.

How to make mediation work for you

You are a party seeking for a solution. How do you max the outcome of a mediation session:

  • Ask your mediator for his opinion at the private session called as caucus :Although you are under no obligation to accept his advice, recognise that his private conversations with the other side may have given him considerable knowledge about the other side’s interests. Taking advantage of that knowledge may lead to a settlement. Suppose, the builder has not delivered the building on time. You are making a claim for damages. You have claimed 5 lacs as damages. Before putting it to other, ask the mediator what he thinks about it. Probably, the other side has informed him that you were staying in another apartment you owned and you had let it out on rent and secured Rs 20000 per month as rent. The builder has delayed delivery by 12 months. If the mediator suggests 3 lacs, he bases the assessment on what you would have earned and what you have lost by the delay. You may even scale it down to Rs 2,40,000, after putting across the amount suggested by the mediator.
  • Give the mediator an idea that makes it seem like that it is his idea to the other side: Suppose, you are the builder and had caused the delay. Suggest to the mediator if he may put through a suggestion that you might be prepared to find a tenant for the person who has claimed damages and waive any claim for brokerage and also waive the maintenance charges for the first year, which you are otherwise entitled to claim from other occupants, as per the building contract.
  • Take a reality check: How will the other side take it? If this suggestion were to come in court, will the court accept it? Claims for damages have a sure way of reckoning and you may take counsel from your own lawyer or the mediator what the amount is likely to be.

Dealing with a hard bargainer

You may encounter sometimes parties who are tough on bargaining; persons that take hardened, inflexible stand; persons who end their statements as they begin, ‘Thus far – no further ‘types.

Remember the mediator has a job cut out. The first attitude is not to be judgmental to condescendingly suggest that there is nothing that could be done if the posturing is tough and mediation could succeed only on a policy of give and take. The technique is making the parties realize it without expressly saying.

The tough persons may begin to show impatience from the very beginning and make an opening statement that he does not have much time to waste. He cannot keep bargaining back and forth. It is best for you as a mediator to respond that you recognize his value for time and suggest that a time line ought not to be a problem and you are interested in eliciting the best proposals from both the parties within the shortest time.

The person may be worried about several constraints that operate. Maybe, he has to take the consent of someone else; maybe his boss has set a resource constraint; maybe his parents will not agree to the suggestion. Use the caucus to elicit the constraints if any and see how other’s views could be accommodated in the talks and your honest view of such a course. It will assure the party of you  earnestness in engagement.

Perhaps, he has certain hidden interests that he is not prepared to reveal. Make a calculated guess and drop a hint in your dialogue that you understand his interests and show a way of how you will meet his hidden interest.

Is he offended about the opening offer of the other party? There is nothing wrong in asking the person directly what he thought about the offer and let the other party realise that talks must take a different turn. Allow the party making the first proposal explain why he made proposal that he did and the basis for such a proposal.

Keep a record of proposals and counter proposals and identify the best offer or counter that the parties have made. The hard bargainer that the party is, he will realize that you are keeping track of all suggestions and there is no room for flippancy.

Don’t be in a hurry to close. No party is prepared to quit easy. Make the party believe that the parties have the capacity to generate their own solutions. Ask the party if he will think over and return after a week or two. Best chances are that he is mellowed the next time when he turns up.

Ehtics

We asked you what if a party at the mediation session that is mid-way asks at the end of the first day if you would professionally assist him in a case pending in the court. The answer is no. Even if the professional engagement is in respect of a case which is not connected with the problem discussed between the parties, you will compromise on your neutrality by agreeing to assist him in some other case. Itt is however important not to cold shoulder his earnest appreciation, even if it was not motivated. Explain the ethical issue involved about how it may affect the confidence of the other party and it is best left to help himself. It makes sense not to even suggest any other professional that you may know intimately for that will lead to the risk of the party coming back to you with details of the advice that he got from your friend and involve you distantly. Ensure that the other party is not kept guessing on how you responded to the party’s query. Allay all types of apprehensions by honest disclosure of the conversation so that the talks take an even course.

Case Study 1: Wife wanted to give up husband (contd.)

The lady had given her name as Swehta Tandon. The mediator asked her at the caucus what she knew about the social behaviour of her husband. She told him that had very few friends but if she had known him at all, she knew that he was close with only one colleague Mr. Mohan at the bank. That friend has come home but just only once.

What is the nature of bonding between father and the child, the mediator prodded. The lady informed that the boy is playful with his father and sticks to his father all the time when he is at home. He sleeps in the same bed with his father and she sleeps in another room. ‘Have you tried swapping places with the child?’ asked the mediator. ‘It is a big no, no, from both the father and son’, she said. ‘How does the child treat you?’ the mediator continued.

‘Initially, he was very reticent. Now, he opens up and speaks about one Laila as his closest friend in his kindergarten class with excitement. He says that she looks like me!’ At the separate meeting with the husband, the mediator asked the husband if he felt comfortable about the way he persisted with his matrimonial living with his wife. ‘Is sex the only thing in life?’ he snapped. The mediator asked mildly keeping his tone low, ‘Is it bad?’ ‘No, is that not what she willingly accepted?’ he queried. ‘But, you did not deny to your first wife, did you?’.

The husband seemed irritated. ‘Why do you bring in my life with the first wife? It is all over now. Swehta has a home now. She has a child that loves her. I don’t want her money. She can keep all her earnings herself. What else does she want? Why will she bring the issue which was settled as marriage precondition? To me, the child’s welfare is paramount’, Tandon said all at one go.

At a joint meeting again, the mediator asked them if the child would come the next time. Swehta remonstrated. ‘Bharath is too young to be involved in an adult talk’. Tandon said, ‘The boy does not even know that we have differences!’ The mediator teased in good humour, ‘should you not know who is the child’s preference among the two of you?’

Both of them were protective about their respective positions. I have no problem about the child coming, said Swehta first. Tandon also agreed, as he was preparing to leave. ‘We will see next week Monday at 4 pm.’ The mediator got up from the seat and accompanied the couple up to the door, as the two were leaving. Did the child have any role at the mediation session? Did the mediator overdo his role?

Government as a party in mediation

To be realistic, government who is a major litigant cannot be easily brought to the mediation table. The nature of dispute involving government is seldom amenable for a negotiated settlement. It is never easy for a person acting as a representative of the government to give concessions or scale up demands without involving other persons higher up in the administrative hierarchy.

The person in top echelon may never have time to spare at the mediation session. Of the subjects that could still be explored for settlement, determination of compensation for land acquisi tion could be an ideal subject but it will be better to resort to a more formal court like setting, such as Lok Adalat to make the assessment. This is one of the areas where mediation may not help. Have you had any luck with government as a party?

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