Mediation, not litigation

[abduarif]

Khandker Dider us Salam

Mediation is the process of solving civil and commercial disputes through a third party who is not a party to the dispute and works impartially to help the parties reach a conclusive and mutually satisfactory agreement.

In mediation, parties voluntarily resolve the dispute and the mediator’s duty is to facilitate the parties but not to judge who is right and who is wrong. The primary duty of a mediator is to identify relevant legal and factual issues and bring those into attention of the parties so as to enable the disputing parties to reach a settlement avoiding legal proceedings. It is the parties who select their mediator.

In England, a joint study on legal practitioners on commercial disputes reveals that at least 60% of them want to solve their disputes through Alternative Dispute Resolution (ADR). The main reason for this is the confidential nature of the ADR mechanisms. Mediation also takes less time and money.

The mediator

In order to become a competent mediator and to conduct the mediation process smoothly, the mediator needs to have certain competencies and skills. If one can apply them very professionally, he will certainly be able to build confidence in the minds of the parties which will enable the parties to reach a solution. Three competencies and skills are essential to conduct a mediation process professionally. They are, relationship skills with the clients, process skills to carry out the mediation process and content skills for closing the mediation with a solution. If anyone understands these skills and also know how to apply these skills properly, he or she will be able to act as a successful mediator. Here are the three competencies for a mediator:

Relationship skills

In order to start a mediation process, it is necessary to create an environment conducive to mediation. It is important to welcome the parties warmly and enthusiastically. Clients must be assured that they are not fighting a legal battle rather they are there to mediate. The mediator must create a comfort zone in order to building confidence in the minds of the clients.

A mediator has to use non-judgmental language and show neutrality in his verbal and non-verbal communications with both the parties. A mediator should treat all the parties to the dispute equally so that his role can never be questioned.

Before the mediation process starts, a mediator needs to take good preparation by studying the dispute and recognising the issue properly. Patient hearing of the parties is a must for the mediator to build confidence in the minds of the parties which will give them the feeling that the mediator actually understands their perspectives and sensitivity. It is also important to deal with the clients in such a manner that they retain the positivity and confidence throughout the process.

Process skills

This is the most technical skill that one must possess in order to be a successful mediator. If a mediator opens the mediation well, it will be easier for him/her to end up with a good outcome. At the beginning of the process, the mediator explains his/her role, responsibilities and procedures to the participants and demonstrates the parties the whole process of mediation. Though there is no prescribed rule or method of conducting a mediation, the mediator may sketch his/her own method of conducting the proceedings. The mediator must keep the clients assured about the confidentiality of their information.

Mediators must avoid asking leading questions to the clients which may create a negative impression in the minds of the clients. It is also necessary to decide whether the mediator will have private meetings with the clients and prepare a schedule of the private meetings and the joint meetings. It is also important to maintain a proper pace so as to keep  compatibility with the events.

Content skills

A mediator must be able to convey his responsibility and the outcome of the mediation process to the parties, be it positive or negative. The mediator should motivate the parties to go with the process and help the clients understand the outcome of the mediation process and take their own decisions.

A mediator must caution the clients about the negative outcome of mediation. This will enable the clients to prompt themselves to reach a positive solution. It is necessary to perform a reality check by asking questions. However, mediators need to be technical while asking hypothetical questions to the parties. It is also crucial to manage information correctly and explore different possible outcomes of the dispute.

Benefits of mediation

A successfully completed mediation has many benefits. In a mediation process, it is possible to reach a solution within a few days and therefore, businesses do not suffer and get interrupted. In our country, legal and preparatory costs are comparatively high. Hence, solving disputes through mediation may save money which can be used in other ventures. One of the principles of mediation is that the mediator does not disclose any facts without the consent of one party to the other party. Therefore, greater confidentiality is ensured. It helps the parties to be safe from unwanted publicity. 

In mediation, parties reach a settlement through dialogue and thus it is possible to continue relationship in the future. Honest discussion with the help of the mediator helps parties to ascertain the actual disagreement and solve it amicably.

Barriers to mediation

Since mediation is a comparatively new concept of ADR process, the main barrier to  mediation is lack of knowledge about the process and the legal practitioners still do not think that this is an acceptable way of resolving disputes. Confusion among the parties as to its acceptability is also a barrier to the process. Though the Arbitration Act has been enacted by the parliament in 2001, mediation in particular is yet to get popularity among disputing parties.

For an ADR mechanism to be successful, especially in mediation proceedings, both the parties must agree to refer the dispute to be settled through mediation. Therefore, the parties must agree to each other otherwise they will have to face an actual litigation. Since no specific rules of procedure have been framed for mediation, the parties have to depend on the rules of mediation determined by a tribunal and the current Arbitration Act, 2001. This lacuna in the system makes ADR an uncertain game.

Lack of awareness regarding the advantages of ADR is another problem and we also do not have the institutional support that has been developed in countries like UK, USA, Singapore and even in India.

According to the Ministry of Law, Justice and Parliamentary Affairs, disposing of  millions of cases pending before the courts in Bangladesh would take at least 86 years if no new cases are filed. The pending cases will not only make the litigants suffer, but will also cause loss to the state.

To reduce the burden on the courts, there is no alternative to ADR mechanisms and, hence, mediation can be an effective tool for popularising the ADR system in our country. Therefore, in order to establish this comparatively new system of ADR, the mediators must establish themselves as not only lawyers but also performers.

Khandker Dider us Salam is an Advocate, Supreme Court of Bangladesh, a CEDR accredited Mediator and a Faculty Member at the Department of Law, Daffodil International University.

Source: http://www.dhakatribune.com/juris/2015/jan/22/mediation-not-litigation#sthash.DuDK0iXA.dpuf

[Ferdousi Begum]

But practically a lawyer did not want to give up the chance of earning money.

[abduarif]

A successful mediator can earn a lot of money, too!

[Ferdousi Begum]

 :)depend on their mentality to do so.