Epistemologies of mediation

"Look and you will find it – what is unsought will go undetected." These lines of the great Greek tragic playwright Sophocles depict disillusionment among people insofar as adversarial system of decision making by the courts is concerned. Conflict is an inevitable part of our everyday lives, occurring wherever interpersonal and professional interactions take place. Over the years, the legal profession has undergone a tremendous change, and this change has been accelerated at a faster pace in the last few years. The methods used to manage conflict have also seen an evolution. Mediation, as one form of Alternate Dispute Resolution (ADR), has proved to be effective in lending itself to steer parties from the metaphorical crossings of swords to the uncrossing.

While education has played a role in shaping the law and the profession, the main reason for the legal processes changing by leaps and bounds is globalization. Though the world is marching towards a unique oneness of a globalized interdependence, justice to the people of the country is the primary aim of each nation. Alan Simpson aptly puts that, "the Law is often thought of as being the guardian of our liberties, and rightly so". This is to suggest that adjudication and facilitation stem from the same tree and flow in the same water.

No doubt, judicial systems, in all civilized countries, are set up for resolving the conflicts between the parties. The judges are given the task of deciding the cases which are filed in the courts. However, there has been some disillusionment among people insofar as adversarial system of decision making by the courts is concerned. In the first instance, resolution of disputes through the court system may not be speedy. Over a period, it is becoming expensive as well. Secondly, many times adversarial system is perceived as unpredictable and coercive in nature.

This whole process of the conflict resolution gets very easy when we walk in the resolution mechanism through a process called synergy. Synergy occurs when one plus one equals ten, one hundred, or even a thousand! It is the powerful result of two or more respectable human beings deciding together to go beyond their preconceived notions in order to confront a major challenge. It's about the passion, energy, innovation, and thrill of creating a new world that is far superior than the old one.

Compromise is not synonymous with synergy. One plus one equals one and a half as a compromise. Everyone has a setback. Synergy is more than merely resolving a disagreement. We transcend conflict when we reach synergy. We go beyond it to create something new that stimulates everyone with new possibilities and transforms the future. Synergy is better than my way or your way. It's our way. And this 'our way' is the core philosophy of mediation. On a psychological level, parties in mediation typically move through a cycle of narcissistic inflation, deflation, and then, hopefully, realistic resolution which we can call as the IDR cycle.

Robert Frost once observed that, "a successful lawsuit is the one worn by a policeman". Stephen R Covey and Larry M Boyle add to this in their book, 'The 3rd Alternative and the Law', by posing a question, "Is it possible that 3rd Alternative thinking could revolutionise the practise of law, even if the client is powerful and demanding?" The answer is yes, and to some extent, that is already happening. The increasing expansion of ADR in many countries, government agencies, and corporations, in which people meet with a mediator or arbitrator instead of going to court, is one encouraging sign. "Mediation is now totally married to the law and integrated into the legal system", says noted professional mediator Peter Adler. In one of its recent judgments, the Supreme Court of India ruled that pre-institution mediation under Section 12A of the Commercial Courts Act is mandatory and suites which are filed violating this will be rejected. This might be an excellent approach to reduce the pressures and stressors associated with going to court.

In comparison to a lawsuit, an ADR method to conflict resolution can deliver considerably better, faster, and less expensive solutions with significantly less wear and tear on the parties. Mediation is the most similar to synergy among ADR techniques. Mediators are typically more concerned with how to solve the problem than with who wins or loses. They also strive hard to keep the relationship between disputants intact. A skilled mediator may transform a contentious divorce into a viable agreement in which parties can go on with their lives while cooperating on child custody, property distribution, and other issues. How we admire and applaud mediators' efforts and enormous good influence!

In his forward to the book, 'Mediation: Policy & Practice', Justice Sanjay Kishan Kaul eloquently observed that the promise and potential of mediation can be attributed to its intrinsic characteristics of self-determination, violation, neutrality, confidentiality and efficiency. Mediation, along with other mechanisms of ADR, facilitates solution finding whilst avoiding the costs, risks and injuries of the more traditional form of legal combat. We have to appreciate that India is at an exciting juncture, having become signatory to the Singapore Convention on Mediation in 2019 and we can expect and look forward to legislations which recognise cross-border and local mediation settlements.

This development will be vital in boosting public perception, securing mediation a position within the mainstream and putting India on the map as a destination for ADR. The past few years of the pandemic have been a lesson in adaptability and the perseverance of the human spirit as we have grappled with coronavirus. It has brought to the fore the shared affliction of uncertainty that we all have been facing and this in turn has highlighted the needs for constructive and collective problem solving. As all the legal systems around the world are adapting to a decidedly new order to maintain access to justice, innovative thinking in dispute resolution has become the need of the hour. We must today, more than ever, move past our default adversarial attitudes and inculcate a culture and mindset which stops to think, 'is there a better way?'.

An early proponent of ADR, attorney and mediator Thomas Boyle stated of mediation, "Like a peace tent on the battlefield, it unites the parties in pursuit of a settlement." However, without these three paradigms of 3rd Alternative thinking, ADR frequently ends up masquerading as litigation; by itself, ADR has no strength to overcome entrenched paradigms of disrespect and defensiveness. ADR is in the business of creating fair, just, and equitable solutions, but this does not always lead to synergy. "Too frequently, the shared ideals and practices that appear to connect us together turn out to be superficial yearnings rather than actual common ground," Peter Adler writes of ADR's limitations. Synergy is all about finding "true common ground", which necessitates a fundamental paradigm shift. It's about breaking free from the mindsets of competitiveness and compromise and adopting the mindset of finding the alternative.

Views expressed are personal