If we want to resolve a dispute through Alternate Dispute Resolution (ADR) techniques and most importantly mediation, we need to understand the ideology behind mediation. Purpose of this article is not to criticize or admire the outcome of dispute resolution processes rather it intends to highlight fittest mode of operating in mediation.
When a dispute arises, same is brought before a court of law where a judge is the presiding officer. There are very rare chances for the parties to speak since the process is controlled by the judge and the parties are under the influence of their lawyers who guide their clients that if they say something, it can make up the mind of the judge against parties. The process of court goes on in a way that the case is put up before the judge through documents, evidences and arguments and the decision of the case is made as per law. A judge is supposed to follow the law and apply the same in deciding a case regardless of the feelings of the parties inter se, about their dispute or about the decision. Parties are bound to accept the decision since court bears the authority of the state as according to jurisprudence, state has two basic functions i.e. war and administration of justice.
As far as Mediation/ADR is concerned, the process is regulated by Mediator. Mediator is a neutral third person of the choice of the parties in dispute. There is no law or rules and regulations governing the process of mediation. It is a flexible process which is run by the mediator according to dispute and the disputants. Parties are seldom accompanied by lawyers and even otherwise mediation is participante. Process starts with introductory session and opening statement of the mediator which is very important in a mediation proceeding because during this first session, mediator has to give the parties an impression that they can share anything and everything by apprising them about the concept of confidentiality. Mediator has to win the confidence of the parties. He has to communicate effectively in order to establish connection and communication between the parties. Mediator has to remove fears from the minds of the parties. Only in this way a mediator can completely explore the dispute and enter the bargaining phase confidently and a settlement can be reached. To adopt these modes and reach a settlement effectively, one thing we the mediators have to learn that is empathy. We also need to learn that sympathy and empathy are two different things.
What is empathy? According to Oxford Dictionary, “empathy is the ability to understand and share the feelings of others.” About the usage Oxford Dictionary says “People often confuse the words empathy and sympathy. Empathy means ‘the ability to understand and share the feelings of another’ (as in both authors have the skill to make you feel empathy with their heroines), whereas sympathy means ‘feelings of pity and sorrow for someone else's misfortune’ (as in they had great sympathy for the flood victims)” According to Martin Hoffman, professor emeritus of psychology at New York University has stated that everyone is born with the feeling of empathy. We can connote empathy as to feel as other person feels meaning thereby when we show empathy, we put ourselves in other person’s shoes and understand his/her position. An empathetic person understands and responds to another person’s mental state and he gives the other person a realization that the former understands him well.
Place of empathy in mediation is pivotal. As discussed in the above paragraph, it is the mediator who runs the process; it is his responsibility to be an empathetic person. In mediation, concept of empathy is twofold i.e. empathy towards the parties and empathy in the parties inter se. I would like to discuss both these dimensions separately.
Empathy towards the parties is a necessity in mediation. A mediator has to ensure the parties that I understand you pain. Our role to mediate is that of negotiator. We have to build communication with the parties firstly and then between the parties. Mediation is the negotiation between the parties with help of mediator in joint or separate meetings. We can win the confidence of the parties easily if we prove to them that we understand what their pain is and what its quantum is. Empathy is to be exercised in separate meeting/caucus and never in a joint meeting as during the joint meeting one party may feel that mediator is taking side of the other. Empathy has to be exercised within a limit. It should also not be mixed with and look like sympathy as sympathy may create a hope and expectation in the mind of one party that the mediator is with me. If one party can feel that mediator is with him, at the same time he/she can feel the other way thereby putting a question mark on our neutrality. There is a term “apathy” which is an antonym of empathy and it means showing lack of concern. If a mediator shows apathy towards the parties, he will lose the task in a spur of moment.
The other dimension is development of empathy between the parties inter se or empathy of parties towards each other. While talking about empathy in mediation, empathy between the parties inter se comes at second number after the first one described in the above paragraph. Once the mediator is done with showing empathy to the parties and is successful in realizing them that he/she understands their issue, then after completion of exploration phase, when he enters bargaining phase, he has to realize the parties individually one by one in separate meetings about the positive attitude of one party towards the other. This is also very sensitive task but if done carefully, may pave the way for a settlement as when a party feels that the other is positive about them or is ready to do this, they also speak out with an open heart.
An important thing to be kept under consideration throughout the process and especially for empathy is that never sacrifice your neutrality.
I started working as mediator on 1st June 2017 in ADR Center Sargodha and at that time I did not know what empathy is all about when I was mediating a matter referred to me by the court. I felt the need to share about the role of empathy. Believe me it works. Share your views and comments.
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