While working on ADR Center Sargodha as a mediator I share my experience regarding conduct of mediation proceedings like my earlier post on "Special oath and Mediation" on the link given below.
https://awanyasirhafeez.blogspot.com/2017/11/oath-and-mediationsharing-experience.html
Generally a mediator is a neutral person who assists the parties in dispute to reach a workable solution acceptable to both. While doing this, a mediator makes the communication easier and smooth. He is a facilitator in negotiations and not a judge of the case but at the same time mediator generates options for the parties to chose and resolve the conflict. Mediator is always optimist as he celebrates the differences and a pessimist person can never be a successful mediator as a dispute can easily block the thought process of a pessimist.
The model of mediation introduced in Punjab by Honorable Chief Justice Lahore High Court Lahore Mr Justice Syed Mansoor Ali Shah gives mediation governed by court in which a judge has been trained and accredited as mediator. The office of judge carries with it the element of neutrality and earns a huge respect by society.
I remember while undergoing training of ADR at Punjab Judicial Academy, on the last day activity, I was conducting mediation when I put a suggestion to a party. It was instructed to us that success or failure of mediation does not matter rather what matters is a participant shows mediation skills during mock activity. I put the suggestion to the party and the party accepted the same in the mock activity. In the debrief session, instructor asked me why did you put the suggestion to a party and I had no answer to it. The instructor said to me that you as a judge/mediator can put suggestion but generally a mediator does not suggest the parties. If a mediator puts suggestions to a party, his impartiality is at stake. Furthermore, the party to whom you suggest may think that you are not keeping confidentiality and like wise you may be suggesting the other party as well. Mediation process may be very simple and a mediator may make it complicated by suggesting. It may also happen that if you suggest a party and he does not accept that suggestion, the party starts relying on you to suggest more or make the decision. These were to some extent my experiences during mediation which I had to cover up by removing the dents from the minds of the parties at variance.
I observed that we the judges accredited as mediators by Punjab Judicial Academy and Pakistan Mediators Association are in a sound position to influence the mind of an ordinary citizen and likewise we can suggest them the resolution but in suitable cases. We can show them various prospects of their case according to law and their approach towards the dispute and resolution. We can do reality test in much better way as compared to others because we know the law and we have been working as judges. Now coming towards suitable cases, we need to take care of the fears mentioned in the above paragraph. That is to say, we can never risk our neutrality. We can not give the parties an impression that we are the judges in their case or we will decide the case because in this way, we will lose our role of mediators and even the parties may deviate from the compromise once they appear before the referring court after completion of the compromise. We have to assure them that they will decide the outcome. We have to take care of this aspect also that we are not going to advice them as their legal counsel.
Another important rule is "first things first". While conducting mediation proceedings, this principle is very important. There are six accused persons in a case. We are in a caucus with accused party. Things may easily jumble up when we turn to suggestive mode. So the mediator has to make parties at ease and facilitate the communication after putting any suggestion. Mediator has to address the jumbled up conversation and make the parties sail smoothly to work on the suggestion and find out the resolve by realizing them that it will be your decision. Conduct of separate meeting/caucus will be discussed in later posts which shall also be helpful for suggestive mode.
Time for adopting suggestive mode also matters a lot. Parties appearing before us can be observed in two aspects i.e. mind and body language. A good mediator must observe situational formalities in communication as well as he must be a good observer and mind reader. We need to focus as much as possible. To my mind, making suggesting at the end of exploration phase and before the start of bargaining phase is the right time for the parties to brainstorm and find the resolve for their dispute. So we can put suggestion at the end of exploration phase.
In the end, we need to keep this in mind that without complete exploration of the facts of dispute, we can not make a suggestion. We have to peel the onion completely and know every petty thing to reach the successful mediation.
Yasir Hafeez Awan
Civil Judge-Accredited Mediator,
ADR Center Sargodha.
Also Read:
https://awanyasirhafeez.blogspot.com/2017/11/oath-and-mediationsharing-experience.html
https://awanyasirhafeez.blogspot.com/2017/12/separate-meetingscaucussharing.html
https://awanyasirhafeez.blogspot.com/2017/12/i-do-not-need-separate-meetingcaucus.html
https://awanyasirhafeez.blogspot.com/2017/11/oath-and-mediationsharing-experience.html
Generally a mediator is a neutral person who assists the parties in dispute to reach a workable solution acceptable to both. While doing this, a mediator makes the communication easier and smooth. He is a facilitator in negotiations and not a judge of the case but at the same time mediator generates options for the parties to chose and resolve the conflict. Mediator is always optimist as he celebrates the differences and a pessimist person can never be a successful mediator as a dispute can easily block the thought process of a pessimist.
The model of mediation introduced in Punjab by Honorable Chief Justice Lahore High Court Lahore Mr Justice Syed Mansoor Ali Shah gives mediation governed by court in which a judge has been trained and accredited as mediator. The office of judge carries with it the element of neutrality and earns a huge respect by society.
I remember while undergoing training of ADR at Punjab Judicial Academy, on the last day activity, I was conducting mediation when I put a suggestion to a party. It was instructed to us that success or failure of mediation does not matter rather what matters is a participant shows mediation skills during mock activity. I put the suggestion to the party and the party accepted the same in the mock activity. In the debrief session, instructor asked me why did you put the suggestion to a party and I had no answer to it. The instructor said to me that you as a judge/mediator can put suggestion but generally a mediator does not suggest the parties. If a mediator puts suggestions to a party, his impartiality is at stake. Furthermore, the party to whom you suggest may think that you are not keeping confidentiality and like wise you may be suggesting the other party as well. Mediation process may be very simple and a mediator may make it complicated by suggesting. It may also happen that if you suggest a party and he does not accept that suggestion, the party starts relying on you to suggest more or make the decision. These were to some extent my experiences during mediation which I had to cover up by removing the dents from the minds of the parties at variance.
I observed that we the judges accredited as mediators by Punjab Judicial Academy and Pakistan Mediators Association are in a sound position to influence the mind of an ordinary citizen and likewise we can suggest them the resolution but in suitable cases. We can show them various prospects of their case according to law and their approach towards the dispute and resolution. We can do reality test in much better way as compared to others because we know the law and we have been working as judges. Now coming towards suitable cases, we need to take care of the fears mentioned in the above paragraph. That is to say, we can never risk our neutrality. We can not give the parties an impression that we are the judges in their case or we will decide the case because in this way, we will lose our role of mediators and even the parties may deviate from the compromise once they appear before the referring court after completion of the compromise. We have to assure them that they will decide the outcome. We have to take care of this aspect also that we are not going to advice them as their legal counsel.
Another important rule is "first things first". While conducting mediation proceedings, this principle is very important. There are six accused persons in a case. We are in a caucus with accused party. Things may easily jumble up when we turn to suggestive mode. So the mediator has to make parties at ease and facilitate the communication after putting any suggestion. Mediator has to address the jumbled up conversation and make the parties sail smoothly to work on the suggestion and find out the resolve by realizing them that it will be your decision. Conduct of separate meeting/caucus will be discussed in later posts which shall also be helpful for suggestive mode.
Time for adopting suggestive mode also matters a lot. Parties appearing before us can be observed in two aspects i.e. mind and body language. A good mediator must observe situational formalities in communication as well as he must be a good observer and mind reader. We need to focus as much as possible. To my mind, making suggesting at the end of exploration phase and before the start of bargaining phase is the right time for the parties to brainstorm and find the resolve for their dispute. So we can put suggestion at the end of exploration phase.
In the end, we need to keep this in mind that without complete exploration of the facts of dispute, we can not make a suggestion. We have to peel the onion completely and know every petty thing to reach the successful mediation.
Yasir Hafeez Awan
Civil Judge-Accredited Mediator,
ADR Center Sargodha.
Also Read:
https://awanyasirhafeez.blogspot.com/2017/11/oath-and-mediationsharing-experience.html
https://awanyasirhafeez.blogspot.com/2017/12/separate-meetingscaucussharing.html
https://awanyasirhafeez.blogspot.com/2017/12/i-do-not-need-separate-meetingcaucus.html
No comments:
Post a Comment