As in my earlier posts, I highlighted various experiences and options for discussion, through this post also I want to throw light on future relationship of the parties in dispute. It sounds a bit strange that the persons who are at variance, can we talk about their future relations?
When a dispute is brought before court of law, the court summons the party/parties. Legal procedure is followed in civil/criminal or family regimes. After following a complete procedure of trial, which may prolong to a year or two, court passes a judgment. A judgment of court of law denominates victory of a party and defeat of the other. Upon such a determination/judgment by court of law, a person who feels defeated or lost the case, approaches appellate forum and files an appeal. Appeal is said to be removal of grievance from a lower judicial forum to a higher judicial forum for determination of the grievance by higher forum. Once the appellate court decides the case, there may be another right of appeal which is right of second appeal or appeal against appellate decision/decree. In civil/criminal/family cases, every judgment order has further options of appeal/review/revision. Appeal and revision are before higher forum while review is before the same forum. It means parties shall keep on fighting the case till the end of their lives or otherwise if they enter into compromise with help of their relatives or respectable people of locality.
Coming towards Alternative Dispute Resolution techniques/mediation, there is no victory or defeat in this. There is always a win/win situation in mediation. This connotes two things. Firstly it is the decision of the parties that prevails and not of the judge so both the parties win their case. Secondly, when both the parties win the case, there is no appeal, review or revision against the decision in mediation. This results in saving of a lot of time, money and energy.
In mediation, parties to the dispute need to negotiate about future relationship. If parties by themselves do not start this issue, mediator should start it with them and ask both of them in joint session or in caucus as seems appropriate to him/her. Why to talk about this? This has many dimensions. To start with, it is essential goodness of human beings to go for compromise and encourage it for general/public good. Dispute is a part of human instinct but the best part is its celebration and resolution through bilateral talk, negotiation or mediation. Humans need peaceful society free of tensions and disturbances. Once things are resolved, position prior to the dispute should be restored for peace. We are judges trained as mediators. As discussed in my earlier posts that we have greater challenges, we have greater responsibility towards the society. That responsibility demands that once we have resolved a dispute, we should encourage parties for cordial relationship.
When to start the discussion about future relationship. Important rule to keep in my is first things first. Main issue between the parties has to be resolved first. According to my humble point of view, last but not the least thing to be discussed in mediation is future relationship of the parties. When the parties have resolved on one solution and it is decided between them, it is pretty much possible that they will keep future relationship with each other. If they agree on a future relationship with each other, fruits of mediation are completely obtained by them. When mediator is doing separate sessions after first joint session or after completing separate session when things are in line and mediator goes for joint session, future relation may be discussed. It may not be talked about too early as to look odd. If the parties do not want to keep a future relationship, they should not be forced for it as to disturb settlement already agreed upon.
We need to understand what is the extent or degree of a future relationship of the parties. Lets say parties are running a business jointly and there occurs a dispute of money for which a cheque is given. That cheque is dishonored resulting into lodging of FIR and parties are referred for mediation. Once, the matter is settled successfully, it should be settled once and for all. Future relationship may be resumption of the business in same or similar terms. Future relationship may be that business is not resumed but personal relationship is continued. Either way it is fruitful for societal good. If business is not resumed, it does not mean future relation is not determined. It is up to the parties to go in any dimension but they should not leave from mediation center with heavy heart at least and they should hug each other and forgive each other's previous conduct.
After successful mediations at Mediation Center Sargodha, I have talked to a number of parties regarding future relationship. Many of the parties in cases of dishonor of cheque Section 489-F Pakistan Penal Code, parties agreed for resumption of future business relationship. In others, they said that there is no more business yet they will keep cordial personal relations with each other and pay greetings to each other. In many of hurt cases and attempt to murder cases, parties agreed to keep cordial relationship with each other as they forgave in the name of Allah. In almost all of the civil cases, parties agreed to maintain a cordial future relationship. In cases of special oath or oath on Holy Quran parties agreed on cordial future relationship.
What I observed was that there is only one category of cases where there is a successful mediation but a future relationship can not be discussed with the parties. These are those family cases in which parties agree for a separation, maintenance allowance and dowry articles. Once there is separation between the parties, both the families do not keep any relations with each other normally. This is our societal temperament and there is nothing to worry about this situation alone. We need to make efforts for determination of at least cordial future relationship of parties after a successful mediation for public good.
What I observed was that there is only one category of cases where there is a successful mediation but a future relationship can not be discussed with the parties. These are those family cases in which parties agree for a separation, maintenance allowance and dowry articles. Once there is separation between the parties, both the families do not keep any relations with each other normally. This is our societal temperament and there is nothing to worry about this situation alone. We need to make efforts for determination of at least cordial future relationship of parties after a successful mediation for public good.
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