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| Only Joint Meeting...No Caucus |
Mediation is flexible while litigation is not, for litigation is governed under the set pattern given by law. Once I was sitting in a court. I had to conduct proceedings according to law. If it was a civil case, according to the Code of Civil Procedure, 1908. While conducting criminal court,according to Code of Criminal Procedure,1898 and similarly for family cases there is Family Court Act with amendments. The law has to be followed and nobody is above the law even a judge is bound to follow the same be it in statutory form or in form of judicial precedent. There is supposed to be no deciation from the process or procedure of court enshrined in law. It is not a matter of choice of a judge as to what steps to be followed and what to be excluded. In this backdrop, it may very well be concluded that law is rigid in its application.
Now coming towards mediation, it is a flexible process. Mediation has become a statutory concept in Pakistan as previously it was in Section 89-A of Code of Civil Procedure 1908 and now Alternate Dispute Resolution Act has been passed by the Parliament. Procedure of mediation starts with opening statement of mediator and joint meeting leading towards separate meetings/caucus with the parties and then again joint meeting and conclusion of settlement agreement. These concerned laws are just to the effect that matters running in the courts between the parties can be resolved through mediation and other Alternative Dispute Resolution techniques namely conciliation and arbitration and court may refer cases for the same purpose with the consent of litigants. Nowhere in these or any other laws, procedure of mediation has been codified. Process of mediation runs as per juristic guidance and teachings. Yet it is flexible and runs according to the techniques applied by a mediator. To understand my thesis we again need to know what is mediation.
Mediation is settlement of a dispute between two parties with the help of a neutral third person who assists the parties in resolving the same. Mediation is negotiation with addition of a third person may be providing good offices. Though this third person does not has the authority to resolve the dispute by his orders yet he has sufficient power to direct the communication in a particular way. Coming back towards my topic, a neutral third person has to assist the parties in resolving dispute. Mediator adopt various techniques to bring the parties together. They make them at ease to remove communication barriers. They further create a comfortable atmosphere for the parties. They generate options for parties to think and resolve. How these all things are to be done? There is no law governing the same. We have been provided with a lot of reading materials and above all Mediators' Bench Book has also been provided to us. It guides us to conduct mediation proceedings. This post is to share my another experience during mediation proceedings at ADR Center Sargodha.
Practically what happens is that when parties reach ADR Center Sargodha, Administrator of ADR Center Sargodha welcomes them, makes them sit in the waiting room, informs me and I meet them in a joint meeting. I make opening statement and introduce them what it is about and where are they. Sometimes parties are so charged up that they enter my room and start talking. I have to make them relax and start the process. Other times it also happend that they started talking, I listened to both of them for few minutes and then gave my opening statement and then sent them to their separate meeting rooms separate meetings. I conducted separate meetings with them. Separate meetings continued till I felt that I can again sit with them in joint meetings leading to a settlement agreement. It has also been the case that the joint meeting started, parties were so charged up that it ended incomplete and I had to send them to their separate meeting rooms.
An important rule should be kept in mind by mediators. "What is important is that things should go smooth during mediation rather go topsy turvy by strictly observing formalities as to firstly this and secondly that." Being mediators we are the healers of human conflict. In this position we are the situation handlers. We have to asses what mode to adopt according to the circumstances as there is no bar on it. Mediation is flexible.
Above all other situations, an important one I felt and observed and I am writing this post for is that there are situations when we do not need a separate meetings. We just need joint sessions. Like at ADR Center Sargodha, a husband and wife sat before me and started talking. I made them keep quite and start talking one by one. They did so. I then introduced the place and the procedure to them as still people do not know what are ADR Centers. After my complete statement, I observed that they are very relax and complaining to each other very smoothly. I asked the wife what do you want next. She said she wants divorce. I asked husband what do you want next. He said I want to live with her at any cost. I repeated his sentence and asked him do you mean it? His answer was in affirmative. I asked the wife do you have any conditions if you want to give your husband a second chance. Briefly, she described certain conditions out of which mostly were accorded by husband. During this all, I did not feel the need for a separate meeting/caucus. There have been many other instances when I did not go for a separate meeting. One important instance is that of special oath I have discussed in my previous post. In that situation also you do not need a separate meeting. Focal point is that if you conduct a separate meeting in such scene, it may disturb a concluding proceeding and off course wastage of a lot of time.
On the other hand, if there is a wrong assessment on our part that we do not need a separate meeting in this particular mediation proceeding but things are not going near settlement, switch it off to the separate meeting rooms and carry on the rest of the process because mediation is flexible.
Also read:
Separate Meeting/Caucus...Sharing Experience and Generating options
Suggestive role of mediator...Sharing experience and generating options
oath and mediation. Sharing experience and generating options
Yasir Hafeez Awan,
Civil Judge-Accredited Mediator,
ADR Center Sargodha.
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