Mediation is said to be participante. Participante means a person takes part. So the process of mediation is the one in which parties in dispute take part to resolve. They present their own case before the mediator. Parties are themselves the negotiators in front of the mediator who facilitates the negotiations. Purpose of participation of the parties is that parties are themselves masters of their own facts. None other than the parties can themself express what they have gone through.
This post aims to focus one agenda that is how an effective participation can take place. It needs to be deeply understood that it is sheer responsibility of a mediator to reach the outcome of mediation acceptable to both the parties and the same is impossible with participation of the parties. So the mediator in the process plays an important role to enable the parties to express themselves. The process of mediation starts with introductory speech of mediator and joint meeting with the parties. This is the encounter of parties with mediator in which introductions take place and briefly the matter is put before mediator and parties inter se. This first encounter is important for mediator to observe the parties and make up his mind as to how he will lead the way to successful settlement.
In Pakistan the concept of mediation is evolving with passage of time and now the legislature has passed the laws exclusively for Alternate Dispute Resolution techniques specially negotiation, conciliation, mediation and for arbitration already the law was available. The model of mediation adopted in province of Punjab under the vision of Honorable Chief Justice Lahore High Court Mr Justice Syed Mansoor Ali Shah is court governed mediation. Apart from this model, already private mediation is going on particularly in private sector and in many organizations, commercial disputes are being resolved through mediation. Wherever there is private mediation going on, its institution is under governance of the that private organization or the parties to be more specific. Parties already know as to what is mediation and who is their mediator. Now coming back to court governed mediation, parties who are referred to mediation centers do not know about mediation except very few persons and judges are trained as mediators to perform their functions. Responsibilities of mediators in court governed mediation are greater. In this regard I narrate a few notable points:
There are many other points which may be numbered above but while considering the purpose of this post I curtail myself to this. One important rule to be kept in mind always is "make them as much comfortable as possible". While focusing that parties are sitting before a person who is from among themselves, we have to mould our language according to their language because many people appearing before us can not speak or understand urdu or english language. In some cases we may dress up in our national dresses that is shalwar qameez with a waistcoat which may look more like a local person since we are allowed according to policy to wear coloured dresses and not the uniform of judges. This will give the parties a comfortable atmosphere and they will be able to communicate confidently.
Many a times it happened before me that once I complete my opening statement and asked one party to start, he/she could not speak. I again spoke to them in punjabi language and asked them to start and they started easily. Many a persons started shivering while talking in the first joint session and they had to gulp again and again and I had to make them comfortable again and to give them a go. Practically I can quote many situations where I found out a communication gap but when it is settled, parties sail smoothly participate in the process.
Now proceeding ahead in fact finding, during and after first joint meeting, participation of the parties is pivotal. We can not peel the onion without giving comfortable atmosphere and confidence to the parties. When they believe us on above mentioned terms, they speak to us on equal levels and in order to participate in the process, they explain each and everything to us. On the other hand if we can not peel the onion and we still do not know the complete facts of the dispute, entering into the bargaining phase is like a path having no destination and we move forward and backward in search of destination.
In the end, there are two reactions when a person loses confidence. In the first case he/she is not able to speak while in the second one, he/she starts talking too much without any pauses. We have to observe if the communication is not smooth that where does the problem lie. Identifying the problem or barrier in communication is our responsibility. Empathy is basis of mediation. Mediators are effective communicators and negotiators. We have to make the parties understand that we actually feel their problem and we have to support and encourage them to participate in order to reach a successful settlement.
Yasir Hafeez Awan,
Civil Judge-Accredited Mediator,
ADR Center Sargodha.
This post aims to focus one agenda that is how an effective participation can take place. It needs to be deeply understood that it is sheer responsibility of a mediator to reach the outcome of mediation acceptable to both the parties and the same is impossible with participation of the parties. So the mediator in the process plays an important role to enable the parties to express themselves. The process of mediation starts with introductory speech of mediator and joint meeting with the parties. This is the encounter of parties with mediator in which introductions take place and briefly the matter is put before mediator and parties inter se. This first encounter is important for mediator to observe the parties and make up his mind as to how he will lead the way to successful settlement.
In Pakistan the concept of mediation is evolving with passage of time and now the legislature has passed the laws exclusively for Alternate Dispute Resolution techniques specially negotiation, conciliation, mediation and for arbitration already the law was available. The model of mediation adopted in province of Punjab under the vision of Honorable Chief Justice Lahore High Court Mr Justice Syed Mansoor Ali Shah is court governed mediation. Apart from this model, already private mediation is going on particularly in private sector and in many organizations, commercial disputes are being resolved through mediation. Wherever there is private mediation going on, its institution is under governance of the that private organization or the parties to be more specific. Parties already know as to what is mediation and who is their mediator. Now coming back to court governed mediation, parties who are referred to mediation centers do not know about mediation except very few persons and judges are trained as mediators to perform their functions. Responsibilities of mediators in court governed mediation are greater. In this regard I narrate a few notable points:
- Litigants do not know about ADR techniques and mediation and they do not know that dispute may be resolved effectively through the processes other than court proceedings.
- Due to above narration at no.1, parties do not know how to behave in mediation. They sometimes feel being before a judge and sometimes confuse it with arbitrator.
- Disputes are being resolved through legal system and in court of law where there are lawyers and their clerks who facilitate and protect their clients and speak for them in courts to the judge or the staff. Due to this scenario, litigants seldom know the way to express themselves or put up their matter before the mediator.
- There is lack of education in the society and the stake holders in a dispute, making suggestions to the litigants also guide litigants in a wrong manner.
- Sometimes there is ego which is very strong and a party wants to drag the other into litigation for a maximum period.
- They are in safe hands before a neutral person who is a judge but sitting as a mediator before them.
- They can speak and express themselves.
- They can say whatever they want to and it will be confidential and will not be disclosed to the other party.
- Whatever expressed can not be used in evidence against them in the court of law if the process fails.
- If the process fails, court can not ask them about what they said in the court.
- The mediator can not be called in the dock regarding mediation proceedings.
- This process is a lot more beneficial for them as compared to litigation.
- There is no benefit of mediator if the process fails or succeeds.
- They are sitting before a person who is from among themselves.
There are many other points which may be numbered above but while considering the purpose of this post I curtail myself to this. One important rule to be kept in mind always is "make them as much comfortable as possible". While focusing that parties are sitting before a person who is from among themselves, we have to mould our language according to their language because many people appearing before us can not speak or understand urdu or english language. In some cases we may dress up in our national dresses that is shalwar qameez with a waistcoat which may look more like a local person since we are allowed according to policy to wear coloured dresses and not the uniform of judges. This will give the parties a comfortable atmosphere and they will be able to communicate confidently.
Many a times it happened before me that once I complete my opening statement and asked one party to start, he/she could not speak. I again spoke to them in punjabi language and asked them to start and they started easily. Many a persons started shivering while talking in the first joint session and they had to gulp again and again and I had to make them comfortable again and to give them a go. Practically I can quote many situations where I found out a communication gap but when it is settled, parties sail smoothly participate in the process.
Now proceeding ahead in fact finding, during and after first joint meeting, participation of the parties is pivotal. We can not peel the onion without giving comfortable atmosphere and confidence to the parties. When they believe us on above mentioned terms, they speak to us on equal levels and in order to participate in the process, they explain each and everything to us. On the other hand if we can not peel the onion and we still do not know the complete facts of the dispute, entering into the bargaining phase is like a path having no destination and we move forward and backward in search of destination.
In the end, there are two reactions when a person loses confidence. In the first case he/she is not able to speak while in the second one, he/she starts talking too much without any pauses. We have to observe if the communication is not smooth that where does the problem lie. Identifying the problem or barrier in communication is our responsibility. Empathy is basis of mediation. Mediators are effective communicators and negotiators. We have to make the parties understand that we actually feel their problem and we have to support and encourage them to participate in order to reach a successful settlement.
Yasir Hafeez Awan,
Civil Judge-Accredited Mediator,
ADR Center Sargodha.
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