Mediation is a flexible process. Role
of a mediator is to facilitate communication and things should keep on going
unless and until a final settlement is reached. To attain this objective,
mediator applies various techniques being a healer of a conflict. Mediator
finds out the point in a dispute where it is possible to click and sort out.
Process of mediation starts with the joint meeting and opening statement of
mediator followed by separate meetings with each of the parties. This post will
focus on one particular aspect I observed during separate meetings with the
parties at ADR Center Sargodha. Off course my observation is based on
experience I had after attaining the objective highlighted above i.e. a
successful mediation or at least making things clear or closer to an end.
During training at Punjab Judicial
Academy, at a mock activity, I conducted a separate meeting with two brothers.
At the debrief, instructor asked me that why I conducted separate meeting of
two persons at once. I got confused. He further proceeded as to what I had in
my mind while doing this. I had no answer. Then the instructor guided me that I
could meet those two brothers separately. Once I was conducting mediation
proceeding in which there were six persons from accused party. In another civil
case relating to land there were three sisters on one side or two sisters on
one side. I usually take a brain storming session of 5 minutes between the gaps
of meetings when a question hit my mind that Why am I conducting caucus with
six persons of one side together? May be they have different stakes due to
which they do not want to follow the same plan. They may be hiding from each
other what they wish. I thought to change my approach. I conducted separate meetings with each of the brothers separately in which they revealed that their other brothers of the same party had different interests due to which there is no chance of settlement. It was further revealed that one of his brothers wanted to drag other party in litigation for no reason.
There is a simple but practical rule to be kept in mind. It is that "everyone is master of his/her own stakes" Yes that is true and that has to be kept in mind by a mediator while proceeding with a case in which there are various persons in one party. To my mind, mediation is not only win/win situation parties inter se rather it is has to be a win/win situation between the members of each of the parties as well. One person should not be feeling that in one party side he sacrificed something and others won as it may create trouble and that particular person will be an obstacle on way of a practical settlement.
We at ADR Centers receive references from civil, criminal and family courts generally. This discussion on one particular aspect of caucus/private meeting may be helpful and relevant for civil and criminal cases. In civil cases, there may be several persons claiming property from one side party. There may be a business dispute between partners in a partnership firm and two of the partners are on one side in a reference. Likewise other illustrations may be set out. In criminal cases, there may be more than one accused person on one side party. There may be more than one injured person on the side of complainant party. In family cases generally this situation may not arise.
What I observed is that
before conducting caucus in such a case, do brain storming for five minutes and
jot down the points on your notepad to discuss number-wise. Categorize the role
of each of those persons in that dispute. Secondly, meet those persons
separately after analyzing their aptitude in the joint meeting or after meeting
them collectively for once in separate meeting and afterwards change the mode to three-three or
two-four or one-five equations. In such scenario, may be one person is
separated from the others who wills a settlement and he can give you further
clues as to the other persons or parties easier to be convinced for a
settlement. On the other hand that odd one may be figured out who does not want to settle things this way, so, after knowing his issues, we can mold the process so as to sail smoothly towards a workable solution.
Observations and comments by mediators are awaited...
Judge Yasir Hafeez Awan,
Civil Judge-Accredited Mediator,
ADR Center, Sargodha.
Observations and comments by mediators are awaited...
Judge Yasir Hafeez Awan,
Civil Judge-Accredited Mediator,
ADR Center, Sargodha.
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