"An ounce of mediation is worth a pound of arbitration and a ton of litigation" - Joseph Grynbaum Negotiation, in its various forms, has existed before recorded history. Lawyers, business people, and others have used negotiation to resolve disputes. Good negotiation skills can help resolve most types of disputes and with training, anyone can become a more effective negotiator in a...
"An ounce of mediation is worth a pound of arbitration and a ton of litigation" - Joseph Grynbaum
Negotiation, in its various forms, has existed before recorded history. Lawyers, business people, and others have used negotiation to resolve disputes. Good negotiation skills can help resolve most types of disputes and with training, anyone can become a more effective negotiator in a wide range of disputes as Negotiation theory and practices are well defined. Mediation is assisted or guided negotiation. The mediation process uses negotiation techniques by introducing a neutral third party, who assists disputants in finding a mutually acceptable solution to their conflicts. Mediation doesn't aim to decide right or wrong. Nor does it aim to declare victor or vanquished. The process of Mediation ensures the good of the people and betterment of the community. It brings existing disputes and conflicts between disputants to an end in a rational and comprehensive manner and thus serves the larger interests of peace and harmony in society. Simply put, Mediation attempts to find out the positive side of conflicts and makes use of such positives to find opportunities for resolution. Conflicts dissolve and consensus emerges as a natural result of mutual working through the conflicts. The essence of Mediation lies in free and fair negotiation between parties where the mediator keeps the dialogues less bitter and the settlement fairer. With mutual empathy and understanding of each other's situations, there is maximization of choices available for settlements for both the sides. Even though mediation has been an integral part of our culture for centuries, we are rediscovering it with every new challenge in a fast-changing society in many ways – legislatively, judicially, and socially. But most of all, we rediscover it each time each time a disputant uses his or her right of self-determination to find peaceful resolution with his or her opponent. (Manual of the Mediation and Conciliation Centre, High Court of Jammu & Kashmir (Masalihat) on the Theory and Practice of Mediation).
The Mediation and Conciliation Committee, High Court of Jammu & Kashmir (Masalihat) organized Phase II Online Mediation Training Programme for Judicial Officers and Lawyers of the Union Territories of Jammu & Kashmir and Ladakh on 2nd July, 2020 to 4th July, 2020 (3 PM to 6 PM), 9th July, 2020 to 11th July, 2020 (3 PM to 6 PM), and 16th July to 18th July, 2020 (3 PM to 6 PM). In view of the COVID-19 pandemic, the programme was not possible to be conducted physically and hence, it was conducted through virtual mode. The Judicial Officers and Lawyers had already been part of the 20-Hour training programme organised by the Mediation and Conciliation Committee, High Court of Jammu & Kashmir (Masalihat), on 27th, 28th, and 29th June, 2019, as per the Training Manual approved by the Mediation and Conciliation Project Committee, Supreme Court of India.
The training programme was conducted by eminent resource persons namely Mr. J.P. Sengh, Senior Advocate (Mediator & Trainer), Ms. Veena Ralli, Advocate (Mediator & Trainer), Mr. Sumit Chander, Advocate (Mediator & Trainer), and Ms. Mitali Gupta, Advocate (Mediator & Trainer). The resource persons discussed and deliberated over the advanced principles of negotiation, the impasse in mediation, prejudices, biases, perceptions, stereotypes, seven elements of settlement writing, role-play (floor demonstration), ethics, role of the Referral Judges, scope of mediation post COVID-19, and the concepts of conflict, negotiation, bargaining, communication, etc. The resource persons trained the Judicial Officers and Lawyers in a productive and fruitful manner through presentations and interactive exercises to ensure that litigants get the benefit of Alternative Dispute Resolution (ADR) system effectively. Phase III of the Online Mediation Training Programme for Judicial Officers and Lawyers of the Union Territories of Jammu & Kashmir and Ladakh is expected to be organized soon.
The High Court of Jammu & Kashmir has already issued the Jammu and Kashmir Mediation and Conciliation Rules, 2019 on 10th March, 2020. These Rules are applicable to all Mediation and Conciliation Centres functioning in the High Court of Jammu & Kashmir and the District Courts in Jammu & Kashmir and Ladakh, in connection with all mediation and conciliation services offered by them. These Rules are also applicable to criminal cases which may of be such a nature where the parties may not be either permitted in law to compound the criminal case or may not be willing to compound the criminal case but may be willing to explore the possibility of a negotiated settlement of their underlying disputes. According to the Rules, the following ethics shall be followed by a Mediator/Conciliator: -
- follow and observe these rules strictly and with due diligence;
- not carry on any activity or conduct which could reasonably be considered as conduct unbecoming of Mediator/Conciliator;
- uphold the integrity and fairness of the mediation process;
- ensure that the parties involved in the Mediation/Conciliation are fairly informed and have an adequate understanding of the procedural aspects of the process;
- satisfy himself/herself that he/she is qualified to undertake and complete the assignment in a professional manner;
- disclose any interest or relationship likely to affect impartiality or which might seek an appearance of partiality or bias;
- avoid, while communicating with the parties, any impropriety or appearance of impropriety;
- be faithful to the relationship of trust and confidentiality imposed in the office of Mediator/Conciliator;
- conduct all proceedings related to the resolution of dispute, in accordance with the applicable law;
- recognize that Mediation/Conciliation is based on the principles of self-determination by the parties and that mediation process relies upon the ability of parties to reach a voluntary, undisclosed agreement;
- maintain the reasonable expectations of the parties as to confidentiality;
- refrain from promises or guarantees of results.
The Jammu and Kashmir Mediation and Conciliation Rules, 2019, will surely help in strengthening Mediation as a substantial ADR mechanism in the Union Territories of Jammu & Kashmir and Ladakh.
The Jammu & Kashmir's Judiciary is also organizing e-Lok Adalats on 22nd August, 2020, and is bracing up to reach out to the litigants for settling the cases which are appropriate to be taken up in the e-Lok Adalats. It is a significant effort to offer the option of negotiable settlement to the parties through virtual mode. The Jammu and Kashmir's Judiciary is making effective use of technology even in ADR System to ensure access to justice to its consumers.
Views are personal only.
(Muneeb Rashid Malik is a final-year law student at Lloyd Law College, Delhi (NCR) and can be reached at muneebrashidmalik@gmail.com.)