Date and Time: Saturday 17 February 2024 6:59:00 PM IST
Job Number: 217321281
Documents (66)
1. CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
Client/Matter: -None2. DISPUTES
Client/Matter: -None3. WHO | PARTIES
Client/Matter: -None4. WHY | PERCEPTION
Client/Matter: -None5. WHY | FACTS - THE REALITY
Client/Matter: -None6. WHY | PERCEPTION v REALITY DILEMMA
Client/Matter: -None7. WHY | CHANGE
Client/Matter: -None8. HOW | PROCESS
Client/Matter: -None9. WHY | PRINCIPLES
Client/Matter: -None10. WHY | PRACTICALITIES
Client/Matter: -None11. PHYSIOLOGY OF DISPUTES
Client/Matter: -None12. CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
Client/Matter: -None13. DE-ESCALATION OF CONFLICT
Client/Matter: -None14. NON-VERBAL COMMUNICATION
Client/Matter: -None15. VERBAL COMMUNICATION
Client/Matter: -None16. REPHRASING
Client/Matter: -None17. REFRAMING
Client/Matter: -None18. ACTIVE LISTENING
Client/Matter: -None19. SUMMARISING
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2024 LexisNexis
Client/Matter: -None20. STORYTELLING
Client/Matter: -None21. SILENCE
Client/Matter: -None22. SMOOTHENING THE ROADBLOCKS
Client/Matter: -None23. CULTURE AND COMMUNICATION
Client/Matter: -None24. ONLINE COMMUNICATION
Client/Matter: -None25. CHAPTER III NEGOTIATION—A DOUBLE EDGED SWORD
Client/Matter: -None26. NEGOTIATION DYNAMICS
Client/Matter: -None27. THE NEUROSCIENCE BEHIND NEGOTIATION
Client/Matter: -None28. NEGOTIATION ‘JUJITSU’
Client/Matter: -None29. ROLE OF LAWYERS IN NEGOTIATION
Client/Matter: -None30. CHAPTER IV MEDIATION—THE MAGIC
Client/Matter: -None31. HISTORY OF MEDIATION
Client/Matter: -None32. CHARACTERISTICS OF MEDIATION
Client/Matter: -None33. DIFFERENCE BETWEEN MEDIATION AND CONCILIATION
Client/Matter: -None34. APPROACHES TO MEDIATION
Client/Matter: -None35. ASSESSMENT OF SUITABILITY OF A CONFLICT FOR MEDIATION
Client/Matter: -None36. ROLE OF A MEDIATOR
Client/Matter: -None37. QUALITIES OF AN EFFECTIVE MEDIATOR
Client/Matter: -None38. STAGES OF MEDIATION
Client/Matter: -None39. MEDIATION TECHNIQUES
Client/Matter: -None40. INSIDE THE MEDIATION PROCESS
Client/Matter: -None41. ROLE OF LAWYERS IN MEDIATION
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2024 LexisNexis
Client/Matter: -None42. PSYCHOLOGY OF MEDIATION
Client/Matter: -None43. MEDIATION CLAUSES IN COMMERCIAL AGREEMENTS
Client/Matter: -None44. PRACTICAL CHALLENGES
Client/Matter: -None45. CHAPTER V LAW GOVERNING MEDIATION IN INDIA
Client/Matter: -None46. A LAW FOR MEDIATION IN INDIA
Client/Matter: -None47. INDUSTRIAL DISPUTES ACT, 1947
Client/Matter: -None48. CODE OF CIVIL PROCEDURE, 1908
Client/Matter: -None49. ARBITRATION AND CONCILIATION ACT, 199656
Client/Matter: -None50. COMPANIES ACT, 2013
Client/Matter: -None51. COMMERCIAL COURTS ACT, 2015 AND RULES
Client/Matter: -None52. CONSUMER PROTECTION ACT, 2019
Client/Matter: -None53. REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016
Client/Matter: -None54. INSOLVENCY AND BANKRUPTCY CODE, 2016
Client/Matter: -None55. RBI ONLINE DISPUTE RESOLUTION (ODR) SYSTEM FOR DIGITAL PAYMENTS
Client/Matter: -None56. MEDIATION IN FAMILY DISPUTES
Client/Matter: -None57. OTHER IMPORTANT JUDICIAL PRECEDENTS ON MEDIATION IN INDIA
Client/Matter: -None58. CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
Client/Matter: -None59. UN CONVENTION ON INTERNATIONAL SETTLEMENT AGREEMENTS RESULTING FROM MEDIATION
(SINGAPORE CONVENTION)
Client/Matter: -None60. SINGAPORE
Client/Matter: -None61. JAPAN
Client/Matter: -None62. UNITED STATES OF AMERICA (USA)
Client/Matter: -None-
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2024 LexisNexis
63. EUROPE
Client/Matter: -None64. BRAZIL
Client/Matter: -None65. HONG KONG
Client/Matter: -None66. INTERNATIONAL ORGANIZATIONS
Client/Matter: -None-
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2024 LexisNexis
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
It was a hot, Indian summer. The temperature was soaring. Waves of heat swept the city. Scorching winds blew clouds of dust.
From a far-off distance, a black spot materialised in the sky. As the spot moved closer, the squinting eyes recognised a crow flying
persistently towards something. The crow was thirsty. Very thirsty. It had been scanning the landscape below for a mouthful of
water without success. Finally, it came upon a broken pot with a draught of water. It landed enthusiastically and perched on the
pot. It tried to reach the water but failed, over and over again. Finally, frustrated, the crow cursed, “This is all my parents’ fault!
If they would have had longer beaks, I would have had a longer beak too. I would be able to reach the water and wouldn’t go
thirsty today.” The crow looked exasperated. After a few minutes, still looking at the water, the crow croaked, “Oh God! Why
are you so ruthless only with me? What sin of mine are you punishing me for? Why do you want me to die thirsty?” And this
way, the crow sat for hours over the pot staring at the water as it evaporated slowly, leaving behind a dry pot. The End.
Life is full of problems.
We all know this in the deepest of our hearts. Most of us do not fully acknowledge this truth. Instead we
complain, grumble continuously, noisily or subtly about the enormity of our problems. But life goes on and
new problems or difficulties keep emerging daily.
Life is full of problems.
Why do we try to skip that sentence and move on? We are always hoping there is a rainbow behind this dark
cloud. PROBLEMS. Say it out loud. Just saying the word is not going to invite you-know-who. They are a
part of life.
The first step towards understanding disputes is accepting this truth - Life has problems. Once we accept the
existence of you-know-who, we come one big step closer to understanding disputes. When problems pile up,
one over the other, over and over again, they transform into disputes. Sometimes a dispute is just one big
problem.
We Indians over the centuries have attributed this everyday phenomenon to various celestial reasons beyond
our control.
“I did something bad in the past… My Karma has come back to make me pay…”
“These are the sins of my ancestors…”
“A black cat crossed my path as I was leaving home today”
“The stars in my horoscope are not aligned in my favour”
Page 2 of 2
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
“I am changing my name from Rohan to Rrrohan to reduce the disputes I am facing so frequently”
Although some good Karma never did anybody any harm, every time we face a dispute, we need something
more in our arsenal than just properly aligned stars and a name in line with numerology.
End of Document
DISPUTES
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES > DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
DISPUTES
A lot happened to you during the last second or two. You experienced some unpleasant images and
memories. Your face twisted slightly in an expression of disgust, and you may have pushed this book
imperceptibly farther away. A psychologist will tell you that your heart rate increased, the hair on your arms
rose a little, and your sweat glands were activated. In short, you responded to the ‘disgusting’ word with an
attenuated version of how you would react to the actual event. All of this was completely automatic, normal
and beyond your control. While the intensity of feelings varies with the particular circumstances, most of us
feel, quite understandably, as though any dispute in which we are involved has costs: emotional, financial, or
social.
There was no particular reason to do so, but your mind automatically assumed a temporal sequence and a
causal connection between ‘dispute’ and negative emotions of varying degrees. You will notice that the word
automatically generates negative feelings and revulsion in your mind.
Feelings that came to your mind when you saw ‘Dispute’
Anxiety
Pain
Expenses
Loss
Trouble
Tension
Frustration
Distrust
Destruction
Research has shown that our brain is wired to respond to most of what we do on the basis of what they call
our ‘intuitive mind’. When you are asked what you are thinking about, you can normally answer. You believe
you know what goes on in your mind, which often consists of one conscious thought leading in an orderly
way to another. But that is not the only way the mind works, nor indeed is that the typical way. Most
impressions and thoughts arise in your conscious experience without your knowing how they got there. You
cannot trace how you came to the belief that there is a television on the wall in front of you, or how you
detected a hint of irritation in your spouse’s voice on the telephone, or how you managed to avoid a threat
while crossing the road before you became consciously aware of it. The mental work that produces
impressions, intuitions, and many decisions goes on in silence in our mind.
The good news is that our mind can be wired back to think of disputes as an intellectual challenge and an
opportunity for personal growth. To do this, we must understand what makes a dispute. Before we start
listing the ingredients, a word of caution to the readers - making a dispute is very much like making a chemical
in the laboratory. One or more of these ingredients, together or in isolation, do not make a dispute. It takes a
certain symphony even in these elements to make a dispute. Although their chemical formula may not be as
Page 2 of 2
DISPUTES
exact as two atoms of Hydrogen and one atom of Oxygen, once we understand the demon we are facing, we
become more equipped to strategise how to deal with it.
Did you know?
These are the Chinese characters used for the word ‘crisis’:
These symbols represent a time of danger and a time of opportunity. Most disputes have elements of danger.
Believe it or not, every dispute is an adrenaline rush. It is something we expect in whitewater rafting and avoid
in everyday life. But every dispute is not just a threat. It is also an opportunity for progress, to create
something, better and stronger than what you had before.
End of Document
WHO | PARTIES
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES > DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
DISPUTES
WHO | PARTIES
Dispute is ‘the Great Equalizer’. It spares no one. Anybody can get involved in a dispute - wise or foolish,
careful or careless, young or old, countries and commoners. Even if you plan to lock yourself up at home,
stop meeting people and order whatever you need online, you may end up having a dispute with one of the
online retailers regarding product quality or delivery. The parties in a dispute may be either equals or
belonging to different hierarchy in a social chain. For example, two students with equal potential to top the
exams will have equal access to the library or Lab and the faculty. But the one with less legible handwriting
has to write and explain a little better in brief in the exam paper to score equal and top as well alongside his
competitor. As reading illegible writing takes a toll on the teacher, the teacher would wish to read faster
through the content, connect and grasp the concept which he/she intends to read from the exam paper.
There is potential for dispute if both students do not score at the same level. One way out of a potential
dispute situation is if both students are made to submit a typed printed paper.
Bringing back to Life
One of the Jataka Tales is the story of a mother who like all mothers loved her child very much. However,
one day the child fell sick. The mother called for the best doctors, tried all the medicines which were available
for the disease but the child became sicker day by day. The mother prayed at various temples and offered the
Gods presents to save her child. But nothing worked. Finally, one day, the child succumbed to the illness and
passed away.
The mother was inconsolable. She refused to let go of her child’s dead body. Lord Buddha’s incarnation
Bodhisattva was passing through the village at that time. He was told of the mother who was not allowing
them to bury her dead child. Bodhisattva decided to visit the home. When the mother saw Bodhisattva, she
invited him respectfully into her home.
Bodhisattva blessed the lady and asked her what she wished for. The lady replied promptly, “This is the body
of my lost son. You are a great sage with powers over both the living and the dead. Please bring him back to
life.”
Bodhisattva replied, “I can surely grant you your wish. However, before I do so, you must get me a handful of
mustard from a home where no one has ever died.”
The woman was overjoyed. She immediately started going from door to door asking if theirs was a home
Page 2 of 2
WHO | PARTIES
where no one had ever died. For days the woman roamed from village to village searching for a home where
no person had died. In the end, she gave up and came back home. She realised that no person in this world is
immune from pain and loss and allowed her son to be finally buried.
Every person in this world faces pain, loss and dispute sometime or the other. No one can escape pain, problems or disputes.
Our life is like a drama with constant costume changes and background changes. The same person is a son at
home, student at school, friend on the playground, rival on the football field, boss in the office, father with a
delinquent child, customer in a shoe shop, drunk driver on the road, pet owner with a furious dog or a sick
person in a hospital. In each of our roles, with each costume change comes new possibilities of a dispute and
every time we deny ourselves the possibility of facing the dispute, we deny ourselves a fresh opportunity of
growth. No, we are not asking you to tailor yourself into one of those persons who is always looking for a
good fight. At the same time, when you face a dispute, don’t be like a deer in the headlights and freeze with
terror.
End of Document
WHY | PERCEPTION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES > DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
DISPUTES
WHY | PERCEPTION
Sometime back videos of women walking down the streets of famous cities in the world including Mumbai
and New York became viral online. Each woman was wearing a short skirt or an outfit which revealed her
figure. The reaction or ‘no reaction’ the woman received from men on the street was a psychological study in
itself. As expected, in one of the cities, the woman was approached, stared at and propositioned, decently and
indecently, repeatedly. But there was one city where the woman was not bothered at all. Can you guess which
city it was - New York or Mumbai?
Most of us who have not seen the videos will guess New York. Well guys, here comes perception into play.
The city where the woman was not troubled at all was Mumbai.
Perception is nothing but how we look at things. It is ‘our version of the story’. It is the process by which we
tend to attribute characteristics or traits to other people we meet. Many of us sometimes just sit in a public
place, waiting for a train or flight, watch the humanity go by and attribute characteristics to people as they
walk past purely based on what they are doing at that exact moment.
If you got the answer wrong, don’t be miffed at yourself. Psychological studies on students with clinically
proven high IQs at Stanford and Harvard have made the same mistake in perception studies. Nobel Laureate
Daniel Kahneman explains that it is not all our fault. Our mind has the tendency to jump to conclusions. He
categorises the brain into two parts - System 1 which operates automatically and System 2 which operates for
effortful mental activities like mathematical calculations. We accomplish most activities of everyday life driving, picking up a phone call, peeling an orange with System 1 and with no help at all from System 2.
System 2 comes into play the moment we see a more technical challenge, which requires a definite workout of
our mental faculties like solving a mathematical problem, creating a software algorithm, performing a new
kind of surgery, deciding the dimensions of pillars in a building or drafting a legal brief.
Unfortunately, System 2 is a lazy one. Most of the times split second decisions as well as our impressions of a
Page 2 of 5
WHY | PERCEPTION
person or situation are made by System 1, the impulsive part of our brain which does not apply logic or the
practical knowledge we have on the subject. These fleeting impressions of everyday life solidify into
perception with time and repetition.
Perception is the process by which we select, organise, interpret, and respond to the information we collect
from our everyday life. The different permutations and combinations, in which we select, interpret and store
this information gives rise to varying perceptions. A dispute is nothing but a common human psychology of
disagreeing on a particular point of view, a difference in how disputing parties perceive the same situation or
‘you-know-who’.
Navagunjara v Chimera
Mahabharata, as we know the famous Indian epic had spread across the length and breadth of the vast country through an oral
storytelling tradition. Owing to this story telling format, several regions of the country have their own additional episodes and
variations to main story of Mahabharata.
In the Odia Mahabharata committed to writing by Saarladas in the 15th century, Arjuna during his forest exile (Van-Vaas)
was once walking through the dense forest. All of a sudden, he encountered a huge creature of the kind he had never seen before.
The animal had the head of a rooster, the neck of a peacock, the waist of a lion, the hump of a bull, one leg of an elephant, yet
another leg of an antelope, another leg of a tiger and the tail of a serpent. Like a prepared, capable warrior, Arjuna pulled out his
bow and arrow, ready to annihilate the creature to protect himself in the wilderness. It seemed like the natural response to the
situation. Be it a corporate jungle or a mythical forest-rules of survival were same-survival of the last man standing.
Just before shooting his first arrow, Arjuna noticed that one of the hands of the creature was part human. In fact, the human
hand was holding a lotus-the favourite flower of God Vishnu and his friend Krishna. Arjuna suddenly realised that he knows
this form. It is Krishna. Although Arjuna feared, he decided to rely on his instinct and dropped down his weapon. He bowed
before the ‘Navagunjara’ in salutation to God Vishnu.
A voice inside him guided him from the Rig Veda-ekam sat bahuda vipra vadanti-truth is one but each person perceives it
differently depending on their point of view and their innate personality or Svabhava. In stark contrast, Bellerophon killing the
Chimera is the ideal Greek hero, the one who brings order and makes world less complicated or less different. Bellerophon had his
reasons and came from an entirely different cultural perspective-such different approaches to similar problems-a situation very
commonly needing reconciliation in cross cultural negotiations. Would you judge Bellerophon and praise Arjuna? Read the portion
on cross cultural perspectives in the chapter on Negotiation before you take a call.
But perception is not just one of the root causes of a dispute. Sometimes our biggest weaknesses can be
converted into our biggest strength. When our perception about something is positive, it is also one of the
building blocks of a personal or professional relationship. We form new bonds, friendships, business alliances
because we form a perception that the person is an amicable collaborator, business partner, diligent employee,
a friend who stands by us or a spouse who loves us. Our positive perception helps us forgive their mistakes
and forget their shortcomings.
The story of friendship between Duryodhana, the arrogant son of Dhritarashtra and King of Hastinapur and
Karna, a charioteer’s son but one of the most brilliant archers of the era is woven into the intricate tale in the
Indian epic Mahabharata. During a martial exhibition at Hastinapur, Karna challenged Arjuna, the Pandava
prince in archery. When the challenge was issued Karna was insulted in public. He was asked to state his caste
and told that he is a mere charioteer’s son and Arjuna cannot fight with someone beneath him. At that
moment, Duryodhana steps up, acknowledges the skill of Karna and declares him the King of Anga making
him Arjuna’s equal. Throughout the epic, various people insult Karna but Duryodhana continues to treat
Karna not just as his equal but also as his friend. When Kurukshetra war begins, Karna learns that he is
actually the child born to the Pandava matriarch Kunti out of wedlock with the Sun God. But Karna is so
Page 3 of 5
WHY | PERCEPTION
grateful for Duryodhana’s friendship, he decides to fight against his step brothers and stay on the side of his
friend. Eventually, Duryodhana loses ninety-nine brothers to the Kurukshetra war. But he finally breaks down
when he loses Karna in the battlefield.
Perception Pratyaksha
The Nyaya Sutra is an ancient Indian philosophical text composed by Ak?apāda Gautama, an Indian
Philosopher during the Kushan Dynasty (2nd Century BC). The Nyaya Sutra flourished in India at a time
when the Christian era began in the west. The text is considered a treatise on the science of debate and
discussion in ancient India (also known as Tarka Vidya). The Nyaya Sutra provides an in depth analysis of
discussions and how a participant shall arrive at a conclusion in a debate. It was used by ancient philosophers
to understand the psychology of debaters to win a debate. As per the Nyaya philosophy, the sources of
knowledge of any person participating in any debate or discussion are:
•
perception,
•
inference (establishing a cause-effect relationship based on our perception),
•
analogical reasoning (comparing something known with something already known to understand the
unknown better); and
•
testimony (reliable expertise in a subject).
In present day life, every time we speak, we rely on at least one of the following sources of knowledge to
engage a discussion. Of these sources of knowledge, Nyaya gives great importance to perception. It explains
very scientifically how we form a perception. Understanding this can help us identify the common mistakes
we make and others around us make in understanding a particular situation, person or problem.
Perception in Sanskrit is ‘Pratyaksha’ which can be literally broken down into Prati (before or near) and Aksa
(sense organs). This means that we form our perceptions by sensing what is available with us. We can tell a
rose is red because we can see it. If the person had colour blindness, he would not be able to tell you the
colour of the rose but can tell you that it is fragrant and soft to touch. The person is unable to form a
completely correct perception because of a defect in how he senses the object. So, if we do not have all the
information available with us, our perception of a situation will not be accurate. Since life is not a laboratory
experiment, we generally do not have full information to form an opinion. Let us also remember that
scientists also go wrong 999 times in laboratory experiments to get one right answer. The least we can do is to
give the world a benefit of the doubt until we know something really substantial enough to form a negative
perception. The Nyaya also, recognises this problem of incomplete or false information and warns us that
something is ‘Pratyaksha’ only when we block out all our misperceptions. It warns us that whatever we sense is
generally wrong or incomplete and only by blocking out our misinterpretations, the facts emerge.
Black cats are considered bad luck in India but good luck in Japan
Although we form our most lasting perceptions about people, we deal with on a day to day basis, human
mind has a tendency to forego the tough and slow logical path and adopt the ‘fast food’ approach in forming
our perceptions. By doing so, we have, in fact, stumbled across the growing science of body language a
technique used by everyone from interviewers to international leaders to come closer to understanding the
universal mystery - what exactly is going on in someone’s head?
But all our shortcuts are not as useful or accurate. Some of the common shortcuts we misuse in forming our
perception of others are:
Selective Perception: We will tend to perceive things according to our beliefs more than as they really are, and
Page 4 of 5
WHY | PERCEPTION
react accordingly. Nowadays commonly known as placebo effect, some individuals under the healthcare
research were given sugar tablets instead of the actual medicine for a disease. The tablets showed signs of
improvement in the people because they ‘believed’ that they were being provided with the actual medicine.
On the other way around, Meeta in the example above ‘believed’ she knew Rajat was trying to avoid her on
Valentine’s Day when he actually was not.
Halo Effect: We owe the Indian film industry big time for our perception of a man in love who fights ten
goons singlehandedly without breaking a sweat. For an Indian mother, her son can do no wrong and for an
Indian wife, her husband is seldom right. We have the tendency to like (or dislike) everything about a person,
including things we have not actually observed. We refuse to hear something scandalous about someone we
admire yet we very easily gossip, are malicious about people we envy or disagree with. Television stars in India
face the brunt of this phenomenon regularly. Men or women in parties are famously known to chastise
actresses who portray the ‘ideal bahu’ by day for partying in the night. In the same way, once we attribute
strong negative traits to a person like arrogance or selfishness, it is tough to change our outlook.
Contrast Effect: We have a tendency to compare the attributes of one person with another person who ranks
higher or lower in the same characteristics. I am always warning people against falling in love on the rebound,
a very short time after a disastrous breakup because the next person who happened to come along just
seemed so much better than the one that got away. This perception bias has a significant impact
professionally in job interviews and performance evaluations. Employees face a contrast bias if their
predecessor was stellar at their job and people just cannot stop gushing about how good they were. Indian
parents tend to pitch siblings against each other in academics and sports. With the advent of family planning,
this courtesy is being extended by parents to the closest cousin they can find in the age group, the child of a
family friend or sometimes, with their performance when they were their kid’s age.
Stereotyping: With the varied culture in every State of India, this is perhaps the most common perception bias in
India. Statement - All South Indians are not Madrasi, don’t have a dark complexion, are not all good at
mathematics and sciences and don’t consume sambar by the gallons. All people from Uttar Pradesh don’t
ruminate over ‘Pan’. All Gujaratis are not stock traders. Every Bengali does not spout poetry like
Rabindranath Tagore or eat fish. Every man from Bihar has not cracked the civil service examinations. All
Oriyas are not poor and do not stay in mud-huts. On a more serious note, the stereotype bias has played
havoc in Indian history over and over again. For instance, Sikhs were attacked on Indira Gandhi’s
assassination because the bodyguard who shot her was Sikh. Trump was elected President of the United
States of America because people believed he is the hard-headed, opulent and successful businessman from
‘The Apprentice’. This bias works not only on culture but any strong distinguishing feature like gender or
social stature.
These are not the only ways in which we try to take shortcuts while judging people and situations. It is not
possible for us to eliminate our bias completely but recognising even one bias which we use as a tool
frequently and consciously trying to give it up can make all the difference.
Attribution: Every time someone is nice or not nice to you, the first question we many times ask ourselves is
‘Why?’ Without wasting any more time, we also answer our own question. If someone is nice to us, based on
our past impression of the person we come to a conclusion like “He is always so thoughtful” or “He probably
needs a favour”. In our quest to uncover ‘why people are the way they are’ we attribute their behavior to
external influences like the weather, traffic, the boss, the wife and the in-laws and internal influences like
being smart, kind, cruel or sadistic. Making attributions gives order and predictability to our lives. It gives us a
feeling of security that we are in control of the world around us. We should focus on controlling situations
rather than the world or persons. Conclusions comfort our understanding. We all tend to believe that a task
without an end is not a task per se. This may be true while working on an assignment or task in hand. But this
Page 5 of 5
WHY | PERCEPTION
extremely logical and scientific analysis does not find its sanctity in human relations personally or
professionally.
Suppose you have a colleague at work and every time you see him, he is always on his way to the coffee
machine or talking to people in the halls or going home early, you may assume the person is doing nothing for
the company. Your perception will be that he is dead weight to the company and you have no clue whether he
does anything productive at all throughout the day and why he still works for the company. What is most
interesting is that you would have never spoken to your colleague and your perception is based on your
assumptions purely on the basis of what you saw or what you think you saw. Perhaps you did not see that
your colleague reaches office every day before time or that he takes really short lunch breaks. May be your
colleague is engrossed in his work when he is working and does not get distracted by social networking apps
and this helps him finish his work faster than others. May be your colleague’s job profile is different than
yours. There may be numerous ways in which this colleague is contributing to the company. But it is easiest
for us to take a critical view about someone and that is what we all do.
The Thinking Man
Once the great car maker Henry Ford hired an efficiency expert to go through his plant and find the nonproductive people. He told the efficiency expert, “Tell me who they are, and I will fire them!”
The expert made the rounds with his clipboard in hand and finally returned to Henry Ford’s office with his
report. The expert said in a very business-like manner, “I’ve found a problem with one of your administrators.
Every time I walked by; he was sitting with his feet propped up on the desk. The man never does a thing. I
definitely think you should consider getting rid of him! He does not seem to be doing anything productive all
day long.” When Henry Ford learned the name of the man the expert was referring to, Ford shook his head
and said, “I can’t fire him. I pay that man to do nothing but think and that’s what he is doing.”
Word of caution - attribution is something we cannot stop because we just cannot help it. However, what we
actually can do is not to jump to extremely negative conclusions about others unless we really have something
substantial to back our claim. This generosity which we are extending to others must also be extended by us
to ourselves. Some of us have a tendency to over-self-analyse. While some of us think we are always the
victim, some of us are always blaming ourselves for what happens around us. An unbiased evaluation of our
own behavior in a particular situation can tell us a lot about the cause of a dispute. Perceptions reduce the
stand of merit, dignity of labour, healthy competition, not just at the micro level but also at the macro level in
the world. Perceptions have led to crash in the stock market and boom as well. Perception is a necessary evil
but only when it is in a single direction and entails a positive story around it.
Lastly, we must always remember that the chief difference between critical thinking and misperception is that
- a critical thinker deals with causes and effects and leads to logical, constructive perception of situations.
Misperception frequently leads to tension and nervous breakdown.
Once upon a time, a very wealthy merchant, a father, decided to send his son off to see the world, its sorrows
and downtrodden people and understand and appreciate how fortunate he was. So, the father decided to send
his son to what the father considered a poor family out in the countryside. When the son returned three days
later, the father said, “Well son, did you see how poor people live?” “Yes father, I did,” said the son. “Tell me
what you saw?” said the father. “Well, I saw that we have expensive lamps imported from Europe, and they
have stars. I saw that we have one dog, and they have four dogs. I saw that we have a swimming pool in our
garden, and they have a creek that never ends. Thank you, father for showing me how poor we are.”
End of Document
WHY | FACTS - THE REALITY
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES > DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
DISPUTES
WHY | FACTS - THE REALITY
When you woke up this morning, you found the world largely as you left it. You were still you; the room in
which you woke up was the same one you went to sleep in. The outside world had not been rearranged.
History was unchanged and the future remained unknowable. In other words, you woke up to reality. But
what is reality? The more we probe it, the harder it becomes to comprehend. Facts are something which can
be substantially established. Yet, ‘facts’ is only a bundle of information which the majority agrees with. There
was a time when the earth was considered the centre of the solar system. Then came Copernicus who first
propounded that the sun was at the centre of the solar system and the earth revolved around the sun. There
was a time when the landmass which includes the present world superpower United States of America was
not there at all on the world map. The world thought it did not exist. Then Columbus discovered the
American continent now known as North America and South America which in fact covers 28.4% of the
earth’s total landmass.
Every day science is re-written and old theories are thrown out of the window. The concepts we take for
granted in everyday life are in fact created by man. The year does not ‘end’ on ‘31st December’. Every time
you look at your watch and think you are late, you are just agreeing to a time system conceived by man and
agreed by the entire world, just for convenience. Albert Einstein was onto something when he thought out
loud - “Reality is merely an illusion, albeit a very persistent one.”
Metaphysically, in the Indian Advaita Vedanta philosophy, it is believed that the world as we see it is a mere
projection - like a Bollywood blockbuster on a projection screen which will disappear the moment the white
curtain of our ignorance drops. According to the philosophy, Maya can be compared to clouds which cover
the sun. The sun remains in the sky but a dense cloud cover prevents us from seeing it. When the clouds
disperse, we become aware that the sun has been there all the time. Our clouds - Maya appearing as egotism,
selfishness, hatred, greed, lust, anger, ambition is pushed away when we meditate upon our real nature, when
we engage in unselfish action, and when we consistently act and think in ways that manifest our true nature
i.e., through truthfulness, purity, contentment, self-restraint, and forbearance. Yet for us this reality is
conditioned, like a warped mirror, by time, space, and causality - the law of cause and effect.
So, what is reality and what is fact? Plato had a go at it 2400 years ago, defining ‘knowledge’ as ‘justified true
belief’. But testing the justification or the truth of beliefs traces back to our perceptions, and we know these
can deceive us. However, in the context of problems and disputes, when you separate your perception from
reality, you get facts. Hard, cold truths which are separated from your emotions and feelings - it may be
Page 2 of 2
WHY | FACTS - THE REALITY
painful for you to accept them sometimes but it is what will finally help you negotiate your way out of your
disputes.
‘Mass Matters’ in search of God’s Particle
The Higgs Boson particle is a sub atomic particle which is believed to give mass to matter. It is also known as
‘God’s Particle’ because in a way it is the missing piece in a scientific puzzle which explains why things work
the way they do. If the Higgs Boson does not exist, we will not be able to explain the origin of mass.
However, the existence of the particle has not been proved till now. Scientists of the European Organization
for Nuclear Research (CERN) are presently working at the world’s biggest atom smasher the ‘Large Hadron
Collider’ (LHC) to prove the existence of Higgs Boson. Why is this so difficult you may ask? The particle is so
unstable, it is extremely difficult to ‘prove’ its ‘existence’. So, is Higgs Boson a fact? And what about all those
science lessons which simply told us that mass=Force/acceleration or that the atomic mass of Hydrogen is 1
and Oxygen is 16?
Is there really a reality in this world?
End of Document
WHY | PERCEPTION v REALITY DILEMMA
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES > DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
DISPUTES
WHY | PERCEPTION v REALITY DILEMMA
Have you ever wondered what differentiates a human from an animal? Apart from various things you may
come up with, humans can compose beautiful lyrical poetry, play breathtaking music, paint deep, meaningful
and sometimes abstract paintings. We accomplish these feats by the use of our imagination.
Our imagination is a dominant feature of the human story. The imagination springs from the pre-frontal
cortex of our brain which is believed to be more developed in humans than animals. Possibly while carrying
some heavy load, the pre-frontal cortex of a prehistoric man suddenly sprang to action and asked - what if
there is an easier way to do this? As the human population increased, possibly the caves became an
uncomfortable dwelling and man asked himself - what if I can build my own cave? An apple fell on Newton’s
head and he discovered gravity. The water level rose in the bath tub when Archimedes was taking a bath and
he realised the principle of buoyancy and made the word ‘Eureka’ world-famous. Steve Jobs dreamt that every
home will have a computer and came up with Apple Macintosh. He changed the way the world looks at a
phone, which is no more ‘just a phone’.
When the Rice Gruel turned to Butter
The Panchatantra tells the story of a poor Brahmin who lived alone in a small village. He used to beg for alms
for his living. He was also a miser, and kept whatever little food he received as alms in an earthen pot that he
hung beside his bed. He kept a watch on the pot, and ate from the pot only when he was very hungry.
One day, he received a large quantity of rice gruel (porridge). He filled his pot with the rice gruel, and ate the
remaining. He was so happy to have his pot full; he could not take his eyes off the pot as he lay awake in his
bed. After a long time, he fell asleep and started dreaming about the pot full of rice gruel. He dreamt that
there was a famine in his village. He sold his pot full of rice gruel for hundred silver coins. With this money he
bought a pair of goats. His goats gave kids in months and he traded all goats for some buffaloes and cows.
Soon, even the buffaloes and cows gave kids, and they gave a lot of milk. He started churning the milk into
butter and selling it in the market. This way, he became a very rich and popular man.
Another wealthy Brahmin was so impressed that he offered his beautiful daughter for marriage. Soon after,
they got married in a lavish ceremony. His wife gave birth to a son. But his son was very naughty. He would
play and make noise all day. One day, the Brahmin asked his son to keep quiet but he would not listen. Even
his mother could not hear him shout as she was busy with her chores. The man became very angry and picked
up a stick to hit his son.
Page 2 of 6
WHY | PERCEPTION v REALITY DILEMMA
As he was dreaming, he picked up a stick kept next to his bed and hit his earthen pot. The pot broke and all
the rice gruel spilled down. This woke him up.
At once, he realised that he had been dreaming. He also realised that all the rice gruel he had saved and was
happily dreaming about was lost. He was shattered.
Source: The Brahmin’s Dream, http://www.talesofpanchatantra.com/shortstories_brahmins_dream.php (last accessed in
April 2021).
We imagine constantly - what we will do on our first day of college, when we get our first salary, when we buy
our first car or when we finally ask that cute girl out. Every business proposal is someone’s dream, someone’s
belief - just backed by facts and figures. Every scientific discovery was once just a thought in a scientist’s
mind. Yet, imagination which makes us the most superior of all animals also makes us vulnerable to disputes.
Humans are born storytellers. We tell stories every day. We tell these stories to our parents, friends, spouse,
children, bosses, colleagues, customers and most importantly, to ourselves. Human mind has the inherent
capacity to connect various random events and diverse scenarios to make one comprehensive storyline.
Narratives satisfy our need to know why things around us are the way they are. The storyteller in us is always
looking for opportunities to predict what will happen next. The emotion-navigation system of our mind
constantly compares alternative scenarios to the future, some of them being so over the top we know it can
never be true. After narrowing down over the alternative scenarios, we deliberately select one storyline over
the other. This gives us a feeling of having control over the unpredictable life we lead. Our storytelling ability
is also the quality which gives us an edge over other living creatures with lesser foresight. This constant
imagining of alternative scenarios also helps us prepare for what lies ahead and actively shapes our decisions
regarding our future. As fascinating as this may sound, our capacity to generate stories out of nothing also
burdens us with the responsibility of finally believing and acting upon a story which is closest to the reality.
Sometimes, we create a story which is far away from the reality and tell the story to ourselves and others so
many times that we start believing that it is the reality.
Individual simulation of our mind is a creative and flexible tool which makes us one of the most powerful
creatures on the planet. However, using this tool excessively is also a risky way of decision making that can
lead us far away from the course of action reality actually demands. A mirage seen in the desert is an example
of the instances in which our storytelling mind can make us believe something which is far from reality. It is
one of the main reasons that we often miscalculate the probability of human behaviour, harbor false
expectations and become confused about which option to choose.
Every human being looks at life differently. Since we cannot actually control completely what is happening
around us, we control the world around us in our mind. The reality of nature is being constantly compared
and contrasted with imaginary reality inside our head. This leads to conflict as our imagination seeks a world
that is much more controllable and just the way we want the world to be. This problem is further multiplied
because every human being we encounter has their own version of imagined reality and each person is
convinced that their imagined reality is the ‘correct’ version of reality. When two or more versions of
‘imagined reality’ clash, it gives rise to a dispute. This imagined reality is nothing but perception. When our
perception is very different from reality, it becomes an ailment. Like every ailment, it needs to be cured by
aligning our perception as close to reality as possible.
While it is true that everyone perceives reality differently, reality could care less about our perceptions. Reality
does not change to adapt to our viewpoints; reality is what is. Reality is fact. Reality is truth. Reality, however,
is not always known, which is where perception of reality comes in. While reality is a fixed factor in the
equation of life, perception of reality is a variable. At the same time, reality is nothing but a part of our
Page 3 of 6
WHY | PERCEPTION v REALITY DILEMMA
perception. All we need to do to arrive at the reality is to peel away the layers of our bias, remove our colour
from the facts of the story.
Sometimes, we forget that Aryabhatta, an Indian, invented the number ‘zero’ to express nullity. As a nation,
we are obsessed with the scientific reality expressed in the form of physics, chemistry, mathematics or biology.
All these physical sciences lay a lot of emphasis on conclusiveness. The conclusions and principles of these
sciences are considered absolute unless proved wrong with substantial evidence. We work on facts and figures
throughout the day whether academically or professionally. Yet, when it comes to our personal life, we fail to
separate the facts from our imagined reality. Life would be beautiful if we could so easily separate our
perception from the facts like churning butter out of buttermilk or sifting through sand and gravel to find
nuggets of gold or as easily as Aristotle once proclaimed ‘A is A’.
If there is a philosophical Atlas who carries the science of critical reasoning on his shoulders, it is Aristotle.
Rightly known as the ‘Father of Logic’, Aristotle was the first man to propose the use of syllogisms as the
ground rules of logic. These rules of logic which were proposed more than 2000 years ago are still valid in
present times. Many of us who write competitive examinations prepare syllogisms as part of the syllabus for
verbal reasoning. But most of us do not realise that these syllogisms can help us churn facts out of
perceptions in real life.
Syllogism is the science of arriving at accurate conclusions based on available information. Theoretically, a
person is given two statements which are completely correct. From these two correct statements, Aristotle
says that the person can arrive at a factually correct conclusion. The most common example of a syllogism
which we generally apply in mathematics is as follows:
A is equal to B.
B is equal to C.
Hence, A is equal to C.
Although we do not need to go into the science of logic in detail, we need to remember two important things
while applying the rules of syllogisms in real life. For a real-life syllogism to be correct, both the statements
provided as the base information as well as the conclusion that we derive from the information must be
factually correct. If the information you have is itself not correct, you cannot generally arrive at a conclusion
which will come close to reality. On the other hand, sometimes, you may have the correct information but
because of your pre-conceived notions and bias towards people or circumstances, you will interpret the
information wrongly and arrive at a conclusion that is not a fact but only your perception.
Some of Aristotle’s famous syllogisms in the Indian context are as follows:
Statement 1
Statement 2
Every Indian is human.
Every human will make mistakes sometime.
Conclusion - Every Indian will make mistakes sometime.
Statement 1
Some Parsis are lawyers.
Statement 2
Some lawyers are good.
Conclusion - All Parsi lawyers are good.
Statement 1
Statement 2
Page 4 of 6
WHY | PERCEPTION v REALITY DILEMMA
Statement 1
All Agrawals are Chartered Accountants.
Statement 2
Some Chartered Accountants are good.
Conclusion - All Agrawals are good Chartered Accountants.
Some or all of the above syllogisms are wrong. Can you guess which ones?
The first syllogism is correct. Statement 1 and Statement 2 are based on established facts. The conclusion is a
direct deduction from Statements 1 and 2. So the conclusion is also correct.
The second syllogism is wrong because the conclusion is wrong. It is a fact that some Parsis are lawyers. It is
also true that some lawyers are good. But it will be factually wrong to say that this makes all Parsi lawyers
good at what they do. The correct conclusion which can be derived from the available facts is that some Parsi
lawyers are good. People having the correct facts may arrive at a wrong conclusion due to some bias. This bias
may be positive or negative. To prevent disputes, we must learn to form an opinion based on facts. We must
try to set aside our bias as much as possible. Self-analysis on a regular basis plays a key role in knowing your
biases.
The third syllogism is wrong because both Statement 1 and the conclusion are wrong. When the premise or
information on which our conclusions are based is wrong, it is generally impossible to come to a correct
conclusion. If the information available with us is wrong and we still come to the correct conclusion, it is
most likely that our reasoning of reaching the conclusion is faulty. Before basing our opinion on any
information, it is of utmost importance to verify the information from neutral sources.
In real life also, we generally have some information at hand. Before even beginning to form our opinion
based on the information, we should first verify how close the information is to reality or the actual facts.
Once we have verified that the information we have is as close to reality as possible, we can evaluate the
information and form our opinion. It is never too late to synchronise your perception with the reality. Even if
you are already in a dispute, it is of utmost importance to verify the facts and re-evaluate your perception of
the situation. This is one of the most important factors that can help you analyse your options for resolving a
dispute on a long-term basis.
The best example of cognitive analysis of facts without making any dilution of facts with emotions and bias
exists not among humans but among the animal kingdom. Honey bees process a large quantum of
information related to the flowering and non-flowering plants, the location of the flowers, the seasons,
weather and its impact on the nectar collection activity. If this was not enough, the honey bees also retain and
process information related to the age of each honey bee in their hive, their rank, behavioral traits and
physiological status. Just like a normal human office, honey bees also maintain a strict rank and file. The
youngest honey bees begin their apprenticeship by undertaking a series of menial nest-keeping duties. As they
grow older, they are promoted to other posts with greater responsibility, one of them being the task of
searching for nectar outside the bee hive.
For a moment, let us activate our story-teller tool and think like a bee which has been sent out of the bee hive
to collect nectar. A matrix of decisions which a honey bee must take while on its trip outside the hive is as
follows:
•
Which is the closest location of flowers near the hive?
•
Which route is the shortest to reach the location of flowers?
•
Once at the location, which is the most productive flower from which to begin collection?
Page 5 of 6
WHY | PERCEPTION v REALITY DILEMMA
•
How long to stay on a particular flower?
•
How to harvest the nectar from that particular patch?
•
Which flower to move to next?
•
How much nectar to load up?
•
Which flowers to give a miss since they have already been harvested?
•
Which route to take to go back to the hive?
The process does not end here. When a honey bee finds a good harvesting patch with quality flowers, the
honey bee transmits this information to all other honey bees in the hive by doing their famous waggle dance.
The honey bee is also an excellent navigator. They remember and use landmarks on the route to the flower
patch from the hive to navigate their way to and fro. Research indicates that honey bees can recall their
surroundings and remember visual images. It is speculated that honey bees have a mental picture of the local
geography surrounding their bee hive because their bearings and routes to and from the nest are so nuanced
and accurate.
This shows that honey bees use conscious awareness in their decision making just like any other vertebrate
animal. Their behavior cannot be dismissed as robotic, as honey bees change their minds with changing
conditions. For example, honey bees look for nest locations just like we would look for an accommodation in
a city. The honey bees delegate scouts to search for a nest location. Once they have found some suitable
locations, they report these locations to the hive and spread the word among other bees. They take
suggestions from their sister bees and visit the sites suggested by them. They deliberate like humans and if
they find the site suggested by other bees better, they change their vote and inform the rest of the hive about
the better location. Let that sink in for a moment before you make up your mind that separating perception
from facts is not feasible in everyday life.
Our ancestors discovered that they could dramatically improve the accuracy of their mental scenarios by
increasingly connecting their minds to others. We give each other advice - for instance, by posting signs about
the possible presence of crocodiles. We exchange our ideas and give feedback. We ask others, and we inform
them - for example, by recounting what it was like when we were in a similar situation. We take an interest
even without knowing whether anything important or useful comes of it. There are individual differences in
how much interest people display in what certain others have to say, but we are generally driven to wire our
minds to those around us. Our expectations and plans are subsequently a lot better than they could have been
if we didn’t listen. It is generally good advice to consider advice - preferably from a variety of sources before
making up your own mind. One of the ways we can confirm the reality is by asking unbiased and neutral
people for their advice or opinion on the matter.
The Queen’s Necklace
Once upon a time, King Brahmadatta was ruling in Benares in northern India. After completing his education,
Bodhisattva became one of his ministers.
One day the King went on an outing to his pleasure garden. A big crowd from the court went with him. They
visited many parts of the lovely park. Near a cool forest they came upon a beautiful clear pond. The King
decided to go for a swim. So, he dove into the water. Then he invited all the ladies of his harem to join him in
the refreshing pond.
Laughing together, the harem women took off all their ornaments and jewelry. Along with their outer
clothing, they handed all these over to their servant girls for safekeeping. Then they jumped into the pond
Page 6 of 6
WHY | PERCEPTION v REALITY DILEMMA
with King Brahmadatta. The King had given one of his favorite queens a very valuable pearl necklace. In the
beginning, the servant girl watched the belongings very carefully. But the heat of the day soon made her
drowsy and she fell asleep.
In a minute or two the servant girl awoke from her accidental nap. Frightened, she immediately looked over
the queen’s possessions. When she saw the necklace was missing, she yelled out in terror, “Help! Help! Some
man has taken the queen’s pearl necklace!”
After running to her side, security guards went and reported the theft to the King. He ordered them to stop at
nothing, and to catch the thief immediately. Frightened of the King’s wrath, the guards began dashing madly
around the pleasure garden searching for the thief. But the thief had taken flight.
When all the persons had come out of the pond and the water in the pond became still, the security guards
saw the pearl necklace appeared in the middle of the pond. The security guards dived in to retrieve the
necklace but the moment they would reach the middle of the pond, the necklace would disappear. The King
ordered the security guards to dry the pond and retrieve the necklace.
The pond was dried up but there was no necklace at the bottom of the pond.
As the sun began to set, the king said, “Let us continue this investigation tomorrow.” The pond was refilled.
Meanwhile, the Royal Minister who happened to be Bodhisattva had seen and heard all that had taken place in
the pleasure garden. He realised that the mystery could be solved only by careful examination. Jumping to
conclusions could lead to the wrong answers. So, he started examining and analyzing the situation in his mind.
Bodhisattva went to the King and said, “Your Majesty, if you allow, I would like to handle this investigation
for you.”
“By all means, my wise minister,” said the King, “examine into it yourself.”
The Minister went to the pond and examined the pearl necklace which was again appearing in the waters of
the pond.
As he saw the pearl necklace, he realised that the necklace was merely a reflection on the still waters of the
pond. Bodhisattva gazed up and found the pearl necklace jutting out of the nest of a crow which balanced on
the branches of a tree throwing shade over the pond.
End of Document
WHY | CHANGE
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES > DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
DISPUTES
WHY | CHANGE
Change is so pervasive in our lives that it almost defeats description and analysis. One can think of it in a very
general way as alteration. Children grow up, parents grow old, people’s way of looking at life changes based
on their experiences, every business goes through a cycle of growth, development and decline and the
opinions of a society also transform. All parts of the cosmos are attuned in a rhythmical pulsation. Nothing is
static - all things are subjected to periodical mutations and transformations. The dinosaurs developed out of
single cell organisms, the dinosaurs and mammoths faced extinction, the Neanderthal man developed from a
monkey, the present-day man developed from the Neanderthal man and many of us secretly hope that our
genes will mutate someday and we will all turn into X-men. But alteration in a thing raises subtle problems
also.
As we go about our lives daily, we get used to set patterns. You wake up in the morning, brush your teeth,
drink coffee, have a bath, have breakfast, get ready for work, pack your lunch, take the metro to work, work
in a cubicle all day, have lunch with your office buddies, return back home, watch your favorite show on
television, have dinner, sleep. Yet, if one day, you woke up late in the morning because your alarm did not go
off, there is no water to brush your teeth or have a bath, you are out of coffee, the metro system is down on
your route, you reach your office late and you are told you have been shifted from your cubicle to some other
floor in the building, you miss lunch because of the ruckus, reach home late because of the metro line which
is still down.
Most of us sleep-walk through life, not understanding what is going on about us. While we are sleeping, things
are changing slowly and consistently. We are unaware of these changes because we are asleep. Then
‘suddenly’, some drastic change jolts us awake and we wake up with a start and cannot comprehend how such
a major change could happen ‘all of a sudden’.
“They just terminated my employment suddenly…”
“My business went into losses this year when things were always so good”
“My husband is not interested in me anymore…”
“My employees just hived off and formed their own business unexpectedly”
Page 2 of 8
WHY | CHANGE
“My son has become indifferent about my needs out of the blue”
Sleepwalking through life makes life easy, generally. But if we are faced with a grave change in circumstances,
we refuse to believe that things are changing. We fight the change; we refuse to accept that we had any role in
the changes that have happened around us. How could we have contributed? We were blissfully asleep. Many
disputes happen because we are unaware of the changes happening around us and when we are suddenly
faced with the change, we do not understand how to react.
Nassim Taleb is a famous scholar and risk analyst who is known worldwide for predicting the banking and
international financial crisis of 2008. In his various works on risk analysis, he explains how we humans have a
tendency of being stuck to a decision, a way of thinking, a way of looking at things and a way of doing things.
We refuse to accept new information which comes to us because we are afraid that we may have to change
our mind about the way we look at a particular situation or simply because we are wired to be ‘too lazy’ to do
anything about it. Convincing yourself that what you already know is correct is easier than changing the way
we look at things.
As an example, Taleb points out that for many years, the world believed that all swans were white. When the
continent of Australia was discovered, ornithologists found black swans in Australia. This random event
changed a well-established fact of many years. In the same way, life is unpredictable and ever changing. Until
we accept this fact, every black swan that comes our way comes as a shock to us because we are not prepared
for it. According to Taleb, such black swans are characterised with ‘low predictability’ and ‘high impact’. It is
difficult for us to predict certain events and yet they have such a huge impact on our lives that we fail to
understand how to move on and make the most of it.
A very good example of the Black Swan was the Gujarat earthquake of 2001. On the eve of India’s 51st
Republic Day, an earthquake of 6.9 intensity on the Richter scale with epicenter 20 km northeast of Bhuj hit
the western State of Gujarat. Bhuj is the headquarters of the district of Kutch. Kutch, with a population of
1.47 million, extends over 45,662 sq. kms., and is larger than the States of Haryana and Kerala. The quake
devastated Kutch, and wreaked extensive damage in the adjoining districts of Ahmedabad, Rajkot, Jamnagar,
Surendranagar and Patan. Practically all buildings and structures in the five talukas of Kutch, namely Bhuj,
Bhachau, Rapar, Anjar and Gandhidham were brought down by the quake. The death toll in Kutch was a
staggering 11.5 per 1,000 people. The total loss of life was approximately 20,000. The number of deaths
reported in Kutch itself was around 17,000. Extensive losses were reported from the affected areas.
Earthquakes are not uncommon in western Gujarat. There were three severe tremors in the Bhavnagar area in
October 2000. The tremors in Bhavnagar may have been early warnings of what was to come. Yet the
earthquake that occurred on 26 January 2001, with its epicentre just north of the city of Bhuj, had
exceptionally severe consequences. The event was a Black Swan for the people of Gujarat because the last
major earthquake in Gujarat at Anjar (Kutch) occurred forty-five years ago in 1956, six years after India
became independent. The 1956 earthquake measured 7.0 on the Richter scale, but caused damage only within
the single sub-District of Anjar. By contrast, the 2001 earthquake of 6.9 intensity on the Richter scale,
practically destroyed four large towns and badly affected 23 districts. It was an event of overwhelming
importance throughout the western part of Gujarat – Saurashtra and Kutch - with damage inflicted right
across the State.
Although the Gujarat earthquake was an unexpected event of extremely severe consequences in the lives of
the Gujaratis of India, the Gujarat earthquake is also perfect to demonstrate how to react to a Black Swan
event. All sections of Gujarati society showed a remarkable readiness to declare ‘business as usual’ within days
of the disaster. In fact, a few weeks after the disaster, relief workers saw a sign bearing the words ‘Business as
Page 3 of 8
WHY | CHANGE
Usual’ stuck on a heap of rubble in Bhuj. Three days after the earthquake, trade in Ahmedabad was back to
normal. By the end of the week small stalls had appeared even in the most devastated areas.
The State responded with readiness to adopt risk mitigation factors. Buildings were reconstructed with
earthquake resilient technology, the number of insurances for property increased exponentially. After the
initial relief phase, the Government of Gujarat launched a massive reconstruction and rehabilitation program
in the affected areas. It was a great challenge to conceptualise a massive reconstruction program, yet within a
very short period the Government announced a comprehensive reconstruction and rehabilitation policy
which included assistance for restoration of private houses, economic rehabilitation, and reconstruction of
public infrastructure, preparing the people to face disasters through community participation and multi hazard
preparedness programs; human resource development; and livelihood support, based on sustainable economy
and ecology. Gujarat State Disaster Management Authority was created as the nodal agency to implement the
massive reconstruction program.
A benefit monitoring study done through a third party captures the benefits, which have accrued to the
affected people of Gujarat as follows:
Indicator
Before Earthquake
After Earthquake
Number of Pucca houses
66%
100%
Beneficiaries living in homes with separate
toilets
32%
53%
Insurance of reconstructed houses
6%
49%
People knowing what to do before, during and
after a disaster
0%
80%
Employment level among women
42%
92%
Water supply through pipelines at home
30%
34%
Quality of life index
1%
1.143%
Though the changes as reflected by the benefit monitoring study are impressive, what really can be counted as
the most important change is the approach and attitude of Government and people towards disaster
management itself. The Gujarat earthquake did not only result in changes in focus from relief to mitigation
and setting up of institutional mechanism in Gujarat, but has also brought about a major change at the
national level towards disaster management.
Thirteen years later, cyclone Hudhud made land fall on the eastern shoreline of Andhra Pradesh, India on 12
October 2014. As the cyclone made its final approach to land, it intensified with winds up to 205 km/h
before making contact with the city of Visakhapatnam. The Indian authorities’ disaster preparations ensured
that casualties were kept to a minimum by evacuating up to 4,00,000 people from affected regions. The
cyclone majorly affected coastal Andhra Pradesh and Odisha. Like the Gujarat earthquake, the cyclone
affected a huge portion of the population. However, of the 18.4 million people affected by the disaster only
ninety were killed.
The governments’ response was commendable. Fleets of heavy machinery were deployed to clear the streets.
Scores of laborers were employed to reconnect power and communication infrastructure and armed forces
were mobilised for the immediate aftermath. On a local level, village authorities have been working to assess
and calculate the damage in order to aid the affected population with grants and loans, enabling them to
rebuild their homes and livelihoods. Within a few weeks of the cyclone, the resilience of the community was
Page 4 of 8
WHY | CHANGE
apparent. Farmers had started to clear and replant their crops; contractors had been employed to remove
remaining trees from fields and families had found ways to house themselves in the short term.
The moral of the story you ask me? Give Indians a Black Swan and they will turn it into a peacock! When we
have the ability to do so on a regional or national scale, there is no reason why we cannot implement the same
resilience to change on a personal level.
However, it is not necessary that every change or sudden turn of events can be turned into a silver lining only
after the sudden shock has hit us. Change can be tackled before it turns into an unfortunate event of our life.
This is possible if we are consciously aware of the change in our circumstances and more importantly, of the
implications it can have on us. If we perceive change, and right decisions are taken at the right time, a change
can be converted into a window of opportunity for all the parties involved instead of a blame game which
ends in a massive crash.
Case Study: Mutual Break Away of Hero Honda JV
Background
“Hero” is the brand name used by the Munjal brothers for their flagship company Hero Cycles Ltd. Honda is
a Japanese multinational with subsidiaries all over the world. Honda is primarily known as a manufacturer of
automobiles, motorcycles and power equipment.
The Munjal group (Hero) and Honda entered into a joint venture in 1984 and established Hero Honda
Motors Ltd. in India for manufacture of two wheelers. Hero Honda introduced motor cycles in India which
were known for their fuel efficiency. The technology for the motor cycle came from Honda and Hero
provided a brand name well known at the time in India for its cycles.
At the same time, Honda had entered into a joint venture with Kinetic for manufacture of scooters. In 199798, Honda sold its stake in Kinetic Honda and started its own manufacturing facility for scooters. Honda
began manufacturing scooters independently. Honda assured Hero that it will not manufacture motorcycles.
As a reciprocal assurance, Hero Honda committed not to make scooters for the next five years. The market
for scooters was declining at that time but Honda kept its commitment. It is to be noted that despite the
odds, Honda grew and transformed the scooter market in India. As of today, Honda has a market share of
55-60%. At the same time, by 2010, Hero Honda had become the biggest two-wheeler manufacturer in India.
The main conflict arose in 2010 when Honda India decided to launch a 110cc motorcycle. This segment was a
forte of Hero Honda and formed over 70% of its sales. When Hero Honda approached Honda, Honda
dismissed Hero Honda’s anxiety that the Honda motorcycle will become a direct competitor of Hero Honda
bikes Passion and Splendor. The parties amicably split ways and ended the joint venture of twenty-six years.
In December 2010, both the companies decided to part ways in a phased manner because of unresolved
differences and independent plans. Honda decided to sell its stake of 26% to the Munjal family and to exit
from the venture.
Why the Joint Venture was Feasible in the Beginning
In the late 1980s, Japan-based Honda was looking at entering the Indian two-wheeler market (both scooters
and motorcycles) through joint ventures. Honda had been the largest manufacturer of motorcycles in the
world since 1959. In terms of automobile manufacturing, it was the sixth largest in the world.
For entering the motorcycle segment in India, Honda approached Hero. Hero’s bicycle business, mopeds, and
wide distribution network attracted Honda. Both the companies started negotiating in 1983 and entered into a
Page 5 of 8
WHY | CHANGE
joint venture in 1984. The joint venture agreement was for a period of ten years. As per the deal, Honda
agreed to provide the technical know-how, set up manufacturing facilities, and carry out Research and
Development activities. In 1986, Hero became the largest bicycle manufacturer in the world.
On the board of Hero Honda, Honda appointed four members and the Munjal family had four
representatives. Employees from Honda, Japan, were brought to take care of the quality and engineering
functions. Other functions like marketing, finance, HR, and daily operations were managed by the local staff.
In 1984, the plan of the parties was that the joint venture was only for domestic production and consumption.
No one could have predicted that one day Hero Honda will become the world’s biggest player in the
motorcycle segment. Moreover, in 1984, exporting from India was not feasible due to various regulatory
strongholds.
Why the Joint Venture was no more Feasible
According to industry sources, there were three constraints on Hero Honda which forced the split. The first
was the issue of exports. According to the shareholder’s agreement signed in 1984, Hero Honda as a joint
venture could only undertake domestic production and consumption for India. However, as chance would
have it, in 1991, India’s economy was liberalised and exports became an attractive option. Hero Honda was in
an ironical position for eleven years since 2001. Hero Honda was the largest producer of motor cycles in the
world with volumes growing from 1 million to 6.2 million in 2011-12. But Hero Honda could not export
because of the restriction prescribed in the Shareholders Agreement. As a partial remedy to the situation, the
shareholders agreement was modified to allow exports of certain limited products to Sri Lanka, Bangladesh,
Nepal and Columbia.
In 2008, Hero Honda demanded the right to export to other countries. To this, Honda replied that Hero
Honda will have to compete on its own since Honda did not have influence over its subsidiaries abroad and
hence, Honda could not arrange for the subsidiaries to import the JV’s products. Honda subsidiaries are very
independent from their parent company. They have the discretion to decide which countries and which
companies they want to source the products for their country from.
Another issue was related to the representation on the board of the joint venture. Out of the four Honda
representatives on the board of Hero Honda, one executive director was the head of Honda in India, to
whom the Indian Honda, a competitor of the joint venture reported. Another representative on the board of
the joint venture was located in Bangkok and represented Honda’s two-wheeler business in Asia. The other
two representatives were nominated by Honda directly. But the two directors who represented other Honda
subsidiaries had access to the plans and strategies of the joint venture even while they were also on the board
of the joint venture’s competitors. On the other hand, Hero Honda did not have access to the plans of those
Honda subsidiaries. Hero Honda viewed this as a major conflict of interest.
The last bone of contention was the joint venture’s wish to undertake its own research and development
independently. Honda refused this request outrightly.
What the Parties took away from the Break
Since the split was amicable, and based on extensive negotiations between Honda, Hero Honda and the
Indian promoter group (Munjal family), all the parties benefited from the split. Honda sold its stake in Hero
Honda at a price less than its market value. Honda agreed to provide Hero Honda the products that were
being developed for the joint venture at the time of the split. These products were not to be shared with its
own subsidiary. Honda’s gesture reflected its appreciation for the fact that it was this joint venture that built
the Honda brand in India over 26 years of a win-win relationship.
Page 6 of 8
WHY | CHANGE
For Hero, the biggest advantage was that after Honda’s exit, Hero Honda is now free to export all over the
world. The joint venture split at a time when Hero Honda was the largest two-wheeler manufacturer in India
by a huge margin. Although sales dropped slightly after the break up, Hero Honda has continued to maintain
its margin above the rest. The biggest concern for Hero Honda was substituting the technology which was no
more available from Honda. In 2012, Hero Honda tied up with AVL Technologies, Austria to develop its
own in-house capabilities in engine technologies. Its technology tie-up with Austria based AVL will allow
Hero MotoCorp to develop technology for its bread and butter 100cc bikes such as Splendor and Passion.
The tie up will also help Hero Honda take the 150cc CBZ and Hunk to the next level to meet intensified
competition from rivals such as Honda and Bajaj Auto in this high margin segment.
Also, this new in-house capability would allow Hero to develop engines independently of its estranged partner
Honda Motor Company, which currently breeds its entire lineup of bikes and scooters and has become the
world’s largest two-wheeler maker by sales. The erstwhile partners now compete in the 11 million strong
Indian two-wheeler market.
So, on one side of the spectrum are the sleepwalkers who cannot see a dispute as big as a truck rushing
towards them unless it is just going to collide with them. On the other side of the spectrum are the hyper
vigilant people who are always on the lookout for things that can go wrong. These people run from anything
that can hurt them even if they are not sure that such a thing is actually in their vicinity. These people invite
their own disputes by being anxious, suspicious and highly insecure all the time.
If you think you are one of them, you need to take a break, join the sleep walkers for some time because you
have probably made all provisions and plans for the next hundred disputes that can come your way. It is
unfair of us to take our mind for granted. The mind is also like a machine, if you stay anxious all the time and
make your mind work overtime, it is bound to get heated up and crash. Such an event will definitely not be a
Black Swan. It will just be self-invited trouble.
The Earth is coming to an End
Once upon a time when Brahmadatta reigned in Benares, the Bodhisattva [the future Buddha] came to life as
a young lion. And when fully grown he lived in a wood near the Western Ocean where a grove of palms
mixed with vilva trees. A rabbit lived in the forest beneath a palm sapling, at the foot of a vilva tree.
One day this rabbit, after feeding, came and lay down beneath the young palm tree. And the thought struck
him, “If this earth should be destroyed, what would become of me?” At that very moment, a ripe vilva fruit
fell on a palm leaf. At the sound of it, the rabbit thought, “This solid earth is collapsing,” and starting up he
fled, without so much as looking behind him. Another rabbit saw him scampering off, as if frightened to
death, and asked the cause of his panic flight.
Then the rabbit stopped a moment and without looking back said, “The earth here is breaking up.”
And at this the second rabbit ran after the first one. Another rabbit caught sight of the two rabbits running
and joined in the chase till one hundred thousand rabbits all took to flight together. They were seen by a deer,
a boar, an elk, a buffalo, a wild ox, a rhinoceros, a tiger, a lion, and an elephant. And when they asked what it
meant and were told that the earth was breaking up, they too took to flight. So, by degrees this host of
animals extended to the length of a full league.
When the Bodhisattva saw this headlong flight of the animals, and heard the cause of it was that the earth was
coming to an end, he thought, “The earth is nowhere coming to an end. Surely it must be some sound which
was misunderstood by them. And if I don’t make a great effort, they will all perish. I will save their lives.”
Page 7 of 8
WHY | CHANGE
So, with the speed of a lion he got before them to the foot of a mountain, and lion-like roared three times.
They were terribly frightened at the lion, and stopping in their flight stood all huddled together. The lion went
in amongst them and asked why there were running away.
“The earth is collapsing,” they answered.
“Who saw it collapsing?” he said.
“The elephants know all about it,” they replied.
He asked the elephants. “We don’t know,” they said, “the lions know.”
But the lions said, “We don’t know, the tigers know.”
The tigers said, “The rhinoceroses know.”
The rhinoceroses said, “The wild oxen know.”
The wild oxen, “the buffaloes.”
The buffaloes, “the elks.”
The elks, “the boars.”
The boars, “the deer.”
The deer said, “We don’t know; the rabbits know.” When the rabbits were questioned, they pointed to one
particular rabbit and said, “This one told us.”
So, the Bodhisattva asked, “Is it true, sir, that the earth is breaking up?”
“Yes, sir, I saw it,” said the rabbit.
“Where were you living, when you saw it?” he asked.
“Near the ocean, sir, in a grove of palms mixed with vilva trees. For as I was lying beneath the shade of a
palm sapling at the foot of a vilva tree, I thought, ‘If this earth should break up, where shall I go?’ And at that
very moment I heard the sound the breaking up of the earth, and I fled.”
The lion thought, “A ripe vilva fruit evidently must have fallen on a palm leaf and made a ‘thud,’ and this
rabbit jumped to the conclusion that the earth was coming to an end, and ran away. I will find out the exact
truth about it.”
After hearing what the rabbit said, the lion went to the foot of the vilva tree. Bodhisattva saw the spot where
the rabbit had been lying beneath the shade of the palm tree and the ripe vilva fruit that fell on the palm leaf.
After having carefully ascertained that the earth had not broken up, he placed the rabbit on his back and with
the speed of a lion soon came again to the herd of beasts.
Then he told them the whole story, and said, “Don’t be afraid.” And having thus reassured the herd of beasts,
Page 8 of 8
WHY | CHANGE
he let them go. If it had not been for the Bodhisattva at that time, all the beasts would have rushed into the
sea and perished. It was all owing to the Bodhisattva that they escaped death.
Source: Daddabha Jataka, The Jataka, Vol. III, tr. by H.T. Francis and R.A. Neil, 1897, http://www.sacredtexts.com/bud/j3/j3023.htm#fn_29 (last Accessed on 24 March 2015).
End of Document
HOW | PROCESS
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES > DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
DISPUTES
HOW | PROCESS
When we are in the process of unlearning our outlook of disputes, it is also important for us to re-evaluate the
means through which we resolve our disputes. We now know ‘why’ we do it. However, most of the times
‘how’ we do it is as important as ‘why’ we do it. Our intentions and motives may be positive but if our way of
expressing our intention or motive is not right, we can end up hurting others and many times, ourselves in the
process. In the same way, how we go about managing and preventing disputes is also important. We cannot
just go back to the other disputing party and say, “You see, I have a problem with accepting so many changes.
I will not be able to accept these changes because I just cannot. I hope you are fine with that.”
Doing things, the right way can go a long way in preventing future complications. For instance, people who
have attended first aid classes know that cradling and carrying a person with a spinal injury can leave the
person paralysed for the rest of their lives. The intention of the helper may be to help the injured get medical
aid as soon as possible but the end result may be disastrous. Similarly, if a person is electrocuted and still in
contact with the live wire, touching the person in an attempt to separate the person from the live wire can
further electrocute the good Samaritan.
The process of dispute making begins much before the dispute actually takes place. For every dispute to take
place, it is essential that two people meet or cross each other’s paths some way or the other. These two people
may be friends, neighbours, business colleagues, buyer-seller, lovers, business partners or maybe just two
people driving car on the same highway at the same time. There is contact, interaction, reaction and wear and
tear. This contact and interaction may or may not lead to plans of a long-term relationship. Sometimes, people
with different perceptions of life rub people off the wrong way in their first meeting itself. The mood of the
interaction is set right from the time the two or more people notice each other. Before they even greet each
other, the body language of the parties towards each other sets the pace of the relationship.
Every person enters into a personal or professional transaction with certain pre-decided needs and interests.
These needs and interests transform and change with the changing nature of the parties’ perception towards
each other and various other external factors which have nothing to do with the parties themselves. When
perceptions, needs and interests of the parties’ clash, the first signs of a dispute emerge. Then the dispute
‘actually happens’- you wake up one day and realise your business partner defrauded you, the bitter fights with
your spouse head towards divorce, the land you bought by putting together penny with penny is encroached
on, the mobile you ordered online with so much excitement is delivered broken.
In conflicts each person considers that the person’s well-being is being threatened and reacts based on their
Page 2 of 2
HOW | PROCESS
perception of the situation. However, the first thing we need to internalise is this - “There is no way” or
“Resolving a dispute is impossible” are perceptions not facts. Audrey Hepburn, the British actress and
humanitarian famously said, “Nothing is impossible, the word itself says ‘I’m possible’!” People who are not
interested in coming up with a long-lasting solution have always felt that a problem has no solutions but a
winner always believes that there is no other external solution to a problem. The solution is hidden inside the
problem itself. Like an onion as you peel the layers off - negative perceptions, hidden interests, additional
information, the solution stares at you in the face for you to adopt. What we really need is a right process,
proper pattern analysis, patient understanding, more information about the problem and an effective method
to deal with the problem and within no time you can emerge with a concrete and durable solution.
Every personal and professional relationship is like a business cycle. In a business cycle, the business booms
and prospers, it slowly recedes and goes through a recession phase. After passing through the recession phase,
it reaches a slump - the lowest point of a business cycle. However, every business facing a slump does not end
up going bankrupt. With the right booster measures, the business recovers and rises again like a Phoenix to a
boom phase. This of course does not mean that a business or an economy will not face recession again. Boom
and slump is the musical symphony of a business cycle. A relationship also follows a similar pattern. In the
boom phase, we forge bonds, set-up partnerships, create a professional network of buyers, sellers, producers
and distributors. The English famously say familiarity breeds contempt. The more we deal with the same
people in personal or professional life, the more we grow wary. The enthusiasm and vigour fades giving place
to suspicion and self-preservation and the relationship hits the slump phase - dispute. But, like a business
cycle, adopting the right process in resolving a dispute can bring the relationship back to its boom phase.
Once we have plunged headlong into a method of dispute resolution, there is no looking back. Sometimes
our wrong choice makes the situation irreparable. Even if we realise that we chose the wrong way of
addressing a dispute, we may not get the chance to go back and make amends. So, spending a reasonable
amount of time before taking a decision regarding the process you wish to adopt to resolve a conflict may be
an investment of time you think is wasted but in the long run it may save your effort, business and personal
relationships, public reputation and image in the market.
Interestingly, the most common roadblock we have faced in convincing people to re-look at the process they
adopt for dispute resolution is their perception that their present process ‘works’. So, they do not want to
meddle with something that works fine. One of the main reasons most people think everything is ‘fine’ is
because disputes are like an asymptomatic virus. They have a lot of hidden costs that go unnoticed unless you
really get yourself ‘tested’. One way of self-evaluating whether the process you have to deal with differences
and potential disputes is to undertake a cost and time analysis of the disputes you are presently in. While
doing this exercise, write down the obvious costs being incurred to keep the dispute ‘live’. Then add to these
hidden costs you may not have thought of-average time spent by you or your employees on the dispute,
opportunity cost of losing the client, cost of finding the alternate vendor, cost of stalled production or delay
in delivery of services, energies which could have been expended otherwise in expanding or optimizing the
business. Multinationals generally argue that since they have a dedicated legal team, the costs take care of
themselves and are gainfully absorbed internally. If you are in a similar situation, ask yourself-what would you
have your legal team do? Negotiate a settlement and then further, negotiate deals which propel growth or
firefight forest fires you set yourself? P.S. the forests belong to you. An interesting survey in the European
Union showed that companies benefited by adopting a pledge to opt for mediation as a dispute resolution
mechanism of first resort. Another one shows that fortune 500 companies view negotiation and mediation as
the first steps to dispute resolution food for thought?
End of Document
WHY | PRINCIPLES
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES > DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
DISPUTES
WHY | PRINCIPLES
Since time immemorial, humans have used different methods to resolve their disputes and differences. The
general method of dispute resolution in day to day life for common man was taking the dispute to the local
king or Panchayat, seeking a just and effective solution. One ingenious yet, very dangerous method of dispute
resolution in the Western world was challenging each other to a duel. When two men disagreed on an issue of
utmost importance and frequently, when the question involved winning the favour of a woman, the two men
would challenge each other to a duel of sorts. They would face off with a sword and fight until death. After
guns came into the picture, the men would go to a deserted field, stand at a distance from each other and
shoot each other at the same time. The one with the better aim would shoot the other and the one who
missed would surrender to defeat if he was left alive in the ruckus. At that time, death in a duel was
considered legal. Adopting the duel as a mode of dispute resolution was frequently linked with the attributes
of honour and pride. The person who was defeated retreated gracefully, yet would gain respect for choosing
the method to prove his bravery and firm resolve.
In the Indian epic Ramayana based in the Tretaya Yug, King Dashratha of Ayodhya and one of his wives
Kaikai disagreed on who should become the heir of the kingdom. King Dashtratha had four sons Ram,
Lakshman, Bharat and Shatrughan. Although Ram born to Dashratha’s first wife Kaushalya, was the eldest
son and the heir apparent, Kaikai wanted her son Bharat to become the king. Years ago, Kaikai had saved
King Dashratha’s life on the battle field. Out of gratitude, King Dashratha had granted Kaikai two wishes
which she could enforce any time during the lifetime of King Dashratha. Kaikai enforced her two wishes and
demanded that Bharat be made king of Ayodhya and Ram be sent in exile for thirteen years. When Ram was
told what was expected of him, he probably had two options - first, fight back for his rights and if required,
wage a war or second, acquiesce to his father’s wishes. He chose the second option and decided to end the
dispute by forfeiting his right and going in exile. The principles which governed Ram’s decision to resolve the
dispute were peace, duty towards his parents and sacrifice.
Again, in the epic Mahabharata based in the Dwapar Yug (said to have occurred after Tretaya Yug), the families
of Kauravas and Pandavas fought over the kingdom of Hastinapur. Dhritrashtra and Pandu were brothers.
Although Dhritrashtra was the elder brother, he was denied kingship because he was blind and hence
considered not eligible as per the laws of ascendancy. Pandu was made king. However, due to a curse placed
on Pandu, he left the throne to live in the forest. Consequently, Dhritrashtra was made king. In due course of
time, the children of Dhritrashtra and Pandu were born. Yudishthir, the son of Pandu was eldest of them all.
But Dhitrashtra wanted his son Duryodhan to succeed him. A cold war prevailed for years between the
Kauravas and Pandavas over the kingdom of Hastinapur. Various tactics were resorted to by Kauravas to
Page 2 of 4
WHY | PRINCIPLES
resolve this dispute in their favour. The Kauravas even tried to kill the Pandavas deceptively by sending them
into a house of wax and setting it on fire. Finally, the Kauravas invited the Pandavas to a game of dice and
won their kingdom and even their freedom as winnings of the game. The Pandavas were also sent to thirteen
years of exile. When they returned, the Kauravas refused to return the kingdom to them as agreed. The
Pandavas also had two options - first, to maintain family peace and remain the underlings of the ruling family
or second, to fight their own blood and win over their kingdom. They chose the second option and decided
to fight their brothers, uncles and nephews to get what rightfully belonged to them. The principle which
governed the Pandava’s decision making process while resolving the dispute was a desire to set right the
wrong done to them. They decided to take by force what rightfully belonged to them.
In both Tretaya Yug and Dwapar Yug people chose two diametrically opposite ways to resolve disputes over
kingship. In Ramayana, Dashratha soon died of sorrow, Bharat refused to ascend the throne and waited
thirteen years as the administrator of Ayodhya for Ram to return and Kaikai forever regretted her decision. In
Mahabharat, the Pandavas and Kauravas waged an epic battle against each other. The entire family of
Kauravas was annihilated and many family members of the Pandavas including their own children lost their
lives in the ‘War for Justice’. We can sit in judgment on their decisions and argue perpetually on the merits of
who was right and who was wrong in the paths they chose to resolve a dispute. Yet, unless someone has
personally faced a situation, one can never fully gauge the intensity of the problem and the reasons why a
person chose to resolve a dispute in a certain way. It is famously said, “Only the wearer knows where the shoe
pinches”.
In the present age also, people choose to resolve their disputes through various means. Thankfully, the
number of people who kill each other over disputes are far and few between as compared to the actual
number of disputes which happen on a daily basis in India. However, consciously or sub-consciously, every
time we choose to resolve a dispute through a certain method, we evaluate the various pros and cons of using
that method. These pros and cons are determined by our fundamental values - moral, economic, religious and
political. Thus, each time we use a particular process to resolve a dispute, no matter what the substantive
outcome might be, we make a statement about the values we cherish and the type of people we want to be.
Some of the principles which govern our choice of dispute resolution mechanism are as follows:
•
Publicity: Whether the matter can be made public or is it private.
•
Effectiveness: Whether the mechanism is time and cost effective.
•
Decision Making: Whether the process allows you control over decision making.
•
Binding: Whether the process can be made binding on the disputing parties.
•
Result: Sometimes we choose a process based on the result expected from the process.
•
Relationship: Whether the disputing parties have a commercial or personal relationship, their priority,
intensity of relationship and blood ties.
•
Compliance: How the disputing parties will comply and after their compliance will the solution be
lasting.
•
Fairness: Will the disputing party get what they want, will it make them happy.
•
Past Experience: Whether in the past a method has been satisfactory for resolving a dispute.
In present day life, we generally resort to negotiation, litigation, arbitration or mediation to resolve our
disputes. We resort to negotiation voluntarily. It is an informal process which allows both parties to place
before each other their understanding of the situation and what in their personal opinion should be the course
of action. The process relies heavily on bargaining of demands. It can be undertaken confidentially without
Page 3 of 4
WHY | PRINCIPLES
involving any third party but the process will be fruitful for the disputing parties only when both parties are
willing to actually do or not do as promised to each other in the course of negotiation. The process is fair
when both parties have bargaining power. For instance, the process may not work where one party has
substantially more power in terms of finances or influence. In terms of sustaining relationships, negotiation
when done correctly can strengthen relationships and bridge any other misunderstandings which a party may
have had. The process is flexible. Parties fix their own agenda and have full control over the decision-making
process and the final outcome.
Arbitration is a formal process of dispute resolution. Commercially, if the process of negotiation fails, parties
many times resort to arbitration for dispute resolution. Arbitration is comparatively more flexible than
litigation but less flexible compared to negotiation and mediation. The parties can choose the jurisdiction, the
country whose laws and procedures shall apply to the dispute resolution process and finally, the parties
choose a third party who will adjudge the dispute for them. Once this third party, the arbitrator, has been
appointed, the parties lose control over the process. The final outcome or how the dispute can be resolved is
decided by the arbitrator. The parties have very limited say in the matter. Again, in terms of maintaining
confidentiality and avoiding publicity, arbitration is more confidential than litigation but less confidential than
negotiation and mediation. Since the process relies on the premise that one person is ‘right’ and the other
person is ‘wrong’, there is little scope to come to a solution which is agreeable to both the parties. Hence, the
outcome of the dispute provided by the arbitrator has a tendency to become public easily in India because the
person who ‘loses’ in an arbitration may appeal the award in court and the award of the arbitrator and the
entire proceedings become public documents. Owing to this tendency to appeal, the process also becomes
time-consuming and the dispute may take years to resolve.
Another method which people resort to is mediation. Mediation, unfortunately, is the youngest of all dispute
resolution processes and like the youngest in the family, is many times misunderstood in India. In mediation,
a third, impartial and neutral party (the mediator) manages the interaction between the disputing parties to
ensure constructive negotiation, thus helping them to agree on a resolution that is fair, durable, and workable.
The disputants, not the mediator, create, and agree on the final decision. In India, the mediator sometimes
unintentionally acquires an adversarial role and may end up advising the parties what he thinks is the solution
to the dispute instead of aiding the parties to arrive at their own solution. Mediation, when undertaken as per
international best practices is a strictly confidential process where the identity of the parties or their terms of
settlement are never disclosed in any public place including in court proceedings. Such confidentiality invites
candid communication and allows disputing parties to react to issues without any concern of how the
public/their family/other business colleagues will perceive them based on what they say. This promotes
reduced hostility and improved understanding and relationships. At the same time, the lack of publicity means
that the public cannot monitor whether social justice concerns are being met in individual cases.
The process is voluntary and informal. So, the process is effective only when the disputing parties come into
the mediation room with an intention of resolving the dispute amongst themselves. Mediation requires the
disputants to assume the major responsibility for resolving their conflict. Self-determination and outcome
control impact the parties’ participation and relationship, as well as the durability of the resolution. The
mediator’s presence prevents any attempts of one disputing party to ensure that the outcome is only in his
favor and enhances procedural fairness. The parties’ endorsement of the outcome hopefully reflects their
belief that the resolution was fair.
Lastly, litigation involves approaching the court system for justice. The legal system is based on ensuring
justice, equity and fairness. The Indian court system was originally setup by the British to enforce their laws
on the residents of their colony i.e. pre-independence India. In fact, appeals from India were referred to the
Privy Council in Great Britain (now United Kingdom) till 1949. To be fair to the British, we would have had
to adopt the court system for dispute settlement some time or the other like the rest of the world. The court
systems of present day, however, can in no way be underestimated. It is the third pillar of our democracy and
Page 4 of 4
WHY | PRINCIPLES
has played a key role in protecting the interest of its citizens. While choosing this method of dispute
resolution, the first principle a party considers is that justice shall be done. Additionally, some modern-day
considerations include factors such as the process being completely public and transparent bringing all
relevant facts, commercial terms and documents into public record. The court system is also a fact-finding
mechanism through which investigations may be ordered into the workings of an organization. Parties do not
have any say in the final outcome of the matter. Since one party ‘wins’ and the other party ‘loses’, the
professional or personal relationship of the disputing parties generally does not sustain a litigation. The
process is more time consuming than arbitration, negotiation and mediation. The process is generally more
cost effective than arbitration but less compared to mediation and negotiation.
Again, like in the case of the dispute resolution methods used in Ramayana and Mahabharat, we can have a
centuries-long debate on which method is most effective or which method should be chosen. In all fairness,
each method of dispute resolution has merits as well as demerits. It is the principles which a party most values
and the priority which a party gives to various factors such as publicity, cost, time, confidentiality, durability of
relationships, control over the process and outcome, requirement to set a precedent, etc. that finally
determines the process which a party will choose to resolve a dispute. In the famous play Hamlet by William
Shakespeare, the hero Hamlet proclaims that his kingdom is a prison for him. When people disagree with his
opinion, Hamlet concedes that we are all entitled to our own opinion. Nothing is either good or bad but
thinking makes it so.
End of Document
WHY | PRACTICALITIES
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES > DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
DISPUTES
WHY | PRACTICALITIES
The path that we choose to resolve our dispute is also influenced by various practical considerations. In fact,
many of us are slaves to our problems. We feel helpless and alone when we face disputes. Instead of
evaluating the process, we choose to resolve a dispute based on the various characteristics of the process, we
choose to select a process where we will be least affected by what we think is our ‘handicap’. Some of the
most common reasons for choosing or not choosing a dispute resolution process are discussed below:
Power
Our common perception is that people with power use any process that advances their agenda. This power
may be financial, influential or even emotional. We believe that not having ‘power’ is our handicap and hence,
we must dance to the tune of those that have this power.
No one denies that in some specific circumstances some individuals have more power than others. It is also
true that people who have unilateral power to get what they want will employ the best resources to ensure
that they get what they want in case of a dispute. Indeed, they have no need for anyone; they should simply
do whatever they must in order to achieve their goals. But it is extremely rare that anyone has this much onesided power. Power is like a very sensitive weighing scale where the balance continuously shifts from one side
to the other. What is most important for us to remember is that we must first come out of our false
assumption that we do not have power in this world.
Most of us have some power in all situations. Even an insect as small as an ant can lift objects 5000 times its
body weight. In comparison, we humans are the most advanced species of animals on this planet. Our brains
are much more advanced than most species of animals. We must not forget that some people may act as
though they are both infallible and invincible, but we are all vulnerable in some ways. If it is your boss at the
office, there is a grievance redressal mechanism where you can file your complaint. If it is a government
servant or a government department, you can file a right to information application. Whether people
recognise that they have power or more importantly, have the desire and courage to use it, are separate
considerations that have very practical consequences.
Self-Interest
Another practical consideration which clouds a person’s decision regarding the process for dispute resolution
is self-interest. People choose the dispute resolution process that they believe will enable them to ‘win’ and
Page 2 of 3
WHY | PRACTICALITIES
teach the other party a lesson. Although consideration of factors such as participation in the dispute
resolution process, saving relationships and fairness in the process may sound wonderful on paper, people
rarely consider these factors. Hobbes, the visionary political thinker famously proclaimed ‘Man is a wolf’ and
based his entire political theory on this premise. As Hobbes rightly pointed out, men are inherently suspicious
and if allowed to be in their natural form, humans are selfish. The place where the truth of Hobbe’s analogy is
most evident is in the arena of dispute resolution. People act to further their self-interest. If someone expects
to win a matter in court, the person will sue; if the person thinks he might lose, he will consider other options.
Yet, ‘self-interest’ is a subjective term. The dictionary meaning of the term ‘self-interest’ is ‘a concern of one’s
own advantage and well-being’. If your raw material supplier delivers the material late which leads to a loss in
your business, what is your self-interest? Hounding the supplier from court to court and getting the highest
amount of damages possible. In the process, you may have to find another supplier with the same or better
quality of raw material, at the same or less cost and delivery terms. If you do not find a supplier, the
production may come down, get delayed or even come to a standstill. Or, is it in your self-interest to negotiate
a deal with your raw material supplier and get a discount for future deliveries to compensate for the losses?
Psychological Distortions
As discussed in this chapter, our mind convinces us of something that is not really true. These inaccurate
thoughts are usually used to reinforce negative thinking or emotions - telling ourselves things that sound
rational and accurate, but really only serve to keep us feeling bad about ourselves. These psychological
distortions also convince us that there is no easy or beneficial way out of a dispute. We become convinced
that once a dispute has happened, it can only lead to loss.
Many disputants see one another as unreasonable and conclude that it may be pointless to work with an
unreasonable person. Experiencing self-righteous anger, disputants want a judge to proclaim them right and
are over-confident about their chances for success. Suggestions from the other side - including a proposal to
discuss the matter amongst themselves are viewed skeptically. However, when disputants interact with a
positive mindset and in the presence of a third-party buffer, the disputing parties can work through their
issues even though disputants begin with little esteem or trust for one another and little hope that talking to
the other party will lead to anything constructive. Mediation is an excellent forum to test whether perceptions
are in fact distorted and to gain an appreciation of the other side.
Strategic Posturing
Many times, a disputing party is over-confident about their chances of ‘winning’ or about how ‘right’ they are.
They do not want to feel vulnerable by opening up to the other side or signaling a willingness to compromise.
Parties often adopt competitive strategies to make the other party succumb to its unreasonable demands. For
example, parties might take extreme and inflexible positions and refuse to share information with one another
about their real interests. In such circumstances, it is logical to think mediation or negotiation will be fruitless.
Nonetheless, a skilled mediator and negotiator, using such tools as private meetings, will be able to see where
movement is possible and guide parties accordingly. When parties are rigid and refuse to reveal the true
reasons for which they want to fight tooth and nail for something, it becomes more important to dig out the
reasons why the dispute is really happening. A garden can never grow healthy with vibrant flowers, green
foliage of trees and abundance of fruits unless the weeds in a garden are pulled out from their roots. You
leave the roots behind and the same weeds will keep cropping up over and over again, stunting the growth of
your beautiful garden.
Self-Protection
Page 3 of 3
WHY | PRACTICALITIES
A savvy person does not put all its eggs in one basket. Rather than only using one method of dispute
resolution, the person might deploy a combination of dispute settlement processes, moving from one to
another as his interests dictate. Even while using a single dispute resolution mechanism like litigation, Indians
have a tendency to file cases at as many forums as possible and then pursuing each matter till the highest
appellate authority. For frivolous matters, people may file criminal complaints in the hope that the other party
succumbs out of fear of going to jail.
In this bid to ensure that one does not lose, we pay less attention to the way in which using one process can
distort or undermine the use of others. The posturing that accompanies the assertion of legal rights escalates
the tension and bitterness among the disputants, thereby undermining the constructive future relationship
that the negotiation process, when operating alone, is designed to promote. By placing the negotiations within
the framework of court proceedings, one potentially undermines the problem-solving spirit so essential to
effective negotiations. Getting an agreement in such circumstances is not impossible, but it is normally more
difficult. The dynamic among the parties would be significantly different if they committed themselves to
trying to resolve their differences through joint discussions for a specified time period and initiating litigation
only if such efforts failed.
It is very important for us to acknowledge that we cannot always protect ourselves from every blow in life.
According to a Greek legend, when Achilles was born, his mother, in an effort to make him immortal, took
Achilles to the Styx river and dipped him. She held him by one heel. The area where her fingers held him
remained dry. As the heel was not touched by the waters of the Styx, it was the one vulnerable place on
Achilles. Achilles became the hero of many battles during the Trojan War. Paris, Prince of the Trojans, shot
an arrow in the heel of Achilles. Because the heel was the one spot untouched by immortality, Achilles died.
Yet, is it not more important to remember that before Achilles died, he lived the full life of a warrior and died
the death every warrior prays for-on the battlefield, fighting till his last breath.
End of Document
PHYSIOLOGY OF DISPUTES
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER I
UNLEARNING WHAT YOU KNOW ABOUT DISPUTES > DISPUTES
CHAPTER I UNLEARNING WHAT YOU KNOW ABOUT DISPUTES
DISPUTES
PHYSIOLOGY OF DISPUTES
“You hear in movies ‘follow the money’; in my world I try to ‘follow the oxygen and glucose,’”-Jeremy Lack, Mediator and
Researcher in Neuroscience in Conflict Situations.
The writer Anais Nin once said, “We do not see things as they are. We see things as we are.” The advances
made in understanding how the brain works recently have reaffirmed her statement. This is then an important
area of intersectional study for dispute resolution professionals like lawyers, judges, arbitrators, mediators and
negotiators. One of the key findings from these neurological studies is that we react the way we do in dispute
situations due to how our brain is wired and has evolved right from the time we were monkeys. Good newsyour knee jerk reaction to stress situations is not your fault. Your brain made you do it. The bad news, and the
reason it is taking time for ADR to take-off in the right way, is that it takes conscious effort to change how
you react to dispute situations. But it is possible to modify your behavioural patterns and our book discusses
how to do this in the succeeding chapters.
Coming back to the physiology of disputes, the brain impacts how we react to disputes on a short-term basis
as well as on a long-term basis. To keep it simple, we shall be using the Tri O/S Model developed by Centre
for Affective Sciences (CISA) in Switzerland under Professor David Sander and Dr. Olga Klimecki, which
includes two dispute resolution professionals, François Bogacz and Jeremy Lack. The brain has developed
three layers and each layer evolved during a different phase of human evolution. For the purpose of our
discussions here and throughout the book, we shall call them ‘Operating Systems’ or ‘O/S’.
O/S 1
•
Otherwise called ‘Reptilian Brain’
•
Responsible for ‘fight-flight-freeze’ response
•
The emotional operating system
•
Otherwise called ‘The Limbic System’
•
Responsible for generating feeling of fear, safety, anger,
sadness, appraising whether one is being treated as an
O/S 2
Page 2 of 2
PHYSIOLOGY OF DISPUTES
outsider (anti-social) or part of the group (pro-social)
•
The social operating system
•
Otherwise called ‘The Neocortex’
•
Responsible for rational decision making and analysis
•
The rational operating system
O/S 3
Our brain generally has limited amount of oxygen and glucose available for consumption. This means that
every time there is an outside situation that requires evaluation, the brain needs to decide which operating
system should be involved in handling the situation and allocates higher glucose and oxygen to those
operating systems. O/S 1 and O/S 2 are generally more involved in deciding who gets how much specially in
stressful situations like dispute negotiations or on table meetings or even meetings with advocates and end up
leading to a distribution where O/S 3 gets the least oxygen and glucose. As a consequence, although we
believe we are making a rational decision, our decision is heavily influenced by our emotions and a feeling of
being treated as an outsider (we behave and react anti-social or pro-social on the basis of our perception of
being treated as an outsider or part of the group respectively).
Similarly, a cycle of hormones regulates our willpower in situations such as decision making in relation to
dispute resolution, negotiation and even mediations. In a stress situation, the hypothalamus, anterior pituitary
and adrenal cortex get triggered to produce cortisol. When the body produces cortisol. Increase or decrease in
cortisol signals the body’s perception of whether the stress situation is increasing or decreasing. When cortisol
is first produced, the CEO of the body, Prefrontal Cortex takes over decision making in the brain. It is further
triggered by noradrenaline which generates the fight or flight response and dopamine which generates a
feeling of reward.
When this flow is very low, the body feels fatigued or bored, with an optimum flow, your prefrontal cortex
reaches its peak of effectiveness. This can be compared to the time before a big presentation you are well
prepared for. You feel a mixed feeling of anxiety as well as motivation. This is a phase in which your brain is
working at its rational or cognitive best. However, when the body keeps pumping cortisol, like in a longdrawn dispute, the body goes into ‘survival mode’. It keeps only the brain functioning and shuts down
systems that it thinks are non-essential like the immune system. The prefrontal cortex goes into ‘overload
mode’ and shuts down. These are the times when you feel loss of self-control such as anger, outburst, you
lose focus and the capacity of rational decision making. Finally, you end up reverting to habits, impulses and
emotions.
If you are able to solve your dispute, the cortisol level drops and signals ‘all is well’ to the body putting things
back to normal. Time to learn how to go to ‘all is well’ in the succeeding chapters.
End of Document
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
“The great enemy of truth is very often not the lie- deliberate, contrived and dishonest- but the myth- persistent, persuasive and
unrealistic. Too often we hold fast to the cliches of our forebearers. We subject all facts to a prefabricated set of interpretations. We
enjoy the comfort of opinion without the discomfort of thought.”
- John F. Kennedy
End of Document
DE-ESCALATION OF CONFLICT
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
DE-ESCALATION OF CONFLICT
Conflicts are like ladders. It is most famously depicted as Glasl’s Nine-Stage Model of Conflict Escalation.
The authors have adapted the model to create a more detailed analysis of how conflicts escalate and deescalate.
When a conflict begins, it is only in the nature of underlying tension between the parties. As it increases
further, it turns into a verbal debate where each party counters what the other party contends. If the dispute
escalates further, the parties stop talking to each other and take actions like stopping payments or supply of
goods. The levels of tension, debate and actions replacing words are the best phases for intervention through
de-escalating neutral third parties. At this phase, parties talk about the issue or problem at hand. The conflict
is highly amenable to resolution and if brought to table, the parties can be convinced for facilitative
negotiation easily.
If the conflict however, is escalated further, parties move to phase two. They start narrating their version
stories to other people and surrounding themselves with people who agree with their viewpoint or add further
to their narrative. They start disparaging each other and may even exaggerate or lie to make themselves look
like the victims. Finally, when nothing works, parties may threaten each other verbally or through actions like
issuing legal notices or notices of arbitration. At this stage, the main aim of parties is to target each other’s
public image and establish their position as the oppressed. Proving oneself right and other person wrong
becomes an ego issue. Conflicts at this stage are also feasible for neutral intervention. The neutral shall have
to spend some time in de-escalation of conflict and damage control before moving to facilitating dialogue on
issues.
The last phase of escalation involves parties moving to a mind-frame where they wish to cause loss to each
other even at their own expense. Conflicts reach this level generally once various stages of court appeal have
passed or an arbitration award has been given but a party is forced to move to enforcement to court.
Thankfully, the staircase of escalation and de-escalation of disputes works both ways. With proper
intervention and use of correct communication tools and strategies, a conflict anywhere on the ladder can be
de-escalated. De-escalation by itself does not ensure that the parties will reach settlement on issues. However,
many times, de-escalation is adequate closure for parties and more satisfying than proving right and wrong. As
discussed in the previous chapter, de-escalation signals the cortisol to tell the brain that ‘All is well’ and the
party is not in crisis anymore. But for the parties to reach this phase, effective communication is a must.
Page 2 of 3
DE-ESCALATION OF CONFLICT
Communication is effective when it is in the form of a dialogue. Dialogue is a communication tool that allows
people to understand other viewpoints without pitting themselves against different perspectives. In dialogue,
there is no defending of opinions, and no counterpoints. Instead, you let someone talk and present their
viewpoint. You let them finish their idea without interrupting or asking questions. You listen to understand,
not to defend your own point of view. Your goal is to get in their head, and understand their perspective, not
to prove that they are wrong and you are right. When it is your turn, you talk and are allowed to finish your
thoughts. When you give your viewpoint, you do not give your viewpoint relative to theirs. Dialogue is not a
back and forth discussion, not a debate or rebuttal. It is a chance to frame a problem collectively by both
independently voicing their perspectives on an issue.
Many of us also have a distorted opinion about how effective communication happens. In order to become a
skillful, magnetic and effective communicator, we need to go back to the basics of language taught to us at
our schools. Unfortunately, the world of academia has rarely dealt with the key to become a successful
communicator. What we are made to focus or cram is all about enunciation, vocabulary, grammar, syntax and
the like. In other words, we are just taught to focus on ourselves. We do not mean to criticise the world of
academia as what we have learnt are extremely subtle elements of communication. But, without proper
guidance and teaching, the elements never allow you to create a product. What will be taught to you through
this chapter are some of the communication traits which if used regularly will help you achieve better results
in terms of growth, leadership, management, reduction of conflicts and disputes and a happy love and married
life.
The ability to develop a definite external awareness is what separates excellent communicators from those
who get entangled through their own interactions without effectively developing a flow and successfully
concluding a communication. This may be true for the guys who have excellent ideas or innovation but are
not able to convey the same. An excellent communicator does the same thing or speaks about the same thing
in a manner that appeals to our emotions and aspirations. An effective communicator realises that if his
message does not take a deep root with the individual or an audience at large, it is likely to be not understood
or dangerously misunderstood. Most of us spend quite of our time in some kind of inter personal or intra
personal relation. It is a well-accepted fact that a large number of organisational and family problems occur as
a result of poor communication or miscommunication.
Page 3 of 3
DE-ESCALATION OF CONFLICT
One of the finest things which great leaders or communicators have in common is that they possess a
heightened sense of situational and contextual awareness. Brilliant communicators are great listeners too and
astute in their observations. They are skilled at reading a person/group by sensing the moods, dynamics,
attitudes, values and concerns of those being communicated with. Not only do they read their environment
well but they possess their ability to adapt their messaging to the said environment without even missing a bit.
A message has nothing to do with a messenger or the parties on both sides. However, it is hundred percent
about meeting the needs and expectations of those who are in the process of communicating.
When we use the term ‘Communication’, we generally associate it with ‘talking’ or verbal communication.
However, most ‘How to’ guides will tell you that communication may be categorised as verbal and non-verbal
communication. According to studies, 70% to 80% of the messages we send and receive are done without
ever saying a word i.e. through non-verbal communication. Conflicts arise when two parties miscommunicate
their needs and interests to each other. Hence, to learn how to effectively communicate, it is important for us
to go back to basics and brush up on the types of communication we use in a dialogue.
End of Document
NON-VERBAL COMMUNICATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
NON-VERBAL COMMUNICATION
Non-Verbal Communication is any way that is used to express thoughts, feelings, or emotions without
speaking. Non-verbal communication skills are a vital part of our everyday lives. Sigmund Freud, the famous
psychoanalyst was persuaded of the importance of non-verbal behavior when he wroteHe that has eyes to see and ears to hear may convince himself that no mortal can keep a secret. If his lips are silent, he chatters with his
fingertips; betrayal oozes out of him at every pore.
A basic understanding of non-verbal communication is important because most non-verbal communication is
involuntary. Unless you are a trained spy, most of us express our true emotions through our body language.
We may hide our expressions in seconds but a diligent observer can grasp our true feelings through our nonverbal stance of communication.
The meanings behind non-verbal communications can vary in different parts of the world. A great example of
this difference is eye-contact. In America, eye-contact is associated with good manners, and if someone fails
to make eye-contact, people think that they are not paying attention to what they are saying. In some Asian
countries, eye-contact is considered abrasive and disrespectful.
7% - 38% - 55% Rule
UCLA professor Albert Mehrabian developed one of the most well-known rules when it comes to non-verbal
forms of communication which is used in expressing one’s emotions, feelings and attitudes (likes/dislikes). He
determined that messages received in such communication are actually mostly received in a non-verbal form.
55% of messages received and processed by your brain are based on your body language. This means that you
are actually judged more on your physical stance and facial movements while communicating. A high
percentage makes it imperative that you are aware of the way you look when communicating. For example,
you can say that you forgive someone while they are apologizing, but if you have your arms crossed over your
chest, this puts up a barrier between you and the other person. Their brain will not accept your forgiveness
because it doesn’t look like you are open to their apology.
38% of messages are processed based on your tone of voice. How you say something is more important than
what you are actually saying. While communicating with someone, if your voice is not expressive of the
emotion you are trying to convey, the meaning behind your words will be lost. Take the forgiveness scenario,
if your tone of voice expresses a lack of enthusiasm when accepting the apology, the meaning will getlost.
You must sound forgiving and understanding if that is what you want the other person to feel.
Page 2 of 7
NON-VERBAL COMMUNICATION
Only 7% of your received meaning will be based off the words you are saying. This low percentage means
that saying the words “I forgive you” means little when your tone and body language do not reflect
forgiveness.
Source: Non Verbal Communication, https://www.accuconference.com/resources/non-verbal-communication.html (last
accessed on 24 March 2015).
Although the study of body language is an upcoming field of study in itself, non-verbal communication can be
majorly categorised into facial expressions and gestures.
Facial Expressions
Facial expressions have been found to be universal. This means that an angry man in South Africa will give
you the same facial expression as an angry man in India. The seven universal facial expressions are anger, fear,
sadness, happiness, surprise and contempt. When any strong emotion hits us, at least for a microsecond, our
face expresses the true emotion we are feeling which may be any one of the seven universal expressions. Of
course, with the passage of time and the growing demand of our life, we have all learnt to ‘arrange our face’ to
suit the situation but that microsecond expression is involuntary. Faking the microsecond expression has been
proved to be as impossible as keeping your eyes wide open while sneezing. The stronger the emotion, the
stronger will be the expression.
Some examples of facial expressions are given below.
Emotion
Expression
Sadness
•
Angling upward of the inner corners of the eyebrows
•
Vertical wrinkle between the brows will appear, when the
eyebrows are drawn up and together
•
Lips stretched horizontally, pushed up
•
Skin between the tip of the chin and lower lip may be
wrinkled and pushed upward, by the action of chin muscle
•
Lower and upper eyelids become tightened
•
Eyebrows drawn together
•
Jaw is often thrust forward
•
Lips are pressed
•
Lower lip pushed up
•
The brows are raised and curved
•
Skin below the brow is stretched
•
Horizontal wrinkles across the forehead
•
Eyelids are opened, white of the eye showing above and
Anger
Surprise
Page 3 of 7
NON-VERBAL COMMUNICATION
Emotion
Expression
below
•
Jaw drops open and teeth are parted but there is no tension
or stretching of the mouth
•
Surprise, compared to other emotions, lasts only few
seconds. Surprise passes when we figure out what is
happening, then it transfers into fear, anger, disgust, relief,
etc., depending on what has surprised us.
•
Brows are raised and drawn together, usually in a flat line
•
Wrinkles in the forehead are in the center between the
brows, not across
•
Upper eyelid is raised, but the lower lid is tense and drawn
up
•
Upper eye has white showing, but not the lower white
•
Mouth is open and lips are slightly tensed or stretched and
drawn back
•
Corners of the lips are drawn back and up
•
Mouth may or may not be parted, teeth exposed
•
A wrinkle runs from outer nose to outer lip
•
Cheeks are raised
•
Lower lid may show wrinkles or be tense
•
Crow’s feet near the outside of the eyes
Fear
Happiness
Sometimes people may feel several emotions at the same time, or emotions can change one another in
seconds, in this case one could see the messages of two emotions at the same time, for example sadness in
combination with surprise, happiness or fear. When we see combination of sadness and fear, it can be
expressed by raised inner corners of eyebrows, as a sign of sadness and wide-open eyes, as a sign of surprise.
Similarly, we cannot lay down concrete ground rules for facial expressions and judge people only based on
their expression. For instance, we may raise our eyebrows in either surprise or fear. Lips may be pulled down
strongly when we are sad and also when we are expressing disbelief or negation. Lower lip pushed up may
indicate anger but many times, it also indicates determination. Hence, for reading facial expressions, we must
be unbiased and should not have any preconceived notions of what the person feels about certain
circumstances. And most importantly, a regular practice of reading facial expressions makes us better at
understanding them.
Gestures
Gestures are the movements made by some parts of body (arm and hand movements, head gestures).
Gestures perform many functions, such as replace speech, regulate the flow and rhythm of interaction,
maintain attention, add emphasis and clarity to speech, help characterise and make memorable the content of
Page 4 of 7
NON-VERBAL COMMUNICATION
speech etc. Waving, pointing and using the fingers to indicate numerical amounts are all very common and
easy to understand gestures. However, gestures generally have strong cultural significance. For example,
pointing your finger at someone while speaking is considered disrespectful in India. While the thumbs up is
considered to be a sign of approval in many parts of the world, the sign is considered to be obscene in Latin
America, West Africa, Iran, Iraq and Afghanistan.
Speech related gestures, also called illustrators, are directly tied to or accompany speech. The meanings and
functions of these gestures are revealed through the examination of the speech. People tend to illustrate more
than usual when they are furious, horrified, very agitated, distressed, or excitedly enthused. Overall, there are
four types of speech related gestures: speaker’s referent related gestures, speaker’s relationship to the referent
gestures, punctuation gestures, and interactive gestures.
Referent related gestures complete the meaning of the speech. Sometimes these are movements depicting
concrete referents, sometimes vague, abstract ideas are the referent for gestural depiction. For example,
pointing movements can help to indicate specific person, place or thing being discussed. Abstract referents
occur when we draw in the air the path of an idea or direction.
Punctuation gestures accent, emphasise and organise important segments, such as single word or a larger
utterance unit, of the discourse. When these gestures are used to emphasise the word or phrase, they usually
are accompanied by the primary voice stress. Punctuation gestures can also organise the stream of speech into
units. Punctuation gestures can be accomplished with body movements other than hands.
The main function of interactive gestures is to include the interaction partner in the dialogue. These are the
pointing gestures in the partner’s direction. There are four groups of interactive gestures: gestures that deliver
information, citing the partner, seeking response from the partner, turn gestures. Delivering gestures as a
group deliver information by the speaker to the addressee (general delivery, shared information, digression
gestures). Citing gesture as a group refers to the previous contribution by the addressee (general citing,
acknowledgment). Seeking gestures as a group aim to elicit a specific response from the addressee (seeking
help, seeking agreement, seeking following) and turn gestures refer to the issues around the speaking turn
(giving turn, taking turn, turn open).
To sum up, it is necessary to mention, that non-verbal behavior compliments, regulates, substitutes and
contradicts verbal messages. It is necessary to mention, that non-verbal behavior cannot be interpreted
separately from verbal behavior. Non-verbal behavior can accompany speech, repeat what was said verbally
and conflict, compliment, substitute, accent or regulate with verbal behavior. In the case of complimenting,
accenting and regulating verbal speech, non-verbal signals express certain feelings, that speaker has during the
speech. When non-verbal behavior is in conflict with verbal speech, then it expresses the true feelings, that
speaker has and information, that speaker tries to conceal by verbal speech. Thus, in order to understand
better and to build successful relationship and communication during the negotiations, the ability to
understand non-verbal messages may have great impact in this process.
Some non-verbal signals are more spontaneous and harder to fake than others and some people are more
proficient than others at non-verbal deception. With two conflicting cues reliance can be placed on the cues
we consider harder to fake. Credibility of the information presented is also an important factor in determining
which cues to believe most in inconsistent messages. If the information being communicated in one channel
lacks credibility, we are likely to discount it and look to another channel for the ‘real’ message. Sometimes we
are faced with the difficult dilemma of perceiving the meaning communicated by hard-to-fake cues that do
not seem credible. There is no empirical data yet on the conditions that affect which signals people look to for
valid information. As a general rule, people tend to rely on those signals they perceive harder to fake, but this
will most likely vary with the situation; so, the ultimate impact of verbal, visual and vocal signals is best
determined by a close examination of the people involved and the context of communication. Non-verbal
Page 5 of 7
NON-VERBAL COMMUNICATION
behavior can modify or elaborate on verbal messages. When the verbal and non-verbal messages are
complementary, rather than conflicting. Our messages are usually decoded more accurately. Some evidence
suggests that complementary non-verbal signals also may be helpful in remembering the verbal messages.
The Twig that broke the King
An interesting example of non-verbal communication is found in the Indian epic Mahabharat.
One of the sub plots of the Epic is the story of King Brihadratha of Magadha who was married to the twin
daughters of the King of Kashi. Brihadratha loved both his wives equally and had all the material joys of the
world, but no son. This left him in a depressed state.
The sage Chandakaushika visited his kingdom and Brihadratha served him with respect. Being pleased with
his service, the sage granted Brihadratha a boon. Brihadratha asked the sage for a son and the sage gave him a
mango, which Brihadratha was to give to one of his wives. Now Brihadratha loved both his wives equally so
he cut the mango in two equal halves and fed both of them.
Nine months later, both his wives gave birth to half a child each. Seeing this, the queen’s attendants were
horrified and decided that they must dispose off the two halves. They dumped the two half babies outside the
kingdom. Outside the kingdom of Magadha, there lived a female demon named Jara. Sensing human flesh,
she found the two halves of the child. Hoping to carry them home to eat them, she placed both the halves
side by side in a basket and lo behold the halves miraculously joined up, making one complete human child.
Jara realised that this must be the son of the King of Magadha, and wanting a reward, took the child to the
palace. The King was overjoyed and named the child Jarasandha in honor of Jara, the female demon who had
saved him.
Jarasandha grew up and became a very powerful king. He defeated many other kings and made them promise
their allegiance to him making him supreme emperor. He gave both his daughters in marriage to King Kansa
of Mathura.
Now Krishna killed Kansa, making Jarasandha an enemy. Jarasandha attacked Mathura seventeen times and
Krishna decimated his army, sparing Jarasandha alone.
Krishna had five cousins, the Pandavas, who had just acquired a kingdom- Indraprastha. The eldest Pandava,
Yudishtra wanted to perform the Rajasuya Yagya. In order to perform the Rajasuya Yagya, a king had to be
declared emperor and all the surrounding kingdoms had to recognise the emperor as their overlord. In order
for this to happen, Yudishtra would have to defeat Jarasandha and obtain the title of emperor. Yudishtra, not
knowing how to go about this, askedKrishna for help. Krishna said that he, Arjuna (the third Pandava) and
Bheema (the second Pandava) would dress up like bhramins and go to Magadha and challenge Jarasandha to a
wrestling match.
Upon reaching Magadha, Krishna, Arjuna and Bheema challenged Jarasandha to a wrestling match.
Jarasandha seeing their physiques realised that these were not bhramins and asked them who they were.
Krishna revealed their identities and told Jarasandha that they had come to challenge him and that Jarasandha
must pick an opponent. Jarasandha said that he would not fight Krishna as he was a cowherd and he did not
match his dignity and social standing. He then refused to fight Arjuna saying that Arjuna was too young, but
he agreed to fight Bheema as Bheema seemed mighty and a worthy opponent.
Bheema and Jarasandha fought for days, both equally matched and neither succumbed to the other’s blows.
Bheema realising that Jarasandha was an equal match looked to Krishna for help. Now Krishna who knew the
Page 6 of 7
NON-VERBAL COMMUNICATION
story of Jarasandha’s birth, picked up a twig from the floor, broke it in two halves and threw the two halves
far away from each other in opposite directions.
Bheema now knew what he must do. He threw Jarasandha to the ground, held his legs and split his body in
two. He then threw the two halves of Jarasandha far away from each other so that they might not join.
Bheema had defeated Jarasandha and Krishna installed Jarasandha’s son as the king of Magadha. In return,
Jarasandha’s son agreed to be a vassal to the Pandavas.
Source: Krishna and Jarasandha, http://www.4to40.com/story/index.asp?p=Krishna_and_Jarasandha (last accessed on
24 March 2015).
Non-Verbal Leakage
From time to time, non-verbal behavior can contradict verbal speech. Body language experts often call this
‘Leakage’. Very often people have not only to conceal their feelings, but also to falsify it. Moreover, some
emotions are harder to conceal than others. For example, terror is harder to conceal than worry.
Consequently, the stronger the feeling, the harder it is to conceal it, this implies, the stronger is emotion, the
easier to see it.
Any emotion can be falsified to help conceal any other emotion. The smile is the mask most frequently
employed. It serves as the opposite of all the negative emotions – fear, anger, distress, disgust and so on.
Another reason for the popularity of the smile as a mask is that it is the easiest of the facial expressions of
emotions to make voluntarily.
As for facial expression, when the person has feelings that he tries to conceal for several reason, it can be
visible ‘in a change in the expression of the face, a movement of the body, an inflection to the voice, a
swallowing in the throat, a very deep or shallow breath, long pauses between words, a slip of the tongue, a
micro facial expression, a gestural slip’. And these non-verbal signals are mostly impossible to hide, as
thoughts and feelings are involved the need to think about each word before it is spoken – weighing
possibilities, searching for a word or idea – may be obvious in pauses during speech or more subtly in a
tightening of the lower eyelid or eyebrow and certain changes in gesture.
Trying to conceal the revealing changes in one’s body, face and voice is difficult. Even if we are able to
conceal our emotions successfully without leaking our thoughts and sentiments, sometimes the struggle to
hide the leakage itself may be noticed by an onlooker. Just like concealing what you feel is tough, putting up
an appearance of false emotions you are not feeling is also not easy even though in that case you are not
required to conceal anything. Expressing emotions, you do not feel requires more than just saying verbally
that you are upset or that you are angry. If the person wants to really deceive someone he must also look and
sound like a really angry and upset person. Had it been easy to falsify emotions, every struggling actor in
Bollywood would have been a superstar.
Our body has its own limitations. Certain movements of the face cannot be faked voluntarily. While trying to
look angry itself is tough, trying to look angry when you are actually feeling afraid has been found to be the
toughest. While our impulse of being afraid pulls our facial expressions in one direction, our deliberate
attempt to look, feel and sound angry pulls our face the other way. For example, when afraid our brows pull
upward involuntarily but if we want to fake being angry at the same time, we must pull our brows down.
There are a number of other reasons why people pay such attention to faces. The face is the primary site for
the display of emotions. Together with the voice, it may tell the listener how the speaker feels about what is
being said—but not always accurately, since faces can lie about feelings. If there is difficulty in hearing,
watching the speaker’s lips can help the listener figure out the words being spoken. Attending to the face can
also provide an important signal necessary for conversations to proceed. So, attention must be paid to the
Page 7 of 7
NON-VERBAL COMMUNICATION
voice and body. The voice, like the face, is tied to the areas of the brain involved in emotion. It is very
difficult to conceal some of the changes in voice that occur when emotion is aroused.
The body is also a good source of leakage and deception clues. Unlike the face or voice, most body
movements are not directly tied to the areas of the brain involved in emotion. Monitoring of body
movements need not be difficult. A person can feel and often see what his body is doing. Concealment of
body movements could be much easier than concealing facial expressions or voice changes in emotion. But
most people don’t bother. The voice refers to everything involved in speech other than the words themselves.
The most common vocal deception clues are pauses. The pauses may be too long or too frequent. Hesitating
at the start of a speaking turn, particularly if the hesitation occurs when someone is responding to a question,
may arouse suspicion. Hearing how badly she sounds may make a liar more afraid of being caught, which only
increases her pauses and speech errors. The best-documented vocal sign of emotion is pitch. For about 70%
of the people who have been studied, pitch becomes higher when the subject is upset. Probably this is most
true when upset is a feeling of anger or fear. Changes in the voice produced by emotion are not easy to
conceal. If the lie is principally about emotions felt at the very moment of the lie, then there is a good chance
for leakage. If the aim of the lie was to conceal fear or anger, the voice should sound higher and louder, and
the rate of talk may be faster.
Anyway, individuals differ in their emotional expressiveness. Many times, emotions are expressed overtly and
deliberately. The shrug and the finger are two examples of actions that are called emblems, to distinguish
them from all of the other gestures that people show. Emblems are a class of non-verbal acts that can be
accurately translated into words. Emblems are almost always performed deliberately.
The person who makes an emblem knows what she is doing. She has chosen to state a message. But there are
exceptions. Just as there are slips of the tongue, there are slips in body movement - emblems that leak
information the person is trying to conceal. There are two ways to tell that an emblem is a slip, revealing
concealed information, and not a deliberate message. One is when only a fragment of the emblem is
performed, not the entire action. The shrug can be performed by raising both shoulders, or by turning the
palms up, or by a facial movement that involves raising the brows and drooping the upper eyelid and making
a horseshoe-shaped mouth, or by combining all of these actions and, sometimes, throwing in a sideways head
tilt. When an emblem is leakage, only one element will be shown, and even that one expression may not be
complete. Only one shoulder may be raised, and not very high; or only the lower lip may be pushed up; or the
palms may be turned up only slightly.
End of Document
VERBAL COMMUNICATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
VERBAL COMMUNICATION
Just because statistics indicate that we communicate 80% of our messages through non-verbal
communication, does not make verbal communication any less important. In fact, verbal communication
includes not just speaking effectively but more importantly, listening attentively. People generally say that
“Mr. X is a born conversationalist.” But the truth is that verbal and non-verbal communication skills develop
and enhance only with practice and paying attention to what you say and how you say it. Verbal
communication which should come so naturally to humans is becoming more and more difficult for most
people with increasing use of technology to express one’s emotions. People find it easier to express
themselves to the world on social networking websites in comparison to talking heart to heart with loved
ones. Ineffective or absent verbal communication is one of the main sources of a conflict.
Yagyaseni
In the Indian epic of Mahabharat, Draupadi was the daughter of King Drupada. She was also known as
‘Yagyaseni’ because she was born to King Drupada from the flames of the sacred ritual fire or a ‘Yagya’.
King Drupada held a ‘Swayamwar’ to select the most eligible archer who could marry Draupadi. The
Swayamwar was a competition to judge the strength, acumen and intelligence of a warrior who would be fit to
marry Draupadi. Each participant was required to string a bow bestowed on King Drupada by Lord Shiva, the
Indian God and shoot a fish rotating on a wheel suspended from the roof of the hall while looking at its
reflection in a vat of oil.
The five Pandava brothers attended the competition in disguise. Many warriors from around India failed in
the task. Finally, Arjuna the famous Pandava archer stringed the bow, hit the mark and won the beautiful
Draupadi’s hand in marriage.
The exuberant Arjuna returned home to his mother and exclaimed, “Look what I won at the tournament,
Mother”. Without turning around, his mother Kunti replied, “Whatever it is, share it equally with your
brothers.” The Pandava brothers were shocked. Draupadi was heartbroken.
In a time when the spoken word of a parent was a mandatory obligation, a miscommunication made
Draupadi the common wife of the five Pandava brothers instead of the consort of Arjuna, the man she
continued to love till the end of her life.
So how does one go about being a good communicator?
Be Prepared
Page 2 of 7
VERBAL COMMUNICATION
Baden Powell’s motto for the scouts ‘Be Prepared’ is the most useful as a communication skill than you ever
imagined, if you are going to a business meeting, research the company and the person you are meeting. This
has become easier with the blitzkrieg of internet age. Try and understand what the person will expect from
you and prepare in advance.
When having important conversations, it is always important to have knowledge of what you are talking
about. Read up on your subject even if you think you know it all. Various studies have shown that the human
mind retains only a fraction of what we read or experience. So, every time you read up on your subject, it is
very likely that you will discover something you had missed numerous other times.
The Boar with Foresight
A wild boar was rubbing his tusks against a tree.
A fox passing by asked him what he was doing.
“My tusks are my weapons,” said the boar. “I’m sharpening them.”
“Why waste time sharpening and preparing your weapons when there’s no danger in sight?” said the fox.
“You’re being foolish.”
Just then a hunter appeared on the scene.
Frightened by the boar’s sharpened tusks, he turned on the fox instead and shot him dead.
Develop a technical command over your subject matter. If you do not have expertise in the subject matter,
few people will give you the time of day. Most successful people have little interest in listening to those
individuals who cannot add value to a situation or topic, but force themselves into a conversation just to hear
them speak. Good communicators address both the ‘what’ and ‘how’ aspects of a situation so they do not fall
prey to becoming the smooth talker who leaves people with the impression of form over substance.
Crystal Clear
The world is running. Nobody has time for anybody or anything. That is perhaps the first reason why being
articulate in what you say is important. The second and more important reason to be extremely clear in what
you say is to save yourself the trouble. When we speak in circles, we confuse people. Our ambiguity can create
not just confusion but misunderstandings. If we acknowledge that we were not clear, we may spend some
time explaining ourselves. If our explaining is ambiguous, we go back to misunderstanding and confusion
again. This vicious cycle of confusion and misunderstanding are like the weeds of a garden which stunt the
growth of a healthy garden and most definitely will lead to disputes, today, tomorrow or sometime in the long,
unavoidable future ahead.
“The words used should be carefully selected so that no other words can effectively replace them.”
- Kural 645 from Thirukural by Thiruvalluvar
(Thirukural is a famous code written by ancient Tamil poet and philosopher Thiruvalluvar on the ideals of a
good life)
Without understanding the value of brevity and clarity it is unlikely you will ever be afforded the opportunity
to get to the granular level as people will tune you out long before you ever get there. Your goal is to weed out
Page 3 of 7
VERBAL COMMUNICATION
the superfluous and to make your words count. It is funny how much effort people can take to express
themselves in 140 characters on Twitter, yet fail to make the same effort in real life conversations. Learn to
speak and explain yourself in simple sentences instead of going on and on in paragraphs.
Listen More, Speak Less
Once you start talking in sentences instead of paragraphs, you will realise that you have more time left to
listen to the person you are speaking to. Communication is a two-way street. Monologues on only how you
feel and what you want are not acceptable. Communication is like breathing.
We breathe. We breathe every day, every moment of our living lives. We breathe in air from the environment,
absorb the oxygen and breathe out carbon dioxide. It is one of the key processes of the human body which
keeps us alive. Why? Because we need oxygen to survive. For exactly thirty seconds, try only breathing in
without breathing out. Since we only need oxygen, taking it in should surely be enough. If you really try it, you
will realise that it is not.
We communicate every day, just like we breathe every day. Yet, we give more importance to speaking out our
mind than attentively listening to what the other party is saying. A conversation will not be effective unless
you listen to the other party, actually process and assimilate what they are saying and then respond.
Even the most violent critic, will frequently soften and be subdued in the presence of a patient, sympathetic
listener - a listener who will be silent while the irate fault-finder dilates like a snake and spews the poison out
of his system.
When you reach that point in your life where the light bulb goes off, and you begin to understand that
knowledge is not gained by flapping your lips, but by removing your ear wax, you have taken the first step to
becoming a skilled communicator.
Be Flexible
A meaningful conversation cannot be based on a foundation of flawed perceptions, preconceived notions and
a concrete idea of what you want out of a situation which is not amenable to even an iota of change.
Compare your thought process to a strong metal like iron or titanium. These metals are known for their
tensile strength. Yet, of what use would these metals be if they did not melt at a certain temperature and could
not be molded to shape? They would be chunks of hard metal, the waste of the soil, which ought to be sifted
from the fertile grounds, not nuggets of resource which corrupts statesmen and has the capacity to induce the
entire world to war over its ownership.
To communicate effectively, it is very important to be flexible and live in the moment. The rigidity of a closed
mind is the single greatest limiting factor of new opportunities. A good negotiator takes his game to a whole
new level the minute he is willingly seeking out those who hold dissenting opinions and opposing positions
with the goal not of convincing them to change their minds, but with the goal of understanding what is on
their mind. The number of people who are truly fearful of opposing views is amazing considering they should
be genuinely curious and interested instead. Communicate with those who confront you, challenge you,
stretch you, and develop you to expand your horizons. Remember that it is not the opinion that matters, but
rather the willingness to discuss it with an open mind and learn.
The Socrates Way
Communication has been the foundation of the development of philosophy and rational thinking all over the
world. Philosophy developed because of communities like that in ancient Athens where Socrates roamed the
streets engaging in dialogue.
Page 4 of 7
VERBAL COMMUNICATION
Perhaps the most influential innovation that Socrates left to Western culture is the technique of question and
definition (The Socratic method). He habitually started his conversations with others by asking them for an
account of some concept like Justice, Love, Truth and Courage.
The remarkable part is that almost all of the people to whom he put these questions claimed at first to know
the answers. Through a process of questioning and testing hypotheses he inevitably led the other person to
the inescapable conclusion that their own thinking was riddled with uncertainties and contradictions, and that
they did not really know what they thought they knew at all.
Socrates never wrote any philosophical works. He conducted philosophy by holding conversations with just
about anyone who would talk with him. These conversations, as portrayed in Plato’s Dialogues (Plato was his
student) usually consist of Socrates asking questions that lead his conversant to further and further question
their own beliefs. The self-doubt many felt after conversing with Socrates was uncomfortable enough that the
Athenian assembly eventually voted to put him to death. Socrates had plenty of opportunities to escape this
punishment, but chose to hold his ground on principle. He regarded cowardice and hypocrisy as fates worse
than death.
Avoid Hypocrisy, Establish Trust
Consider an experiment. Take some very fertile soil in a pot. Now place it in a corner and don’t do anything.
Every single day, go to the pot and say, “Grow me a rose” as many times as you want to. Keep track of when
a rose plant grows from the pot and when the flower blooms.
Just like a plant will not grow in the most fertile soil unless you plant a seed, water it, add manure and provide
adequate sunlight and shade, trust does not occur in isolation. We cannot expect people to trust us just
because we think we are trustworthy. Trust must be nurtured and cultivated in the minds and hearts of people
around us through what we do and what we say. Unless there is perfect harmony between what we do and
what we say, expecting trust is futile.
In the same way, once you breach someone’s trust, you cannot expect the cracks to heal automatically. Just
like an infected plant, your relationship will require special attention. Just like you would fight the infection
with pesticides and insecticides, you will have to fight the doubt and the feeling you are a hypocrite with
apology, trustworthy behaviour and change in your attitude and approach towards similar situations.
In most cases, people just will not open up to those they do not trust. When people have a sense that a person
is worthy of their trust, they will invest time and take risks in ways they never would if the person had a
reputation built upon poor character or lack of integrity. While you can attempt to demand trust, it rarely
works. Trust is best created by earning it with right acting, thinking and decision making. Always keep in mind
that people will forgive many things where trust exists, but will rarely forgive anything where trust is absent.
The Boy Who Cried Wolf
There once was a shepherd boy who was bored as he sat on the hillside watching the village sheep. To amuse
himself he took a great breath and sang out, “Wolf! Wolf! The Wolf is chasing the sheep!”The villagers came
running up the hill to help the boy drive the wolf away. But when they arrived at the top of the hill, they
found no wolf. The boy laughed at the sight of their angry faces.
“Don’t cry ‘wolf’, shepherd boy,” said the villagers, “when there’s no wolf!” They went grumbling back down
the hill.
Page 5 of 7
VERBAL COMMUNICATION
Later, the boy sang out again, “Wolf! Wolf! The wolf is chasing the sheep!” To his naughty delight, he
watched the villagers run up the hill to help him drive the wolf away.
When the villagers saw no wolf they sternly said, “Save your frightened song for when there is really
something wrong! Don’t cry ‘wolf’ when there is NO wolf!”
But the boy just grinned and watched them go grumbling down the hill once more.
Later, he saw a REAL wolf prowling about his flock. Alarmed, he leaped to his feet and sang out as loudly as
he could, “Wolf! Wolf!”
But the villagers thought he was trying to fool them again, and so they didn’t come.
At sunset, everyone wondered why the shepherd boy hadn’t returned to the village with their sheep. They
went up the hill to find the boy. They found him weeping.
“There really was a wolf here! The flock has scattered! I cried out, ‘Wolf!’ Why didn’t you come?”
An old man tried to comfort the boy as they walked back to the village.
“We’ll help you look for the lost sheep in the morning,” he said, putting his arm around the youth, “Nobody
believes a liar...even when he is telling the truth!”
Source: The Boy who cried Wolf, http://www.storyarts.org/library/aesops/stories/boy.html (last accessed in April
2021).
Empathize, not Sympathize
Empathy and sympathy are some of the most used and misused words in the English language. So much so,
that we should probably begin with the dictionary meaning of the two words.
Sympathy (Noun)
/’sImp?θi/
Feelings of pity and sorrow for someone else’s misfortune
Empathy (Noun)
/’?Imp?θi/
The ability to understand and share the feelings of another.
As you can see, replacing two letters (Sy) with just one letter (E) makes a world of a difference to the way you
perceive and hold dialogues. It is easy to pity someone. Pity is a superficial feeling. We can go ‘Oh’ and ‘Ah’
over stories of how elephants are being killed all over the world for their tusks. We can wear T-Shirts with
captions and have heated debates on how the Government is not doing enough to save elephants over a cup
of coffee in a café. Yet it is very, very difficult and many times impossible to actually understand what a
person is feeling or going through. It is difficult to understand the anxiety of being followed by someone,
waiting for the right opportunity to attack. It is difficult to understand the terror of seeing death in the face
when a hunter points a gun over you. It is difficult to feel the piercing pain of bullets tearing through your
Page 6 of 7
VERBAL COMMUNICATION
tendons, your organs, your body. It is difficult to understand the penultimate peace and nothingness of death
before your dead body is defaced - your tusks are mercilessly pulled out from your dead body.
It is famously said that only the wearer knows where the shoe pinches. Sympathy can make us judgmental
sometimes. Yet, empathy can soften us and inspire us to come out with constructive solutions to a genuine
problem. When candor is communicated with empathy and care and not the prideful arrogance of an over
inflated ego good things begin to happen. Empathetic communicators display a level of authenticity and
transparency that is not present with those who choose to communicate behind the carefully crafted facade
propped up by a very fragile ego. Understanding this communication principle is what helps turn anger into
respect and doubt into trust.
Consensus ad idem
In communication, one mind affects the other not only through written and oral speech but also through
music, art, theatre, dance performances like Odisi, Bharatnatyam or Ballet. However, these forms of
communication have a ‘performer’ and an ‘audience’. The audience is generally mesmerized and completely
influenced by what the performer conveys. At the same time, the audience can only applaud and express their
appreciation at the most. The audience has no room on the stage and no say in the performance.
However, we focus so much on what we want and being the ‘performer’ that we forget that communication is
all about reciprocation. Communication in day to day life is a meeting of minds, famously known in the legal
jargon as ‘consensus ad idem’. It is an ‘exchange’ of thoughts, ideas, feelings and facts. For communication to be
effective, the communicating parties must be both the performer and the audience interchangeably. When
one party performs, you must be the mesmerised audience. When you perform, your performance must be so
effective and high impact that the other party has no option but to be influenced.
The best communicators are not only skilled at learning and gathering information while communicating, they
are also adept at transferring ideas, aligning expectations, inspiring action, and spreading their vision. The key
is to approach each interaction with a servant’s heart. When you truly focus on contributing more than
receiving you will have accomplished the goal. Even though this may seem counterintuitive, by intensely
focusing on the other party’s wants, needs and desires, you can learn far more than you ever would by
focusing on your agenda.
In real dialogue, we must focus not only on receipt of information and ideas but also on synchronising our
information and ideas with the ideas and thoughts of the other party. This process of synchronisation of
thoughts is an endangered species in this era of technology. Leo Lowenthal, the German sociologist in this
context explains that true communication entails a communion, a sharing of inner experience.
Communication has been dehumanised since it has been taken over by the media of modern culture by the
newspapers first and then by the radio and television. If Lowenthal were here, he would have probably
updated his statement to include the internet which has become the biggest source of information feed in the
present day. Of course, to blame media entirely for distorting dialogue may be taking things too far. It will be
a refreshing take if we take responsibility for things happening around us and do something at our own level
for a change.
Communication is a two-way street. If you expect the other party to be receptive about what you wish to
convey, you must first begin by being receptive of what the other party wishes to convey and how that can be
achieved. Once you make the other party feel that he is being ‘heard’ and that the other party’s interests will
be factored into the final solution, you will have a much better chance of being heard.
Read between the Lines
There are two kinds of tourists in this world. First, the ones who want to see everything in the world. They
walk around with an agenda and a list of what all they want to ‘see’. They travel as per well planned schedule,
Page 7 of 7
VERBAL COMMUNICATION
never stay in one place more than they had scheduled even if they like the place in the fear that they will miss
something better in the schedule. Then there is another kind of tourist. They travel without checklists and
tourist guidebooks. They may plan to roam around a country and end up staying in just one village
throughout the trip.
The first category can be an encyclopedic guide of the place they visit. They can bombard you with facts and
figures. The second category may not know all the facts, yet, they many times come back with the rhythm of a
place. They will tell you about the conversations they had with the locals, the stories they shared with fellow
travelers, about the fragrance of the air, the foliage in open spaces and the babble of the foaming river.
Conversations, too, can be done two ways. Firstly, where you work with a strict agenda, focus only on
gathering information and refuse to budge from your line of thinking. Secondly, where you focus on the
needs and interests of each other. We live in an electronic age where our attention is always divided between
what is actually happening around us and the beeps and sounds of our various electronic gadgets. We never
just have a conversation. We watch television while having a conversation, we check our social network
updates while having conversations, we check our e-mail while having conversations. When our attention is
so divided, we can barely be blamed for taking everything a person says at face value.
If you are planning to have an important, meaningful conversation, you need to devote your entire focus and
attention to speaking and equally to listening. When we do this, we realise that the speaker will transmit not
just information but also various underlying currents of expectations, apprehensions and a plethora of other
feelings which we would have missed if our attention were diverted.
Another misconception is that the rule of reading between the lines and the exploration of underlying
currents in a conversation is not necessary in commercial communication and business meetings. In addition
to gathering of information, it is also necessary to understand the vision, the short term and long-term goals
and the principles adhered to by the other party in business. To be on the same page, it is also important for
you to share your expectations, requirements, goals and ideas with the other party. If you wish to build a
skyscraper, you need a strong foundation. Otherwise, after putting in enormous effort and investment of vast
resources, your skyscraper will collapse before giving you adequate returns.
On Reason and Passion
Your reason and your passion are the rudder and the sails of your seafaring soul.
If either your sails or our rudder be broken, you can but toss and drift, or else be held at a standstill in midseas.
For reason, ruling alone, is a force confining; and passion, unattended, is a flame that burns to its own
destruction.Therefore, let your soul exalt your reason to the height of passion; that it may sing;
And let it direct your passion with reason that your passion may live through its own daily resurrection, and
like the phoenix rise above its own ashes.
— The Prophet by Khalil Gibran
End of Document
REPHRASING
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
REPHRASING
Rephrasing is simply rewording a statement made by someone else in your own words. The words that you
use are yours but they will convey the same meaning and spirit of the original statement.
Rephrasing (or paraphrasing) is a positive feedback we give to the speaker by retelling what we have
understood what the speaker wishes to convey. Rephrasing (or paraphrasing) lets a person know that he or
she has been heard and, more importantly, correctly understood by the listener.
Rephrasing involves saying the same thing in a more positive and less hurtful way. It is used to prevent
misunderstandings. Rephrasing is not simply a restatement. While rephrasing, describe both the content and
feelings of the communication in a fair and objective manner. Do not judge, evaluate, or try to give the
speaker solutions.
Rephrasing clarifies the message for both you and the sender. It allows you to check your understanding of
the message and shows the sender, that you listened accurately (i.e., the content and intent was correctly
understood). If you listened inaccurately, the sender has an opportunity to correct the communication error.
Rephrasing helps in the following ways:
•
For the speaker, rephrasing reinforces your expectation that others are actually listening to what you
have to say, while providing you the opportunity to clarify your intent;
•
For the listener, rephrasing validates what you have heard by checking your understanding, either
reinforcing it or modifying it based on the speaker’s agreement or disagreement and clarification;
•
Rephrasing defuses ‘loaded’ terms or connotations by demonstrating an understanding and validation
of the (often negative) emotions behind the statement, yet casting the statement in a much more
positive, less emotional fashion;
•
It clarifies confusing content;
•
It highlights issues by stating them more concisely; and
•
It checks out the accuracy of your perceptions.
However, rephrasing is not the same as repetition. Rephrasing requires restating another person’s statement in
your own words to gain understanding. Use your own words to tell what you think the speaker meant, not
what they said. This enables the listener to clarify the speaker’s meaning and it conveys interest in what the
speaker is saying and helps create a supportive environment for the conversation.
Page 2 of 4
REPHRASING
Rephrase each statement using your own words to express the same idea. Always remember that the purpose
of rephrasing is to demonstrate a comprehension of the facts and also a sensitivity towards the spirit and
intent of the message, showing empathy with the speaker.
When paraphrasing:
•
Put the focus of the paraphrase on what the other person implied, not on what you wanted him/her
to imply, e.g., don’t say, “I believe what you meant to say was …”. Instead, say “If I’m hearing you
right, you conveyed that …?”
•
Phrase the paraphrase as a question, “So you’re saying that …?”, so that the other person has the
responsibility and opportunity to refine his/her original comments in response to your question.
•
Put the focus of the paraphrase on the other person, e.g., if the person said, “I don’t get enough
resources to do what I want,” then don’t paraphrase, “We probably all don’t get what we want,
right?”
•
Put the ownership of the paraphrase on yourself, e.g., “If I’m hearing you right …?” or “If I
understand you correctly …?”
•
Put the ownership of the other person’s words on him/her, e.g., say “If I understand you right, you’re
saying that …?” or “… you believe that…?” or “… you feel that …?”
•
Don’t judge or evaluate the other person’s comments, e.g., don’t say, “I wonder if you really believe
that?” or “Don’t you feel out-on-a-limb making that comment?”
•
You can use a paraphrase to validate your impression of the other’s comments, e.g., you could say, “So
you were frustrated when …?”
•
The paraphrase should be shorter than the original comments made by the other person.
•
If the other person responds to your paraphrase that you still don’t understand him/her, then give the
other person 1-2 chances to restate his position. Then you might cease the paraphrasing; otherwise,
you might embarrass or provoke the other person.
Turn that Negative into a Positive
Although this may sound impossible, it is positive to express a negative statement positively. Expressing our
negative thoughts with a more positive approach may help us actually drive the point home better without
increasing confusion.
For example, instead of saying “We cannot do it that the way you are saying” we can rephrase our sentence
and instead say “doing it like that may be a problem, but I suggest we can do it like this instead.”Also, all of us
very frequently use different versions of the sentence “It is impossible.” Instead of evaluating the
impossibility of a situation “Let us look at the alternatives available with us.”
In addition to rephrasing, we can also use questions to bring forward potential problems. When problems are
put forward as questions, the other person’s mind automatically starts looking for an answer.
For example, instead of saying “We cannot do that. It will not get approval due to company policy” we can
question “That sounds like a good idea. How do you think we can align it with the company policy?”
Be Courteous
One of the most known but least implemented rules of communication is that delicate issues must be always
approached with courteous and indirect wording. We must try to use phrases such as ‘With all due respect’
Page 3 of 4
REPHRASING
and ‘If I could just suggest’ to soften the tone of the discussion. Whenever possible, we must rephrase a
negative statement and avoid laying blame by using the word ‘you’. For example, “You’re not competent to
take up this assignment,” could be rephrased as “I’m concerned that this project may require a different skill
set and expertise,” Do not be afraid to use elaborate wordings to soften criticism without causing offense.
The Big ‘NO’
As our lives become more stressful and demanding, we are slowly developing the habit of responding with a
‘No’ to everything that is asked of us. We are doing this as a response to stimuli, as quickly as withdrawing our
hand from a hot object without a second thought. We just do not want to get involved. Before responding to
anything which is asked of us, it is important for us to consider whether accepting the request is feasible, will
it put so much unnecessary burden on us that we will not be able to take it? Moreover, it is possible and more
positive to refuse or deny without beginning the sentence with a ‘No’. Make a conscious effort to rephrase the
sentence and make it positive.
Example 1: “No, I cannot go out because your relatives are sitting around our house.”
Rephrase: “Yes, I would love to go out but let us see off your relatives first.”
Example 2: “No, I cannot finish this assignment because you have already piled up so much work on my
head…”
Rephrase: “Yes, this work can be done if I can adjust it within the deadline along with the other deliverables
pending with me. Let me give you a recap of my deliverables and please let us discuss if it will be feasible to
delegate this work to me.”
Shubh Arambha (An Auspicious Beginning)
Many cultures including Indian undertake various rituals for auspicious beginnings. For example, one of the
most common rituals in India is the breaking of a coconut before an activity of any magnitude is undertaken.
Coconuts are broken when foundation stones of buildings are laid and are broken again when the building is
being put to use. Coconuts are broken before using a new car and coconuts are broken at the muharats or the
launches of new movies.
Yet, we have a tendency to begin difficult conversations with negative statements. Some famous examples are:
“You just don’t understand!”
“Who do you think you are?”
“You don’t know what I am capable of!”
“You are a liar and a fraud…”
“I cannot deal with you anymore because…”
“Why cannot you just shut up and listen to me?”
Just like all Indian auspicious beginnings, every important yet difficult conversation should begin with a
positive statement. Some tips to break the coconut in a difficult conversation are as follows:
•
Do not approach the person with your body language showing you are going to a battle;
•
List the positive attributes and the contributions of the listener;
Page 4 of 4
REPHRASING
•
Remind the person of some happy instance of the past;
•
Give examples of the past achievements of the listener;
•
State your position as logically and without getting overpowered by underlying emotions;
•
Have all the relevant facts at your fingertips;
•
Do not have any preconceived perception of what the other person thinks;
•
Approach the conversation with a problem-solving attitude.
Food for Thought
•
Overemphasising negative messages may foster a sense of hopelessness
•
Placing blame may trigger a defensive response and create barrier
•
Overdramatizing emotions may make the listener feel that the feelings you are expressing are
irrational
•
Expressing extreme anger may make the other person defensive
•
Avoid using embarrassing or humiliating statements
•
Present statements as objectively as possible without losing the meaning and intent
•
Attempt to empathise with both sides when choosing words that rephrase
End of Document
REFRAMING
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
REFRAMING
Reframing is a translation or redefining. In reframing, the general idea of the message is communicated by
changing the language in such a way that the spirit or feeling is altered.
Reframing is the scientific art of using our actions and words to change a person’s perception of a particular
scenario with an intention of propelling a change in the behaviour of that person. It is an art because
reframing of a statement should be done without manipulating the facts of the situation. Reframing is a
science because like every scientific experiment reframing should be done in the right place at the right time
and in just the right situation. Otherwise, reframing will not give you the desired result. Reframing helps in
modifying the perception, point of view, approach and mental constructs about a situation. When reframing is
skillfully done, it brings about a change in the other person’s mindset without appearing to force a value
choice on the person.
The purpose of reframing is to make a comment sound more tactful and sympathetic and less critical often by
de-emphasising negative emotional content and emphasising positive emotional content. Reframing is also a
way to help a person gain objectivity and discover new ways of perceiving a situation. It helps the person to
re-evaluate the intent of the message and the potential consequences of sending the message. By reframing,
we must attempt to build a more positive message into the reworded statement.
Reframing can be useful in the following ways:
•
To tone down on a blaming or critical statement and state in a positive frame.
•
To shift from negative to positive.
•
To shift from past to future.
•
To identify the needs or concerns behind a stated position, which helps to analyze one’s own
perspectives and bring clarity to one’s own thoughts.
•
To identify the issue that needs to be resolved. This can be the start of building an agenda. Be careful
not to suggest or imply a solution in your reframe.
•
To emphasise common concerns or common ground.
•
To acknowledge emotions but not as a central focus.
Reframing in Everyday Life
This technique is not new to the human experience. For example, when we are embroiled in an internal
Page 2 of 4
REFRAMING
conflict, we often reframe issues automatically and for ourselves. We often reframe such issues in a way which
portrays us in a positive light or shows us ‘emerging the winner’. Thus, when we are forced to face the demise
of a loved one, we often tell ourselves that the person would have become unhappy to see us cry at their
going away. We tell ourselves that we are sure that they are in a better place where there is no pain or hurt.
Hence, we reframe unassumingly and with ease. This type of reframing allows us to continue living our life
while at the same time not feeling that we have betrayed our loved one by ’moving on’. Realistically, the reframer has no idea what their loved one would or wouldn’t have wanted. Since there is no way of knowing
what they would have wanted it is best to attribute the most positive thoughts to them.
Another example of reframing in everyday is the use of metaphors. Metaphors carry a dual meaning where the
example of one thing is given to explain the behaviour of another through comparison. Metaphors are a way
through which humans portray reality in a pointed and matter of fact manner to convey their point of view,
evaluations and assumptions. Metaphors when conveyed correctly structure our attitudes regarding whatever
they describe. They help us justify our actions and help us provide reasons for behaving in certain ways.
Once a party adopts a metaphor, a predictable pattern of behavior and attitude follows. Hence, if you can
judge the metaphor adopted by a disputant, you can predict his attitude towards the dispute and behavior
towards the other disputing party. For example, if a disputant adopts the metaphor that this ‘dispute is war,’
then the disputant will behave in an aggressive manner and succumb to various tactics to win at all costs but
their aggression will probably never allow them to reach a resolution of dispute. But if the metaphor can be
turned around or substituted for something favourable then a dynamic opportunity for dispute resolution may
emerge. For example, if a disputant makes up his mind that ‘being in the middle of the dispute is like a lonely
traveler crossing a desert,’ the metaphor provides a host of assumptions and entailments. The metaphor can
symbolise extreme and harsh circumstances with no hope in sight. On the other hand, the metaphor can also
point towards a need to ‘find a better sense of direction or avoiding the desert mirages of unproductive or
illogical solutions.’ The effect of this mirage on resolving the conflict can have huge implications. Another
way of constructive outlook towards conflicts is comparing a dispute to synchronised swimming or kayaking.
This metaphor conveys the notion of teamwork in achieving a goal and using the spirit of teamwork to come
to the forefront.
Metaphors are such an inherent part of Indian life that we tend to take them for granted. An example of
changing a negative metaphor to a positive metaphor is the Indian God Lord Shiva. Lord Shiva in many
scriptures is depicted as the ‘Destroyer’. Now, we give a very negative connotation to destruction in daily life.
However, the moment Indians attribute the quality ‘destruction’ to ‘Lord Shiva’, it automatically becomes a
positive attribute. Because Lord Shiva destroys the negative. The destruction of the ‘old’ by Lord Shiva is
supposed to pave the way for the construction of a new age and the dawning of a new era with renewed hope
and renewed life on Earth.
Reframing in Psychology
Reframing is a widely researched and frequently used technique in psychology to assist patients with changing
problem attitudes and behaviors. The idea behind reframing is ‘to change the conceptual and/or emotional
setting or viewpoint in relation to which a situation is experienced and to place it in another frame which fits
the ‘facts’ of the same concrete situation equally well, or even better, and thereby changes its entire meaning.’
Further, it has been stated that ‘our experience of the world is based on categorisation of the objects of our
perception into classes,’ and that ‘once an object is conceptualised as the member of a given class, it is
extremely difficult to see it also as belonging to another class.’ With reframing, once we see ‘alternative class
memberships,’ it is difficult to go back to our previously limited view of ‘reality.’ Reframing allows an idea or
object to be thought of as fitting into a different category.
How to Reframe
Reframing is effective when it is done by a person other than the speaker. When a speaker says something
Page 3 of 4
REFRAMING
negative or emphasises heavily on a problem, the other person must effectively intervene by reframing their
statement.
Reframing must be emphatic and constructive. By reframing, we must put the person’s problem in a more
favourable yet highly plausible light, without denying the existence of legitimate concerns. By reframing, we
must intend to improve the other person’s hopefulness, to provide new ways of looking at old problems and
to model a process of being more compassionate with oneself.
At times a person may be skeptical of you reframing. They may doubt the utility and legitimacy of your
reframing comments, viewing them as just so much positive spin. However, in such situations, one must
point out that the reframing comment intends to elucidate an alternative viewpoint, in a spirit of open
exploration. Since disputes are generally based on biases, prejudices and negative perceptions, reframing aims
to level the playing field to make way for a constructive solution.
Reframing makes the situation more hopeful or more on target with an objective assessment of the problem.
In a dispute, one party can reframe the negative statements of the other party to find areas of agreement and
collaborations. This results in more productive teamwork and a better sense of sharing a positive mission.
Reframing in Dispute Resolution
When a disputing party chooses and starts a dispute resolution process, he comes with his own understanding
and interpretation of the complication: the issues that is key to the dispute, reasons for the problem and most
importantly what will be the best outcome to the dispute. The manner in which a disputant narrates or
outlines a dispute is known as framing. One of the first tasks of a mediator in the mediation process is to
make the parties elaborate in detail their view of the problem. This exercise enables both disputants and the
mediator, to witness firsthand how each disputing party is framing the dispute. It has been seen that in most
cases, the preliminary statements of the disputants will reveal diametrically opposite views of the conflict. For
instance, opening statements tend to use adversarial language. The opening statements of a disputant most of
the times seek to put the blame anywhere other than on the disputant himself. People demand that the other
side should comply with their specific demands and attribute various negative qualities to the other disputant.
Such conflicting frames instigate hostility and prevent the disputing parties from arriving at an effective and
acceptable agreement.
In the context of disputes, framing means the manner in which a dispute is explained or a proposal to resolve
the conflict is worded. Through reframing we can change the way a thought is presented such that the
fundamental meaning of the idea is maintained in such a way that is more likely to aid and support the dispute
resolution efforts of the mediator. Although disputing parties can themselves engage in reframing without any
outside intervention, having a neutral third party like a trained mediator to guide you through the process
helps. It is the mediator’s job to help disputing parties to redefine the way they think and look at a dispute and
consequently communicate more positively in the strong hope that cooperation shall develop between
opposing sides. The main object of reframing is to create a common definition of the problem which is
acceptable to both the disputants and enhance the probability of more integrative, collaborative and win-win
solutions.
If the disputing parties are receptive, the process of reframing can occur effortlessly. However, if the
disputing parties are adamant, the process of reframing may take more time. In many conflicts, parties
themselves do not know the true nature of the dispute. They know that they have been wronged, they are
angry and that they want retribution or even revenge. However, in the middle of all this emotional turmoil
they may fail to identify the problem underlying the dispute clearly. With the assistance of a mediator and
through the process of reframing, the disputing parties begin to comprehend the underlying causes of the
dispute. Once the disputants begin to really understand each other’s point of view, it makes it easier for them
to come up with solutions that are mutually beneficial for both sides.
Page 4 of 4
REFRAMING
End of Document
ACTIVE LISTENING
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
ACTIVE LISTENING
Active listening is the ability and willingness to hear and understand what the other party is saying. At its core,
active listening is a state of mind that involves paying full and careful attention to the other person, avoiding
premature judgment, reflecting understanding, clarifying information, summarizing and sharing. By learning
and committing to the skills and behavior of active listening, we can become more effective listeners and over
the period of time improve our ability to have healthier professional and personal relationships.
We can all recall situations where we have utterly failed to listen to what someone else is saying. How many
times have you been introduced to a person by name only to not know what their name is thirty seconds
later? The reason why this happens is because you have failed to actively listen.
Active listening is different from plain, old listening. An active listener involves verbal interactions and openended questions that reflect back on what the speaker is saying, whereas a passive listener has minimal
interaction and does not engage the speaker further beyond what is initially said.
In active listening, through both words and non-verbal behavior, you convey these messages to the speaker:
•
I understand your problem.
•
I know how you feel about it.
•
I am interested in what you are saying.
•
I am not judging you.
You can use active listening with peers, customers, bosses, family, business partners, stakeholders and others
to:
•
Hear accurately
•
Connect
•
Soothe or heal
•
Change perspectives
•
Weigh Options
•
Gather information
•
Show respect
Page 2 of 4
ACTIVE LISTENING
•
Find answers
•
Set the stage for something else
•
Show appreciation
•
Understand
•
Empathise
•
Buy time
•
Build self esteem
•
Question assumptions and ideas
Active listening is the art of listening for meaning. For us to gain meaning from the words of another person,
we need to listen carefully. Meaning is not necessarily assured even if we are actively listening but we will at
least realize that we are not completely understanding what the person is saying and therefore ask the correct
questions to understand in what context the person is speaking.
Active listening must become a habit because it is the foundation of effective communication. None of the
other techniques of communication will be effective unless you are wholeheartedly devoting your attention to
the communication. Imagine a troop commander not really listening to his orders and attacking the wrong
target. A failure to actively listen can have equally dire consequences.
Many people give the appearance of listening but fail to really hear what is being said to them. They assume
that listening is such a basic human activity that it will happen automatically. Unfortunately, this is not the
case.
Active listening requires the listener to understand, interpret and evaluate what they are being told. Without
this, communication is nothing but a façade. This may suffice if you are chit chatting near the water cooler at
your office but it is wholly inadequate in a business environment or while having an important personal
conversation. Business and personal relationships depend on human interaction to succeed, the quality of that
interaction must be of the highest caliber.
There are many reasons why people fail to listen properly. They may be distracted by an activity they are
attempting while listening or by other thoughts in their head they deem to be more important or they might
be already building up what they are going to say next once the person finishes speaking which is a common
flaw in communication between parties whose opinions differ.
Active listening focuses attention on the speaker. It involves the listener subjugating their own needs for a
while in deference to those of the speaker. It requires concentration and a genuine willingness to hear what is
being said.
Why is it important to actively listen?
“Uh…huh… Sorry I was not listening… What did you say?”
Where there is an absence of active listening, there is poor communication and where there is poor
communication, opportunities are missed and problems are created or perpetuated. Active listening
encourages people to open up, reduces the chances of misunderstanding, helps to resolve problems and
conflicts and builds trust.
In a way, the importance of listening need hardly be stressed on. However, it is the misconception that
listening is easy and happens by default that needs clearing up. One of the most common complaints
Page 3 of 4
ACTIVE LISTENING
following any failed personal relationship is that the other party did not listen, or that there was a lack of
understanding which amounts to the same thing. When a person appears to be listening but fails to truly
understand what is being said and where the other person is coming from, this is because listening has not
really taken place. A failure to listen can create immense hurt if not damage.
Active listening tells the speaker that what they have to say matters. It creates a sense of confidence that
advice is at hand; advice that will be considered and useful. A listener is like a sounding board that allows the
speaker to develop thoughts that may up to that moment have been difficult to clarify.
Pointers to Active Listening
There are five key elements of active listening. They all help you ensure that you hear the other person, and
that the other person knows you are hearing what they are saying.
(a) Pay attention: It is important that you give your undivided attention to the speaker and acknowledge the
message at regular intervals. One should also learn to recognize that what is not said (such as facial
expressions) also speak loudly and many times convey much more than what is said. One should get into the
frame of mind of a learner and listener. Be present in the moment, do not be distracted and focus on now.
Remember that your intention is to establish a connection and try to understand the person’s perception. It is
not your job or anyone else’s to interrogate the person.
•
Maintain eye contact with the speaker (unless it is considered disrespectful in their culture).
•
Do not prepare your reply or argument while the person is talking. Try to listen and understand.
•
Do not be distracted.
•
Learn to decipher the speaker’s body language. Notice the intensity and tone of the speaker’s voice,
physical posture and facial expressions.
•
Avoid side conversations when listening in a group setting. This includes using social networking
apps and other forums.
(b) Show that you are listening: Convey that you are in the present by making effective use of your gestures and
body language. Lean forward, show interest and give non-verbal affirmations.
•
Nod occasionally.
•
Keep an inviting and open posture
•
Use facial expressions like smiling.
•
Encourage the other side to continue speaking with small verbal affirmations like hmm, yes, and uh
huh.
(c) Provide feedback: Our hearing is distorted by our assumptions, personal filters, beliefs and judgments. As a
listener, it is of prime importance that you understand what is being said by the speaker. This also involves
reflecting on what is being said and ask questions to clarify your doubts.
•
Use paraphrasing to reflect on what has been said
•
Clarify your points by asking question
•
Take gaps and periodically summarize the comments of the speaker.
(d) Defer judgment: Interrupting a person when he is speaking is a waste of time. It not only frustrates the
person who is trying to convey what he feels but also limits full understanding of the message by the listener.
Page 4 of 4
ACTIVE LISTENING
Be open to new ideas, new perspectives and new possibilities. Let the other side vent or blow off steam, if
needed. Do not jump immediately to problem solving or offering advice.
•
Do not be in a hurry to speak. The speaker should be allowed to complete what he wishes to convey.
•
Remember your points and put them forward once the person has finished speaking. Do not
interrupt the speaker in haste.
•
Acknowledge the differences, e.g. culture, personal background, current circumstances, etc.
•
Be patient. Don’t speed the conversation along.
•
Indicate your open mind with statements like ‘My goal here is to understand, not to judge or make a
decision.’
(e) Respond Appropriately: Active listening is a model for respect and understanding. You are gaining
information and perspective. You add nothing by attacking the speaker or otherwise putting him or her down.
Being an active listener also does not mean being a sponge, passively soaking up the information coming your
way. As you gain a clearer understanding of the other person’s perspective, introduce your ideas, feelings and
suggestions and address any concerns. Share your view and collaborate on solutions and the way forward.
End of Document
SUMMARISING
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
SUMMARISING
While discussing a contentious issue, communications can be lengthy. With the involvement of emotions and
the O/S 3 Neocortex gasps for glucose, we assume that we explained our position very clearly but that is
always not the case. Summarising by the listener assists the parties to come on the same page. It also shows
the speaker that the listener was actively listening. While summarising, it is important for the listener to not restate what was said. The listener should read between the lines and point out issues that the speaker has
highlighted. The listener should rephrase any negativity conveyed by the speaker and convert it into future
looking goals. Hearing a neutrally rephrased summary aimed at pushing towards focusing on issues instead of
persons is one of the most powerful tools of short-term de-escalation of a heated discussion. It also assists the
speaker understand if any points have been missed which the speaker would like to supplement.
In multi-party negotiations like insolvency turnaround, it is essential that summarising be used to avoid
psychological hurdles like anchoring. Anchoring is a negotiation and communication technique. Many of us
feel specially during negotiations that we should hear out what the other party has to say and then bargain
using the other party’s stated positions. However, we do not realise that this allows the party who speaks first
to set the tone, agenda and even the starting point of the negotiation. Taking an objective approach of
evaluation sometimes may allow parties to realise that the objective value or starting point is much higher or
much lower that what the parties perceive it to be. In multi-party joint meetings, the standard practice of open
discussion gives too much weight to the opinions of those who speak early and assertively, causing others to
line up behind them. This can be avoided by requesting each party to submit a summary of their views
beforehand so that good use can be made of the diverse knowledge and opinion in the group.
End of Document
STORYTELLING
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
STORYTELLING
“The human mind is a patternseeking, story-telling device.”
- Stephen Jay Gould
Stories are narratives people tell about experiences, events, personal or collective memories or aspects of
individual biographies. They may be shared orally, through the written word, or through other modes of
communication. Storytelling is the practice of sharing narratives with self and others. From a theoretical
perspective, storytelling is often explained as something that individuals use to create meaning in their own
lives. From this perspective stories and storytelling are communication tools used to organise and interpret
collective and individual phenomena as well as to make sense of personal and shared experiences and to
experience dialogue.
Since the discovery of the first cave painting 2700 years ago one of our most fundamental methods of
communication has been telling stories. We all enjoy both listening to and telling a good story. This story may
be in the form of a movie, our loved one telling us what they did that day, a novel, a theatre play or even
those of us who turn our heads 360 degrees while driving just to keep watching a brawl disrupting traffic on
the road. The most glaring usage of storytelling by us in daily life is citing examples. A good example always
makes something easier to understand and remember.
What is the reason we feel so much more engaged when someone begins a boring presentation with an
engaging story instead of statistics?
The Magic Trick Revealed
Like all magic tricks, the reason is quite simple. While listening to a power point presentation with mundane
bullet points, the language processing parts of our brain called Broca’s area and Wernicke’s area get activated.
These parts of the brain help us decode words into meaning. Nothing more happens. All other parts of the
brain remain mundanely dormant.
However, things change dramatically when someone begins telling us a story. The brain goes full throttle and
gets activated left, right and centre, literally. Every part of the brain that would get activated when we actually
witness an event like this gets activated in addition to the language processing parts in our brain activated. For
instance, if someone is describing the tangy flavor of chaat or gol gappas to us, our sensory cortex lights up as
we ourselves are eating chaat and we start salivating. If the story is about motion and speed, our motor cortex
gets activated. So, a story can put your whole brain to activate like the musicians in a symphony orchestra.
And yet, it gets better.
Page 2 of 4
STORYTELLING
When we are recounting incidents that have really helped us shape our way of life and thinking to others, we
can have the same effect on them too. The brain of the person narrating a story and listening to the story can
get synchronised and the listener can experience the same feelings and senses that the storyteller has
experienced.
Why does the format of a story, where events unfold one after the other, have such a profound impact on our
learning?
The simple answer is this: We are wired that way. A story, if broken down into the simplest form, is a
connection of cause and effect. And that is exactly how we think. We think in narratives all day long, no
matter if it is about buying groceries, whether we think about work or our spouse at home. We make up short
stories in our heads for every action and conversation. In fact, research has proved that personal stories and
gossip make up 65% of our conversations.
Now, whenever we hear a story, we want to relate it to one of our existing experiences. That is why
metaphors work so well with us. While we are busy searching for a similar experience in our brains, we
activate a part called insula, which helps us relate to that same experience of pain, joy or disgust.
The Impact of Storytelling
Storytelling is a form of performance in which we use our imagination and intellect to understand others and
ourselves. Thus, storytelling can be viewed as means for ordering potentially disconnected experiences into
mutually interrelated, meaningful episodes of a larger plot, be that a biography or a common history. To tell a
story, therefore, is to perform a meaningful individual and social act. In other words, individuals construct
realities such as their identity by telling and retelling narratives about themselves (inevitably in relation to
others) and thereby making sense of their experiences.
People rarely make decisions on the basis of rational analysis of data at the best of times. And when they are
under stress, or being measured against a target, or being asked to change their behavior, then rational
argument, instructions and values – however clear they may be – will do little to persuade them. This is where
stories can be more engaging and effective.
Stories arouse listeners to confront their own thoughts, feelings, attitudes and actions to the extent of being
therapeutic. Stories evoke visual images and emotions, pulling the listener/reader into the scene. Several
studies show that information is more quickly remembered, persuasive and believable when presented as
stories.
The Piped Piper of Silicon Valley
Among the many things that made Steve Jobs a genius was the fact that he was a storyteller at heart. Perhaps
the most famous story he ever told was the inspirational story of his life at the Stanford Graduation ceremony
of 2005. His speech at Stanford which begins with the epic line, “Today I want to tell you three stories from
my life…” is one of the most viewed speeches by the present-day generation. The speech was so iconic that it
has inspired famous management books with the keywords as titles in India.
His Stanford commencement speech is an example of a great story using the hero’s journey model. It has all
of the right elements, starting with an engaging life story - how he was born to a young, unwed college
graduate, adopted by working class parents, etc. Later, talks about bouncing around an expensive private
college he cannot afford, sleeping on his friends’ dorm room floors, finally dropping out.
The first story talks about how his one class in calligraphy wound up helping him create the first typefaces in
Page 3 of 4
STORYTELLING
the original MacIntosh. His next two stories were even more powerful, talking about love and loss, and facing
death. One message was he would have ‘never been successful if I hadn’t been fired by Apple’ the first time
around. He goes on to talk about his emotional battle and facing cancer and death, and how that transformed
his thinking.
This speech is authentic, gritty and relevant for a college audience about to set forth into the world.
The ‘moral’ of his three stories has been imprinted in the minds of many who have heard the speech:
•
You can’t connect the dots looking forward; you can only connect them looking backwards.
•
Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what
you believe is great work. And the only way to do great work is to love what you do. If you haven’t
found it yet, keep looking. Don’t settle.
•
Your time is limited, so don’t waste it living someone else’s life. Don’t be trapped by dogma - which
is living with the results of other people’s thinking. Don’t let the noise of others’ opinions drown out
your own inner voice. And most importantly have the courage to follow your heart and intuition.
That is the power of storytelling.
Source: Steve Jobs and the Power of Storytelling, http://ioncorporation.com/blog/?p=1419 (last accessed on 25
March 2015).
Storytelling in Communication
One of the most crucial communication strategies which humans use is storytelling. It is an effective tool
which can be used to condition the minds of people for the following purposes:
•
Influencing their thought process;
•
Helping people to cope with change;
•
Motivation;
•
Transmitting values and ideals;
•
Unifying a group towards achieving a common purpose;
•
Develop a shared sense of common identity.
When you recreate a story in the mind of a person, you are doing more than just delivering a monotone
sermon. We are used to people constantly bugging us to change. Sometimes we are fed up of scolding,
requesting and lashing out at people who ‘just don’t listen to us’ when we ask them to change. Instead of
asking people to change, what creates a more powerful impact is narrating a story where someone has already
gone through the change. The story creates an empathetic understanding and helps the listener follow the
path the hero in the story followed in his mind. This enables the listener to learn and figure out the lesson for
himself. It makes the listener believe that what is being asked of them is actually ‘doable’. It is easier to make
people act out of emotional engagement. It is not easy to inspire people to act on merely logic and reason.
As long as there have been campfires, humans have gathered around them and conveyed their view of the
world through the use of stories. Stories are a shared experience and we are hard-wired to receive information
primarily through storytelling. Stories trigger the ancient human muscle of the imagination. Our own early
years were largely spent through play and exploring. We experienced the world through direct engagement
and, as children, we learned through being told bedtime stories, fairy tales, hearing family stories around the
dinner table. We became story-listeners when we were young. When you use storytelling in communication,
Page 4 of 4
STORYTELLING
you bring the audiences back to a natural state of primal listening. Hence, if we can tell an effective story, we
can persuade the other party to take notice, leave their combat mode and listen attentively.
Storytelling can be used in conversations to:
•
Build trust in you, a system or method of doing something
•
Transmitting morals and values
•
Transmitting do’s and don’ts
•
Motivating others to action
•
Sharing knowledge and experience
•
Sharing a vision or dream
•
Motivating a change in behaviour
Weave a Tale
Few tips to tell a good story:
•
Your story should always have some link to what really happened.
•
The story should be chosen based on the interests and needs of the audience and their existing
perception of the world.
•
The shorter the anecdote, the greater the impact. • Speak from the heart and with sincerity, more
authentic the emotions, greater the mind stimulation.
•
The story should have an element of human interest.
•
Avoid using figures and numbers. E.g. Instead of saying 10 apples, say a basket full of apples.
•
Appeal to shared values and beliefs of the listeners.
•
Try using the words ‘we’ and ‘us’.
•
Avoid saying ‘I’, ‘me’ and ‘them’.
•
Bring the scene and characters to life by describing things which generally grab the attention of a
listener. The smartness of the dress worn by the hero may be relevant for some listeners. Sun rays
streaming through the window like gold dust may be relevant to some other listeners.
Engross your audience with the use of metaphors, analogies and make use of specific details.
End of Document
SILENCE
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
SILENCE
A moment of silence in a horror movie - Suspense.
A moment of silence when you come home late and your father catches you - Fear.
Silence in a library - Concentration, Focus.
Silence in a church - Devotion.
A moment of silence to commemorate the dead - Mourning.
Silence on top of a mountain - Peace, Awe.
Silence is not merely the absence of sound. It is a statement in itself and conveys meaning in communication.
Silence can be in fact a very effective communication tool. Communication is simply about conveying a
message, and sometimes silence can do way better than any words.
In relationships, communication often becomes a game of one-upmanship, rather than an exchange of ideas.
The goal becomes to get the last word or have your idea win out, instead of a sharing of ideas. When
communication functions in this way in a relationship, division is fostered rather than unity. It’s no wonder
that “communication problems” is the top problem cited by partners coming to couples counseling.
Here are three reasons to use silence in your communication:
•
Communicate better - Many of us talk too much. All of us occasionally can be guilty of over talking a
subject to the extent that our point is missed. Silence forces us to shut up and get our message across
in fewer words. Ironically, fewer words can result in a clearer, stronger message.
•
Hear what’s really being said - Keeping our tongue quiet frees us up to listen to our partner. When
we’re not running off at the mouth, we can focus on what the other person is saying, plus pay
attention to their non-verbal communication.
•
Reach resolution faster - The goal of communication should be to share information and reach a
decision, not to win. Being silent at times not only reduces the noise but also speeds up resolution.
Page 2 of 3
SILENCE
It does take some courage to use silence as a communication tool, and it is not always easy to do. Ironically,
we can feel more comfortable and safer if we keep talking. It is risky to leave our words hanging without
further explanation or defense. But there is power in that silence, too.
Silence in presentations
It is normal to feel nervous or a sense of excitement before speaking in public. Sometimes we prepare for the
moment so much that we try to rush through our presentation. However, if we speak too fast or we are in a
hurry, the essence of communication is lost. For our thoughts to really sink in, it is necessary to take pauses
while we speak. This adds impact to our words. Use silence in the beginning of your presentation to allow
people to mentally settle down. Pause after you finish an important portion of your presentation to give scope
to people to ask questions and clear their doubts before moving forward. However, be careful not to stretch
the silence for unnatural periods which will make people perceive you as clueless as a deer in the headlights.
Silence as a negotiation tool
Silence is a powerful stalling tool in negotiation. It is normally used by a negotiator by making a statement
targeted to evoke a response and then by keeping silent. This can encourage the other party to disclose
information he was not planning to disclose. Pausing before giving a response can also help a negotiator to
avoid responding too quickly. However, silence fails as a negotiation tool when both parties are staunch at
their position and refuse to budge.
Silence improves creativity
We learn a lot when we listen to other, at least most of the time. If we are the only ones doing all the talking
in meetings and discussions, there is a possibility that we may miss out on other people’s ideas. Sometimes we
may adapt someone’s general comment and come up with something creative. Consider putting yourself in
pause mode for some time and observe what happens next. There is a possibility that quiet colleagues who
normally feel they miss their moment may speak up. You may also find members of your team become more
reflective and this may help you generate a wider range of alternatives. Of course, keep an open mind when
others talk. This will not be useful otherwise.
Silence is essential when working internationally
When working colleagues and partners on a global scale, we need to remember that English is not the
language used by majority of the world in daily life. Colleagues and partners may need additional time to
process the messages they receive and further to formulate their own responses. Be patient. Do not cut into
their sentences. Again, do not create a cultural barrier by assuming that your international colleagues are
passive, slow, disinterested, not intelligent or lacking in ideas and opinions. This will happen only because you
did not allow them the opportunity to express themselves. While using silence as a tool, cross cultural
considerations are also important. For instance, in East Asia, silence is used as a sign of respect.
Miscommunication through Silence
Silence, however is a double-edged sword. When on one hand, silence is a powerful communication tool,
when used inappropriately, it turns into a time bomb waiting to blast. Because of its ambiguous function and
usage, silence is also a major source of inter-cultural miscommunication, which frequently leads to negative
judgments, and breeds stereotypes.
Silence can lead to misunderstanding or a feeling in the speaker that the listener is not interested in the
conversation. It can leave important things left unsaid. It can make the speaker feel that the listener is acting
inattentive, mute or non-responsive. Moreover, silence causes presumption. This leaves a wide scope for
distorted perception which ultimately culminates into a dispute.
Who did you lose first yourself or me?
In the Indian Epic Mahabharat the Pandavas were invited to a game of dice by Kauravas, their cousins. The
Page 3 of 3
SILENCE
eldest Pandava Yudishthir was very fond of playing the game of dice although he was not very good at it. He
could not resist the temptation and accepted the invitation. On the day of the game the Pandavas along with
Draupadi went to Hastinapur the capital of the Kaurava kingdom.
Yudishthira played on behalf of the Pandavas and Shakuni an extremely skilled dice player rolled the dice on
behalf of Kauravas. Both teams placed bets on each move. At first the bets were small - a few coins, a ring, a
necklace, but as the game progressed the bets became bigger. As Shakuni initially lost few rounds to
encourage Yudhishthir to play more. Yudhishthir’s interest to win more and more guided him to stake higher
things. He started losing in the higher stakes. His anxiety to win whatever he had lost heightened. One by one
Yudhishthir staked and lost everything he owned. As the day progressed Yudhishthir lost everything he
owned. Everyone in the assembly suspected that Shakuni’s dice were loaded but everyone including the elders
of the family – Bhishma, Vidura, Drona and Dhritrashtra remained silent.As the game progressed gambler’s
madness ceased Yudhishthir. He staked and lost each of his brothers. Then he staked and lost himself. Finally
Yudhishthir did the unthinkable. He staked and lost his wife Draupadi.
A servant was sent to summon Draupadi to the assembly. When Draupadi heard what had happened she
famously asked the servant to go and ask Yudhishthir - “Who did you lose first yourself or me? For if you lost
yourself first how can you still have rights over me?”
This made Duryodhana the eldest Kaurava furious. He sent his brother Dushasana to bring Draupadi to the
assembly. As Dushasana drags Draupadi into the assembly grabbing her by her unbound hair the assembly
remains silent. When Duryodhana insults Draupadi and calls her his slave the assembly remains silent.
Emboldened by the silence of the elders Duryodhana orders Dushasana to disrobe Draupadi in front of the
assembly but the silence of the so-called elders of the Kuru clan prevails. As Draupadi wails in sorrow and
requests the elders one by one to intervene and stop this madness nobody responds.
In the thick of this silence the war of Kurukshetra took roots. As the Pandavas saw Draupadi their wife
humiliated in public and they felt hopeless and powerless unable to protect their queen each Pandava took a
vow to annihilate the Kauravas. Draupadi herself vowed that she would not tie her hair until she washes her
hair with Dushasana’s blood.
End of Document
SMOOTHENING THE ROADBLOCKS
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
SMOOTHENING THE ROADBLOCKS
Developing effective communication skills does not happen overnight. We cannot become an effective
communicator as easily as taking part in a theatrical performance. In order to undertake effective
communication, we must avoid the vicious cycle of communication roadblocks.
A primary reason for lack of effective communication is that, without realising it, people typically inject
communication barriers into their conversation. Communication barriers are high risk responses i.e.,
responses whose impact on communications is frequently negative. These roadblocks are especially likely to
be destructive when one or more of the persons are interacting under stress. Thomas Gordon, an American
psychologist and three times Nobel Prize nominee, devised a comprehensive list that he calls the ‘dirty dozen’
of communication spoilers. There is nothing right or wrong about talking this way. But very often, these
roadblocks disallow a person from expressing himself and divert his thinking from problem solving to how to
overcome these ‘roadblocks’. They are as follows:
Ordering, Directing and Commanding
The first roadblock to avoid is giving people orders or commands. When we create such a roadblock, we are
going on the wrong assumption that we have all the correct answers, ideas and solutions. Some examples are:
“Stop feeling sorry for yourself.”
“Stop whining and get back to work.”
“Don’t talk so much.”
“You’ve got to face the reality.”
“Go back there and tell him you are sorry.”
Warning and Threatening
These messages are similar to directing but they also carry an overt or hidden threat of impeding negative
consequences if the advice or direction is not followed. It may be a threat that the individual will carry out or
simply a prediction of a bad outcome. Rather than discussing the other party’s inclination to act in a particular
way, the other person warns the other party instead. The person tries to operate in a superior position without
any consultation with the party they are communicating to. Some examples are:
“If you do that, you will be sorry.”
Page 2 of 5
SMOOTHENING THE ROADBLOCKS
“You will never get married, if…”
“You will never get promoted if…”
“If you keep interrupting the meeting, we will have to ask you to step out.”
Exhorting, Moralising and Preaching
This roadblock involves imposing one’s own moral values on others. People who create this roadblock
wrongly believe that what they are saying is universal rather than a personal choice or value. The person
invokes his personal moral code in ‘should’ and ‘ought’ language. The implicit communication is instruction
in proper conduct. Some examples are:
“It is your duty to…”
“Your Dharma should not permit you to…”
“It is simple, common courtesy to let people finish what they say before breaking in.”
“Life is not a bed of roses.”
“You ought to know that doing this is wrong.”
Advising, Giving Solutions
When people believe that the other party has nothing useful to contribute to the resolution of a problem, they
make unilateral decisions without taking the other party’s inputs. When people in a problem want to solve the
problem without taking any inputs from the other party, believe that their way of seeing the problem is the
only way to see them. The other party is treated as hapless and inadequate for not seeing the problems the
way the advisor sees them. Some examples are:
“I suggest you change your service provider today itself.”
“What I would do if I were in this position is…”
“Why don’t you consult an expert.”
“This problem is very easy to solve. All you need to do is…”
“Why can’t you see that this problem can be resolved by…”
Lecturing and Persuading with Logic
The underlying assumption in this is that the person has not adequately reasoned it through and needs help in
doing so. This discourages the other person from discussing the underlying emotions and feelings related to
the problem. Some examples are:
“Here is why you are wrong…”
“The fact is that…”
“Look at the facts: if you hadn’t bought that new car, we could have made the down payment on the house.”
Page 3 of 5
SMOOTHENING THE ROADBLOCKS
“You have two choices. Either stay or leave. That is all you have to decide.”
Judging, Criticising, Disagreeing and Blaming
This commonly involves an implication that there is something wrong with the person or with what he or she
has said. In this kind of response, the person sees himself as a judge of the other person’s behavior. Instead of
being supportive, the person tries to grade the other person’s behavior based on what they think are the set
standards. This can only serve to demean the other person and make the other person who is grappling with
problems feel unsure. Some examples are:
“You’re wrong about that.”
“You brought it on yourself. You’ve got nobody else to blame for the mess you are in.”
“It’s your own fault”
“Don’t you think you ought to think of others?”
Agreeing, Approving and Praising
Some people are surprised to find this included in the list of roadblocks. This kind of message gives a sanction
or approval to what has been said. This too, stops the communication process and may also imply an uneven
relationship between speaker and listener. True listening is different from approving and does not require
approval. Some examples are:
“I think you’re absolutely right…”
“That is exactly what I would do…”
“You’re smart enough to know what you need to do.”
“You’re right. That person sounds awful.”
“That’s how I would feel if I were you.”
Shaming, Ridiculing and Name Calling
Making another person feel foolish is another roadblock. Sometimes people give these responses because they
are just fed up. They may tell themselves that they have the right to express such degrading sentiments
because they put up with so much from the other party. They try to excuse what they have said by claiming
that they have endured long term disgust or exasperation. Some examples are:
“You’re an idiot!”
“You’re a cry-baby.”
“Act your age. You’re not in kindergarten.”
“How could you do such a thing?”
“You should be ashamed of yourself.”
Interpreting, Analysing and Diagnosing
Another roadblock consists of telling the listener what their motives are or analysing their actions. In an
Page 4 of 5
SMOOTHENING THE ROADBLOCKS
attempt to feel vastly superior than the other party, the person tries to show the other party that they know
more about the other party’s inner conflicts than the other party themselves know. Some examples are:
“I think what you really want is to…”
“You are sub consciously trying to…”
“What’s wrong with you is...”
“What you really mean is...”
Reassuring, Sympathising
The intention here is to usually make the person feel better. These responses are offered as a way of
comforting the other party but they serve to cut off the real discussion of painful feelings. Telling the other
person you know how they feel or understand what they are feeling is not convincing even if you have had
similar experiences. Listening to the feelings is better off than cutting them off. People generally offer
reassurance instead because this saves time and makes the other person feel better. But this does not resolve
the conflicting emotions. Some examples are:
“You’ll feel better in the morning.”
“I know exactly how you are feeling. You need not explain further.”
Inappropriate Questioning, Probing
People often confuse asking many questions with effective listening. Here the intention is to probe further
and find out more. However, asking too many questions interfere with the spontaneous flow of
communication. It diverts it in the direction of interest to the questioner but not perhaps, of help or concern
to the speaker. Generally, these questions are close-ended questions. Some examples are:
“Are you sorry that you did it?”
“You’re going to do that?”
“Do you really think this is the right way of doing it?”
“Can you not do that?”
“Are you blaming me?”
Withdrawing, Distracting, Humouring, Changing the Subject
Trying to get the speaker to focus on something other than the problem is another roadblock. This directly
diverts communication and underneath implies that what the person was saying is not important and should
not be pursued. Some examples are:
“Let’s talk about this some other time”
“This reminds me of the time when I…”
“Seems like you got up on the wrong side of the bed today.”
“You think you’ve got problems! Let me tell you about ...”
Page 5 of 5
SMOOTHENING THE ROADBLOCKS
Gordon claims that they act as communication barriers because they interrupt the process of solving the
problem, whereas our verbal support should be limited to directing the speaker’s thoughts until the speaker
comes up with constructive inputs to the solution. What is more, instead of encouraging, these responses
carry a harmful meaning which is often unintentional. It may not be practically possible to be so conscious as
to never respond in any of the ways discussed above. Yet, many of us who repeatedly and excessively use one
of the abovementioned responses can try and reduce the number of times we do so.
“Speaker-Listener” Technique
Overcoming communication roadblocks requires effective speaking and listening skills. Markman, Stanley and
Blumberg (2010) share what they call the “speaker-listener” technique to help individuals communicate more
effectively. In this exercise, each partner takes turns being the speaker and the listener.
The rules for the speaker include:
1. The speaker should share his/her own thoughts, feelings and concerns - not what he/she thinks the
listener’s concerns are.
2. Use “I” statements when speaking to accurately express thoughts and feelings.
3. Keep statements short, to ensure the listener does not get overwhelmed with information.
4. Stop after each short statement so that the listener can paraphrase, or repeat back in his/her own
words, what was said to ensure he/she understands. If the paraphrase is not quite right, gently
rephrase the statement again to help the listener understand.
The rules for the listener include:
1. Paraphrase what the speaker is saying. If unclear, ask for clarification. Continue until the speaker
indicates the message was received correctly.
2. Don’t argue or give opinion about what the speaker says—wait to do this until you are the speaker,
and then do so in a respectful manner.
3. While the speaker is talking, the listener should not talk or interrupt except to paraphrase after the
speaker.
These rules also make good rules to make effective communication as a tool to prevent or resolve disputes
since they promote safe and meaningful discussion and to understand each other’s point of view. While we
may not always agree with the other’s point of view, understanding and validating other’s thoughts and
feelings can improve relationships and help us build on common ground, which may lead to more effective
negotiation and problem resolution.
End of Document
CULTURE AND COMMUNICATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CULTURE AND COMMUNICATION
Culture has been defined in numerous ways but generally, scholars see culture as the set of important
assumptions (often unstated) that members of a community share in common. Every group, corporate or
otherwise, has a unique culture that is shaped by its members’ shared history and experiences.
Culture is the socially transmitted behavior patterns, norms, beliefs and values of a given community. Persons
from that community use the elements of their culture to interpret their surroundings and guide their
interactions with other persons. So, when an executive from a corporation in Dallas, Texas, sits down to
negotiate a business deal with a manager from a Houston company, the two negotiators rely on their common
culture to interpret each other’s statements and actions.
But when persons from two different cultures - for example an executive from Texas and a manager from
Japan - meet for the first time, they usually do not share a common pool of information and assumptions to
interpret each other’s statements, actions, and intentions. Culture can therefore be seen as a language, a ‘silent
language’ which the parties need in addition to the language they are speaking if they are truly to communicate
and arrive at a genuine understanding. Culture also serves as a kind of glue - a social adhesive - that binds a
group of people together and gives them a distinct identity as a community. It may also give them a sense that
they are a community different and separate from other communities.
High Context and Low Context Culture
This categorisation of culture is based on the research of anthropologist Edward T. Hall. Hall’s theory of high
- and low-context culture helps us better understand the powerful effect culture has on communication. A key
factor in his theory is context. This relates to the framework, background, and surrounding circumstances in
which communication or an event takes place.
High-context cultures (including much of the Middle East, Asia, Africa, and South America) are relational,
collectivist, intuitive, and contemplative. This means that people in these cultures emphasize interpersonal
relationships. Developing trust is an important first step to any business transaction. According to Hall, these
cultures are collectivist, preferring group harmony and consensus to individual achievement. And people in
these cultures are less governed by reason than by intuition or feelings. Words are not so important as
context, which might include the speaker’s tone of voice, facial expression, gestures, posture—and even the
person’s family history and status. A Japanese manager explained his culture’s communication style to an
American: “We are a homogeneous people and don’t have to speak as much as you do here. When we say one
Page 2 of 5
CULTURE AND COMMUNICATION
word, we understand ten, but here you have to say ten to understand one.” High-context communication
tends to be more indirect and more formal. Flowery language, humility and elaborate apologies are typical.
Negotiations may take longer to develop, and greater social interaction between parties to develop the
relationship is expected.
Low-context cultures (including North America and much of Western Europe) are logical, linear, individualistic
and action-oriented. People from low-context cultures value logic, facts and directness. Solving a problem
means lining up the facts and evaluating one after another. Decisions are based on fact rather than intuition.
Discussions end with actions. And communicators are expected to be straightforward, concise, and efficient
in telling what action is expected. To be absolutely clear, they strive to use precise words and intend them to
be taken literally. Explicit contracts conclude negotiations. This is very different from communicators in highcontext cultures who depend less on language precision and legal documents. Negotiation may take place
relatively quickly; in one or few sessions. The focus is on the issue at hand, not the parties engaged in the
business.
High Context (HC)
Low Context (LC)
Association
Association
•
Relationships depend on trust, build up slowly, are stable.
One distinguishes between people inside and people outside
one’s circle.
•
Relationships begin and end quickly. Many people can be
inside one’s circle; circle’s boundary is not clear.
•
•
How things get done depends on relationships with people
and attention to group process.
Things get done by following procedures and paying
attention to the goal.
•
•
One’s identity is rooted in groups (family, culture, work).
One’s identity is rooted in oneself and one’s
accomplishments.
•
Social structure and authority are centralized; responsibility
is at the top. Person at top works for the good of the group.
•
Social structure is decentralized; responsibility goes further
down (is not concentrated at the top).
Interaction
Interaction
•
High use of non-verbal elements; voice tone, facial
expression, gestures and eye movement carry significant
parts of conversation.
•
Low use of non-verbal elements. Message is carried more by
words than by non-verbal means.
•
•
Verbal message is implicit; context (situation, people, nonverbal elements) is more important than words.
Verbal message is explicit. Context is less important than
words.
•
•
Verbal message is direct; one spells out things exactly.
Verbal message is indirect; one talks around the point and
embellishes it.
•
•
Communication is seen as a way of exchanging information,
ideas and opinions.
Communication is seen as an art form—a way of engaging
someone.
•
•
Disagreement is personalised. One is sensitive to conflict
expressed in another’s non-verbal communication. Conflict
either must be solved before work can progress or must be
avoided because it is personally threatening.
Disagreement is depersonalised. One withdraws from
conflict with another and gets on with the task. Focus is on
rational solutions, not personal ones. One can be explicit
about another’s bothersome behavior.
Territoriality
Territoriality
•
•
Space is communal; people stand close to each other, share
the same space.
Space is compartmentalised and privately owned; privacy is
important, so people are farther apart.
Temporality
Temporality
•
•
Everything has its own time. Time is not easily scheduled;
needs of people may interfere with keeping to a set time.
What is important is that activity gets done.
Things are scheduled to be done at particular times, one
thing at a time. What is important is that activity is done
efficiently.
Page 3 of 5
CULTURE AND COMMUNICATION
High Context (HC)
Low Context (LC)
•
Change is slow. Things are rooted in the past, slow to
change and stable.
•
Change is fast. One can make change and see immediate
results.
•
Time is a process; it belongs to others and to nature.
•
Time is a commodity to be spent or saved. One’s time is
one’s own.
Learning
Learning
•
Knowledge is embedded in the situation; things are
connected, synthesized and global. Multiple sources of
information are used. Thinking is deductive, proceeds from
general to specific.
•
Reality is fragmented and compartmentalised. One source of
information is used to develop knowledge. Thinking is
inductive, proceeds from specific to general. Focus is on
detail.
•
Learning occurs by first observing others as they model or
demonstrate and then practicing.
•
Learning occurs by following explicit directions and
explanations of others.
•
Groups are preferred for learning and problem solving.
•
•
Accuracy is valued. How well something is learned is
important.
An individual orientation is preferred for learning and
problem solving.
•
Speed is valued. How efficiently something is learned is
important.
Case 1: Tibetan Tale
Location: Dharamsala, India
Three weeks after I arrived in Dharamsala, India, my host family and I were invited for a special dinner at a
relative’s house. I knew the dinner would last for hours and hours, and I couldn’t leave to study for my exam
the next day because it would be considered rude to do so. Therefore, I stayed and studied during the long
preparation of the dinner. I read and highlighted our textbook, A Joyful Picnic for Those Who Have Come from
Afar.
Visiting Tibetan monks were watching me with what I thought was fascination. I continued to read and
highlighted more. As the dinner was served, I placed my textbook at my side near my feet. (I was sitting in a
meditation posture, with my feet on the chair.) While I began enjoying my meal, the monks were still staring
at me, this time with anguished looks. Suddenly they emotionally addressed the group in Tibetan. It was
obvious they were both angry and frustrated and they glared at me the whole time. My host mother
apologised, explaining to the monks “inji, inji” (Westerner).What did I do wrong?
(check last pages of chapter for answers)
Collectivism and Individualism
Collectivism holds that the individual has no rights, that his life and work belong to the group (to society, to the tribe, the state and the nation) and that the group may
sacrifice him at its own whim to its own interest.
—Ayn Rand, The Virtue of Selfishness
The term individualism is used to define the degree to which members of society define their self-image as an
individual or as part of a larger group. On the other hand, those who define themselves from the social and
collective aspects of the self-concept are described with the term collectivism. Individualism and collectivism
are sometimes seen as opposite ends of a single continuum, but it is more accurate to describe them as
worldviews that make different aspects of the self-concept salient. The core elements of individualism are
independence and uniqueness, whereas the core elements of collectivism are duty to in-group and maintaining
Page 4 of 5
CULTURE AND COMMUNICATION
harmony. For collectivism, the prototypical relationship is the family. The family cares for its members and
cooperates together, often acting as a single unit with common goals. Each member of the family has a welldefined role and status determined by position within the group. Family members have strong emotional ties
to one another and are linked typically for life. For individualism, the prototypical relationship is the
marketplace where an individual makes a payment and receives a good or service in return. The relationships
are emotionally distant and although members of the market interact frequently, each member maintains his
or her own distinct identity. The marketplace encourages competition, and status is usually determined by
individual achievement and success and not by membership in a particular group.
Collectivist cultures are of many kinds. In this context, it is important to distinguish between vertical (like
India) and horizontal (like the Israeli kibbutz) collectivist cultures. Vertical cultures are heavily based on
traditions. They emphasise on unity in group, adherence to norms laid down for the group and any directives
issued by an authority figure. As an example, vertical collectivist culture is generally compared to right wing
authoritarianism. Some common features are the tendency to be submissive towards authority and
endorsement of conventionalism. Both vertical collectivism and right-wing authoritarianism place greater
importance on age and religiosity rather than education and exposure to diverse persons. On the other hand,
horizontal collectivist cultures give more significance to cooperation, empathy and sociability. Collectivism
also varies with genders. Research studies suggest that male collectivism is derived from group memberships
(e.g., “I am an American”, “I support Mumbai Indians”) and female collectivism has its base in specific
relationships (e.g., “I am Vanita’s best friend”).
In the context of business dealings, instances of competitiveness are high in vertical individualist cultures like
USA. There is focus on ‘survival of the fittest’ and one must be ‘the best’ in what one does to successfully
climb the ladder of hierarchy. In countries like Australia and Sweden which have a horizontal individualist
culture, hierarchical differentiation is not emphasized as much. Instead, the emphasis is on uniqueness,
independence from others and self-reliance.
In dispute situations, collectivists generally place more emphasis on maintaining relationships with others. The
prime focus of individualists in a conflict is achieving justice and correcting the wrong. Thus, collectivists tend
to prefer conflict resolution mechanisms that may help save or sustain relationships (e.g., mediation) and
individualists are generally more willing to go to court to settle a dispute.
Individualistic
In-Between
Collectivist
United States
Austria
Brazil
Australia
Israel
Peru
England
Spain
Greece
Canada
India
Philippines
North European nations
Japan
México
New Zealand
Argentina
Portugal
France
Iran
Hong Kong
Scotland
Italy
Chile
Case 2: Slippery Slopes
Once in Bali, Indonesia, a person was sitting in the courtyard of a palace talking to a friend who happened to
also be a local young prince. He was in a hurry to leave because the sun was setting and he had to return to
Page 5 of 5
CULTURE AND COMMUNICATION
the village where he was staying. He apologised for his foreign manners and for the inconvenience of his stay,
as was customary to do in the local culture. He then requested the prince, if the prince would take a picture
with him. The prince agreed happily and called a servant over to take the photo. Another king from a nearby
village who was also visiting walked over. The foreign visitor requested the king to join in the group photo.
The foreign visitor moved over to his left to make room for the king. The atmosphere suddenly became very
tense. The servant also refused to click the photo. The servant looked nervously at the king and then to the
foreigner’s right with Mt. Agung in the background. The servant apologized and said that it was not
appropriate to take the picture.
Why not? What went wrong? (Again, check the last pages of this chapter for the answer.)
Culture in the Context of Business Negotiation
For nationals of one country time is money, for nationals of another country, time is used to build trust. It is
important for global leaders, business people, international lawyers, and diplomats to understand the culture
of the country where they are negotiating. Otherwise ignorance of cultural nuances may cause the negotiations
to fail or completely destroy relationships between the parties.
High Context Cultures
Low Context Cultures
•
More reliance on verbal communication
•
Paper work encouraged
•
Emotions are given importance
•
No room for emotions
•
Trust considered important
•
No role of trust in getting job
•
Easy going in relation to time
•
Time considered precious
•
Project clearances based on personal background
•
Project clearances based on facts
•
Lawyers are less important
•
Lawyers are important
Collectivism
Individualism
•
Identity is based in the social system, promoting of the
interests of the entire community.
•
Identity is based in the individual.
•
•
The individual is the ideal.
Belonging to the organization, membership is the ideal.
Direct confrontation is viewed poorly.
•
•
The individualistic negotiator can use a more confrontational
style.
Cooperation is sought among members.
•
Personal goals are more highly prioritized.
End of Document
ONLINE COMMUNICATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER II
COMMUNICATION FOR DE-ESCALATION & DIALOGUE
CHAPTER II COMMUNICATION FOR DE-ESCALATION & DIALOGUE
ONLINE COMMUNICATION
With increasing use of video conferencing applications replacing real meetings, it is important to acknowledge
that effective communication happens differently online than in a real meeting. Although there is a lot of
literature available on the etiquettes of online communication, there are some key points worth condensing
specially in relation to communicating online in dispute situation.
There are some general ‘netiquettes’ when communicating online generally and then there are some special
considerations of communicating in a conflict situation or negotiation. So let us begin from the basic.
It is important to have the right equipment- the right internet connection, camera, microphone and
speakerphone. Test the devices in advance and use the same devices for every meeting to maintain uniformity.
Welcoming the party into the room has become the e-invite of the meeting that you send to the other parties.
When generating an invite for using an online application, a lot of information is provided by the video
conferencing application. Ensure to take only essential information regarding how to join the meeting and use
it for your invitation. Sending people an additional calendar invite with information on how to join the
meeting is also useful. Please ensure to prepare an agenda for the meeting beforehand with the person you are
meeting and include it in the meeting details. If you think the person will need handholding to get online,
either setup a separate orientation session for them to get used to the application or just be flexible. Use a
telephone conferencing facility or use the video calling of online chat applications with which most people are
comfortable.
Where you sit and communicate becomes important. Your background should not be distracting or take away
a person’s attention from the discussion. Having a book case or a plain wall is considered a general norm.
Many people who need to communicate online everyday and regularly are also opting for green screens so
that they can then simply choose a background to appear behind them. That being said, with work from
home becoming common, some distractions are possible and excusable. Being kind to people who are
working with families and children around is in itself a trust building and dispute de-escalating exercise.
Next important but tricky ingredient is eye contact. As human beings we are trained to look at the person we
are speaking to while speaking. However, this works differently online. To make eye contact with your
audience, you should always look at the camera and speak. This helps effective communication online. Also,
since you are basically alone in a room, it is easy to get distracted and look elsewhere while you are talking and
also while the other person is talking. This should be avoided.
There is however a catch, when you look at the camera to communicate, you are basically operating in the
Page 2 of 3
ONLINE COMMUNICATION
blind because you cannot observe the body language of the person when you are speaking and also when he is
speaking. Focus more on the person’s tone of voice and keep switching your eye contact between the camera
and the video of the persons you are addressing. It is doable. Try it. Emphasise more with your facial
expressions when you are speaking. For example, do not forget to smile when speaking generally.
It needs emphasis and hence we repeat- be flexible. Network connectivity is a major barrier to
communication. Maintaining the flow and interest of parties in non-physical communication situations
requires additional effort. If you add network connectivity to the mix, you are left requesting the person to
repeat what they said and this seriously disrupts the flow of sessions and adds to the stress. If at anytime you
feel that technology is coming in the way of effective communication, have a backup mode of communication
ready and switch.
Zoom fatigue is the new brain-strain in communication. For those unfamiliar with the term, it means getting
mentally tired and unable to process information because of doing too many or too long video calls in the
day. To minimise this barrier, keep meetings short with breaks in between if longer conversations cannot be
avoided. Plan what you are going to say in advance and if possible, practice it. Also help the parties plan and
practice their inputs beforehand by making preparation a part of the process design. Speaking short, simple
and effectively helps parties stay focused longer.
To communicate effectively online, trace your steps through the process and innovate as you go along. Ask
yourself questions on how you will be doing something like brainstorming or language translation in multilanguage meetings. There are online tools that allow people to collaborate and brainstorm on ideas. There are
other applications that help with multi-language translation. The key is to imagine much beforehand how
things will go in a meeting and facilitating everything you generally do physically with other hacks and tools.
Let us close this Chapter with the positive words from the Rigveda:
Sam gacchadhvam sam vadadhvam, sam so manamsi janatam samani va akutib, samana bradayani vab samanam astu vo manab yatha vab
susahasati
Translation: Walk together; speak in concord; let our minds apprehend alike, let our efforts be united; let our hearts be in agreement, let our
minds be united, that we may all be happy. —Rigveda
Answers to Case 1 and 2
Case 1: First, they were initially offended by the fact that I was writing in my textbook. The Tibetans didn’t
consider it just an ordinary book. Any book with a picture of a saint or quotes from an ancient textbook is
considered sacred. To write in it is considered very disrespectful. To make matters even worse, I proceeded to
place the book on my chair, near my feet. The foot in Indian and Tibetan culture is considered the dirtiest
part of the human body. To direct the sole of the foot towards someone is considered rude. To place a sacred
book near or next to the feet is a deeply offensive act, and that was what finally made the monks angry
enough to chastise me publicly. I learned a painful lesson from that dinner.
Case 2: Even though the group eventually took the picture after rearranging themselves in ‘proper’ order, the
reasoning has a deep source in culture. Mt. Agung is considered the center of the universe according to the
spiritual philosophy of Bali. Those people who are higher in the hierarchy of status, age or caste should always
be situated closest to the mountain particularly in ceremonial contexts. The foreigner had initially positioned
himself between the king and the mountain by standing on the left. He should have stood to the king’s right
and placed him closest to the mountain.
Page 3 of 3
ONLINE COMMUNICATION
End of Document
CHAPTER III NEGOTIATION—A DOUBLE EDGED SWORD
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER III
NEGOTIATION—A DOUBLE EDGED SWORD
CHAPTER III NEGOTIATION—A DOUBLE EDGED SWORD
Diplomacy is the art of letting someone else have your way
—Daniele Vare, Italian Diplomat
Although we do not notice this, negotiation is becoming one of the most common forms of communication.
We negotiate every day, more often than we think and most of the times, unintentionally. Negotiation is a
basic means of getting what you want from others. It involves securing an agreement between parties with
different needs and goals where each has something to offer to the other and each may benefit from
establishing an agreement, though the balance of power can be dependent upon whether one party’s needs are
significantly greater than the others. It is a process of back-and-forth communication aimed at reaching
agreement with others when some of your interests are shared and some are opposed. Very often, negotiation
is compared to sailing an ancient ship with sails. In between you and your goal lie strong winds, tides, shoals
and reefs as well as squalls and storms. To get where you want to go, you need to zigzag your way to your
destination.
The moment we hear the word ‘negotiation’, we generally imagine a glass conference room with a long table
with serious looking, suited people with longer faces. However, negotiation is not limited to the formal
activity of sitting across the table discussing a contentious issue. It is the informal activity we engage in
whenever we try to get something we want from another person. It may be our parents, spouse, boss,
colleague, friend or the usual clients and business partners.
In a way, negotiation is the pre-eminent form of decision making in personal and professional life. It is a back
and forth communication we engage with a third party to understand what we can get out of a situation or
what we will be required to give up. This shapes our life choices.
Sometimes, even if we are not personally sitting at a negotiation table, our lives are affected by the outcome of
negotiations. When India finalises the nuances of implementation of a nuclear treaty with USA, thousands of
people may get jobs at nuclear facilities, lakhs may get a new electricity connection, crores may get 24x7
electricity supply, fresh opportunities may come up for research and academic facilities specialising in atomic
energy and at the same time, several thousands of people may be displaced in the construction of the nuclear
facilities. All this because Modi and Obama shook hands.
Although negotiation takes place every day, it is not every man’s cup of tea. Standard strategies for negotiation
often leave people dissatisfied, worn out, or alienated and frequently - all three. But in relation to conflict,
negotiation is one of the most effective and one of the most neglected tools of dispute resolution. But in the
present day, everyone wants to participate in decisions that affect them; fewer and fewer people are willing to
accept decisions dictated by someone else. So, it is important for every person to understand the basics of
negotiation.
Page 2 of 2
CHAPTER III NEGOTIATION—A DOUBLE EDGED SWORD
It is not necessary for every person to implement every tip and strategy discussed below. We all have a
different personality and so, to be an effective negotiator, pick and choose the things you can easily
incorporate in your present framework. Once you start implementing the small changes effectively, go for one
big change in your negotiation strategy at a time. Now that you know that negotiation is just another form of
day-to-day communication, use the skills in daily life. It is not necessary that you actually need to be at a
negotiation table to negotiate. At the same time, another word of caution - do not overdo it. Every
conversation is not a negotiation. If you eat antibiotics every time you sneeze, your body will stop responding
to the medication.
End of Document
NEGOTIATION DYNAMICS
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER III
NEGOTIATION—A DOUBLE EDGED SWORD
CHAPTER III NEGOTIATION—A DOUBLE EDGED SWORD
NEGOTIATION DYNAMICS
Power
At the core, every negotiation is a power struggle, no matter how small. Robert Dahl, a leading theorist on
political power, defines power in these terms: “A has power over B to the extent that he can get B to do
something B would not otherwise do.” Power in negotiation may similarly be understood as one side’s
attempt at dominating over the other side’s point of view or position. And, no one ever wants to feel
powerless. Even police hostage negotiators know as a first tactic to create the illusion of power or control in
the mind of the hostage-taker. If he/she feels powerless, the situation could erupt. The same is true in even
more calm surroundings.
It is very important to make the other party believe that they have a say in the matter. That what they are
saying is being truly heard and will be incorporated into the final outcome. It is important to make them feel
that what they want is important and you want to try and get them what they want too.
The word power has had a bad connotation for many years. It has received this reputation because most
people associate the word with one side dominating or overpowering the other. However, if we rephrase what
power means, power is the ability to influence people or situations. After rephrasing, power is neither good
nor bad. It is the abuse of power that is bad.
One another important thing to remember is to always evaluate the power you have as well as the other party
has in a negotiation. There is seldom a negotiation where only one party has the power. Even if things look
bleak, do not lose your cool. Be innovative. There is always some power or key which you hold that can help
you turn the tables. Always remember - if you have power but don’t use it, your power is of no value. It is not
the ship so much as the skillful sailing that assures the prosperous voyage.
In 2014, Facebook acquired WhatsApp for a whooping price of USD 19 BILLION. WhatsApp is one of the
highest downloaded mobile applications globally which delivers extensive mobile messaging capabilities
irrespective of a phone’s OS. This mobile app has reduced the use of phone messaging considerably amongst
its users since the users only pay for mobile data and do not pay per message.
Facebook is an international giant dominating the international social networking market. The acquisition left
various market analysts scratching their heads over the USD 19 billion valuation of WhatsApp. Many market
analysts claim that Facebook wants to monetise the rich personal data of WhatsApp users. Others claim that
this was a strategy to preventing Google from acquiring WhatsApp. There were also reports that Facebook’s
offer to acquire Snapchat, another similar mobile app was rejected.
Page 2 of 11
NEGOTIATION DYNAMICS
But what this acquisition really shows is that WhatsApp knew what Facebook wanted. This was probably
backed by strong research and background check. And finally based on their information, what helped them
strike gold was the fact that they actually had what Facebook was looking for. In a negotiation between
Facebook and WhatsApp most would assume that Facebook would have the upper hand. But this business
negotiation is a striking example which shows that you should never under-estimate what you are contributing
to the deal. Know your worth and bargain for your value.
French and Raven’s Forms of Power
The most common description of power is as propounded by French and Raven (1960). This divides power
into five different forms. Raven (1965) added the sixth form of power i.e. informational power. Use these
categories as a checklist to determine what forms of power you and others have available. It is a common
negotiating mistake to assume you are powerless or have less power than the other person.Coercive power: This
is the power to force someone to do something against their will. It is often physical although other threats
may be used. It is the power of dictators, despots and bullies. Coercion can result in physical harm, although
its principal goal is compliance. Demonstrations of harm are often used to illustrate what will happen if
compliance is not gained.
Coercion is also the ultimate power of all governments. Although it is often seen as negative, it is also used to
keep the peace. Parents coerce young children who know no better. A person holds back their friend who is
about to step out in front of a car.
Other forms of power can also be used in coercive ways, such as when a reward or expertise is withheld or
referent power is used to threaten social exclusion.
Reward power: One of the main reasons we work is for the money we need to conduct our lives. There are
many more forms of reward -- in fact anything we find desirable can be a reward, from a million dollar yacht
to a pat on the back. Reward power is thus the ability to give other people what they want, and hence ask
them to do things for you in exchange. Rewards can also be used to punish, such as when they are withheld.
The promise is essentially the same: do this and you will get that.
Legitimate power: Legitimate power is that which is invested in a role. Kings, policemen and managers all have
legitimate power. The legitimacy may come from a higher power, often one with coercive power. Legitimate
power can often thus be the acceptable face of raw power.
A common trap that people in such roles can fall into is to forget that people are obeying the position, not
them. When they either fall from power or move onto other things, it can be a puzzling surprise that people
who used to fawn at your feet no long do so.
More broadly, legitimate power is based on social rules and can have several different forms and not just be
based on position:
•
Legitimate position power: The social norm of obeying people in a superior position.
•
Legitimate power of reciprocity: The norm that we should repay those who help us.
•
Legitimate power of equity: The norm of fair play and due compensation.
•
Legitimate power of responsibility: The norm of social responsibility in helping others (the ‘power of
the powerless’).
Page 3 of 11
NEGOTIATION DYNAMICS
Referent power: This is the power from another person liking you or wanting to be like you. It is the power of
charisma and fame and is wielded by all celebrities (by definition) as well as more local social leaders. In
wanting to be like these people, we stand near them, hoping some of the charisma will rub off onto us. Those
with referent power can also use it for coercion. One of the things we fear most is social exclusion, and all it
takes is a word from a social leader for us to be shunned by others in the group.
Expert power: When I have the knowledge and skill that someone else requires, then I have Expert power. This
is a very common form of power and is the basis for a very large proportion of human collaboration,
including most companies where the principle of specialisation allows large and complex enterprises to be
undertaken.
Expert power is that which is used by Trades Unions when they encourage their members to strike for better
pay or working conditions. It is also the power of the specialist R&D Engineers when they threaten to leave
unless they get an exorbitant pay rise or a seat by the window.
Informational power: Raven (1965) added a sixth source - informational power. This is providing information to
a person which results in them thinking/acting in a different way. Information by itself may not be enough
for this and may hence be supported by an argument as to why the information should be believed. If the
information is accepted then ‘socially independent change’ occurs as the person continues to believe this
information to be true and acts accordingly.
Source: http://changingminds.org/explanations/power/french_and_raven.html (last accessed in April 2021).
Knowing the following rules of power also comes in handy when entering into a negotiation.
Rule 1: Seldom does one side have all the power. Even the individual who goes to a bank to ask for a loan has
power–the power to decide which bank to apply to, the power to decide an acceptable interest rate, and the
power to decide what to put up as collateral.
Rule 2: Power may be real or apparent. It is not always necessary to actually have power in a negotiation. What is
more important is that the other party must perceive that you have power. As long as you can make the other
person believe that you have power, you have a stand in the negotiation. However, avoid abusing your ability
to create a perception of power. This is unfortunately very common in India. We all may not have count of
the number of times we have heard or ourselves said something in the lines of - “Do you know who my
father/grandfather is?” Always remember that your tactic will someday come back to you.
Rule 3: Power exists only to the point at which it is accepted. For someone to exercise power, it is very important for
someone else to acknowledge that they have power. If you refuse to recognise someone’s power, they will not
hold any power over you. Of course, this may not work in all cases. It may work only in the cases of perceived
power like emotions or hierarchy.
Rule 4: Power relationships can change over time. If you hold power over someone, do not be complacent that you
will always have power over that person. The equations of power are forever changing. It is famously said that
the people you meet on your way to the top are also the people you will meet on your way down. So be
careful in your conduct.
Rule 5: In relationships, the side with the least commitment generally holds the most power. If you are negotiating to buy a
car from a salesman whose boss has warned him that he had better start making sales, and you are not
committed to buying this particular car from this particular dealer, you are in the driver’s seat in the
negotiating process.
Page 4 of 11
NEGOTIATION DYNAMICS
Starbucks splits from Kraft Foods
Background
Starbucks, the world’s largest ‘coffee’ company began in 1971 with a single coffee shop in Seattle, United
States of America. The company’s object was to expand as a roaster and retailer of whole bean and ground
coffee, tea and spices.
Kraft Foods was a huge American conglomerate specialising in the food industry. The group runs the famous
grocery chain under its brand name in the USA.In 1998, Starbucks and Kraft entered into an agreement by
which Kraft had the exclusive right to sell bagged Starbucks coffee in its grocery stores across the country.
The agreement was re-negotiated in 2004 and was set to terminate in 2014. Through the arrangement,
Starbucks’ packaged coffee business grew from $ 50 million to $ 500 million between 1998 and 2010.
However, in August 2010, Starbucks offered Kraft $750 million to terminate the agreement. Kraft disagreed
and initiated arbitration proceedings as provided in the Agreement.
Behind the Scenes
Sales of coffee in single-serve coffee pods was starting to boom at that time. The agreement with Kraft,
however, limited Starbucks to selling pods of a kind that worked only in Kraft’s Tassimo machines. At the
same time, Green Mountain Coffee was almost single-handedly increasing sales in that part of the market with
its Keurig system, which used K-Cup packs, leaving Starbucks in danger of losing momentum in a booming
business.
The parties’ dispute over Starbucks’ termination of their partnership moved to arbitration when the two sides
were unable to settle it on their own. The arbitrator determined that Starbucks had breached its agreement
with Kraft and ordered the coffee-maker to pay the food giant $2.75 billion.
Since it pulled the plug on Kraft, Starbucks has sold more than a billion K-Cup packs, and its market share of
such single-serving pods has grown 18.4 percent.
Lessons Learnt
The business dispute illustrates how the fluid nature of marketplace trends can cause negotiated business
agreements to become undesirable over time. In their original agreement, Kraft and Starbucks would have
been wise to agree upon set times for re-negotiation, during which they would have had leeway to revisit
existing deal terms in the face of changed economic and industry conditions. They could also have negotiated
conditions for ending the agreement early, such as cancellation penalties and other forms of compensation.
Hierarchy
Status, prestige, esteem, honor, respect, and rank are distributed differentially in all known groups. All human
groups have social hierarchies, whether formal, as in the military or in business settings, or informal, as in
cliques or other casual social groups. Rank ordering occurs at a very early stage of social interaction.
Hierarchy-related behavior has been shown to emerge in early childhood and to increase in periods of group
formation and transition. A person’s position in the hierarchy affects how that person is treated as well as
how the person treats others. People in subordinate positions typically display deferential behavior; their body
posture is bent rather than erect, their voices are typically soft rather than loud, and they show more frequent
smiling. People in super-ordinate positions in social hierarchies are more likely to stand at full height facing
the group, to look directly at others rather than averting their gaze, and to gesture by pointing to others. Social
Page 5 of 11
NEGOTIATION DYNAMICS
hierarchies are not unique to humans. Since the discovery of the pecking order among hens, the status
hierarchy has been considered one of the main forms of social organisation in animals. Indeed, status
hierarchies are ubiquitous among the closest primate relatives of humans, the chimpanzee. Social hierarchies
have also been studied in many other species, such as, for example, in macaque monkeys and domestic goats
and in many insect and fish species. Among crickets, a cricket that loses fights subsequently becomes
submissive and avoids confrontation in the future. Among crayfish, more than one male cannot inhabit the
same territory without determining who has higher rank. The crayfish that emerges as the victor in physical
contests controls the territory, while the loser slinks away to the periphery and avoids further contact with the
dominant male.
Despite the importance of social hierarchies, relatively little research has been conducted to identify the tactics
that humans use to negotiate hierarchies and further, the importance of hierarchy in a negotiation. Hierarchy
specially plays an important role in many Asian countries like India, China and Japan. In business negotiations
in India, generally government authorities with sanctioning power are known to exercise a lot of sway over
the mediation process. This is seen specially in the sectors such as mining and power generation. Use of
hierarchy to gain an upper hand in the negotiation process is a strategy as old as civilisation itself.
The Head of Barbarika
One of the examples of use of hierarchy in negotiation in India is the story of Barbarika who is also
worshipped as KhatuShyamji in Rajasthan. Barbarika was one of the heroes of Mahabharata who never got his
due in history. The people who know this character know that he could have been the best warrior in the
great war of Kurukshetra. Unfortunately, he did not get the chance to prove this point.
Barbarika, who earned an exceptional skill to destroy the complete army in just one shot of an arrow, once
demonstrated the same to Krishna. Krishna asked Barbarika to pierce all the leaves of a ‘Peepal’ tree. While
Barbarika was chanting the mantra just before releasing the arrow, Krishna took one leaf of the tree and hid it
under his foot. Barbarika released the arrow and it did what it meant, after piercing all the leaves it started
revolving around Krishna’s feet. The demonstration of this skill surprised everyone who witnessed. Barbarika
claimed that he could finish the war in just few hours. The interesting part of the story was Barbarika’s pledge
to fight always from losing side. Krishna knew that this warrior had the capacity to diminish any side, and so
the other side will always be the losing one. And if Barbarika changes sides, he will kill everyone in both sides
of the war.
Krishna was troubled by this turn of events for several reasons. The Kurukshetra war was important to
complete the cycle of curses (e.g. Karna was cursed by Parashurama that he would forget the art of war at the
time he needed it the most) and blessings that the warriors on both sides had received. If these were not
completed, the warriors would be trapped in a cycle of re-births to give effect to blessings and curses. Second,
Barbarika was destined to fight for the losing side and if he used his arrows for the Pandavas, he would be
obliged to shift loyalties to the Kauravas and in turn, would destroy the Pandavas. Third, without a war,
establishing dharma and the prowess of the Pandavas would not be possible.
Aware of the consequences if Barbarika participated in the war, he asked Barbarika, “Whom do you consider
your guru?” Barbarika replied that all the skills he learned were always keeping only Lord Krishna in his mind,
so he, Lord Krishna, is his prime guru.At this, Krishna told Barbarika that he was entitled for gurudakshina
(fee or gift asked by teachers for their teachings) and asked Barbarika’s head in the gurudakshina. Barbarika
took no time to cut his head and give it to Krishna on his own and in return Krishna granted him a wish to
live till battle of Mahabharata ends and watch the same from a nearby mountain.
Krishna used two important negotiation tools in this story. First, Krishna had important background
information regarding the other party. Lord Krishna knew that Barbarika considered him his Guru and hence,
Page 6 of 11
NEGOTIATION DYNAMICS
he was able to strategise his demands in the negotiation accordingly. Next, Lord Krishna played his hierarchy
of being the guru of Barbarika to negotiate a deal with Barbarika and granted him his one weakness as a
warrior in return. Barbarika as a true Kshatriya (Warrior community) had a fervent wish to witness the epic war
of Kurukshetra and so, even after losing his head and consequently his life, Lord Krishna granted him the
boon that his head would be able to witness the war of Kurukshetra and that he would die only once the war
was over.
Hierarchy itself may be categorised as follows:
Domestic
During our childhood our parents are in charge. Although children
have a lot of say in their life now-a-days, mostly, children in India are
generally seen and not heard. Parents provide for us financially and also
have a physical advantage over us at least for some time. Even though
we ‘stand-up’ and go against them many times, it feels convenient and
safe to go back into their protection as we have been doing since very
early childhood where we instinctively clung to our mothers for safety.
Our parents cater to our psychological need of a sense of control and a
sense of identity. In return, they expect our obedience and respect.
Even after we grow up, and almost throughout our lives, our parents
have a unique sway over our actions and thoughts. Parents may be
friends and advisors or tough dictators depending on the culture.
Matriarchs and patriarchs in the business structure are also a regular
feature across the globe.
Specially in India, parents or more specifically ‘elders’, often have the
advantage of hierarchy in the process of negotiation.
Professional
Managers have the power vested in their position to tell their
subordinates what to do. They allocate work to people and, possibly as
a negotiating ploy, may offer more desirable work to those who play
the game.
Managers also make decisions about pay and promotion. If they like
you, then you can climb the hierarchy. If they do not, then your career
may be seriously limited. This power can reach beyond the company as
they may give bad references to people who leave under a cloud of
some sort.
Hence, a boss or a prospective employer tends to have certain leverage
in the negotiation process.
At the same time, workers also have power. First, they have the power
of expertise, of being able to do the job. They then have the power of
their two feet: they are not captives and may leave at any time (although
personal financial circumstances may make this difficult). Workers also
have the power of the collective, and may negotiate, not as individuals,
but in the form of industrial relations negotiations, as done by trade
unions.
Another form of power that is often forgotten is how bosses are
human and want to be liked. A part of the reason that people want
promotion is so others will look up to them and hence support their
identity needs. A little flattery goes a long way and being nice to your
manager builds social capital that can be of significant weight in
individual negotiations.
Page 7 of 11
NEGOTIATION DYNAMICS
Social
We often replicate the hierarchies that we learn at our parent’s knees in
social relationships. Although we may discuss and debate heatedly,
hierarchies work because they make us feel comfortable and they are a
mechanism that most people respect.
Sub-consciously, every time we meet someone new, one of the first
things we try to find out by asking questionsSocialis whether this new
person is superior or inferior to us. When we form teams and social
groups, one of the first things we negotiate is about who gets to be the
leader and how the pecking order is going to work. Although this
sounds childish, it is important because if every command or request is
opposed, debated or negotiated, then things will move very slowly.
Social negotiations often require a network of ideas. If you wish
substantial change you need to generate a wave of opinion. This
involves selling your ideas to as many people as possible. This typically
requires a lot of manpower and time. Social power also lies with leaders
whose opinion in a matter is valued and to whom many other people
will listen and accept new ideas if propagated by them. Hence, social
negotiation can be made more effective if you can reach these people
of influence and public voice and get them to spread your ideas among
your target audience.
Regardless of radical reforms, one of the factors which influences
negotiations in India is the caste, religion and the State or community
to which the person belongs. Funnily enough, many Indians tend to be
captivated with foreigners and give them more leeway in negotiations
than they would to Indians. Same thing goes for Non-Resident Indians
(Popularly known by their acronym ‘NRI’).
Leverage
The term ‘leverage’ refers to the principle of using a small advantage (or in negotiating terms, even a perceived
advantage) to gain a much larger benefit. The ancient Greek scientist Archimedes said in 230 BC: “Give me a
lever long enough and a place to stand, and I will move the world.” Picture a person standing on the ground
trying to move a large boulder. By placing a pivot such as a stone between the person and the boulder and
inserting a long stick (the lever) over the stone and under the boulder in the correct position, the power of the
person to move the boulder increases geometrically. That person is then using leverage to achieve the result.
Leverage works similarly in negotiation.
Leverage goes hand in hand with power. When you have power, you have leverage. Leverage, however, can
be more temporal and fleeting. It often moves back and forth in the course of a negotiation and can change
from issue to issue. In a labor negotiation, there’s typically a balance of leverage overall. In fact, in most
negotiations, there is a balance of leverage. But if, for example, you are in an affluent area trying to buy a
luxury car that is in short supply, you will discover what it feels like to have no leverage at all. Thus, leverage is
a wonderful thing to have. In most people’s lives, there are only a few times when they actually have leverage.
In the study of negotiation, leverage means the ability to influence the other side to shift closer to your own
negotiating position. Many negotiators argue that leverage is nothing more than a belief. They compare it to a
trick of smoke and mirrors. It is also warned that seeing leverage as an ability may lead to ruination and failure
at the negotiating table.
It can also become our disability. When we believe that we have the most powerful offer, we become blinded
by our belief and fail to see what the other side’s vision is. We make sweeping assumptions about what we
think the other party wants or needs based on what we think is our leverage, without going through a open-
Page 8 of 11
NEGOTIATION DYNAMICS
minded, calm-emotion, step-by-step discovery process before and during the process of negotiation. It is
important for us to never forget that we cannot know what will influence the other side until we have done
exhaustive and impeccable research and obtained first-hand information by questioning them at the
negotiation table to reveal their needs, problems, pain, business objectives and wants.
The delivery of leverage can also be in the form of a threat. Often negotiators assume that if their offer is not
accepted the other side will be ruined. This line of thinking is exactly what got the US government in trouble
in situations like Cuba and Iran. Having more muscle in international politics did not help the US government
influence the political outcome in Iran or Cuba.
So, do not let your leverage become your baggage that you bring to the negotiation. It will cause you to ask
the wrong questions or not listen to what is really being said by the other party. Do not use the leverage that
you think you have as an excuse for laziness or procrastination in a negotiation.
The Painting and the Booklet
There is a story in classic power theory about Joseph Duveen, a 1920s art dealer who wanted to negotiate with
U.S. automaker Henry Ford to purchase the world’s greatest art collection. But Duveen did not do his
homework. He did not know that Ford, although quite wealthy, had modest tastes. In the end, Ford did not
want to buy any of the valuable paintings, but he was taken by the colorful art reproductions booklet Duveen
had presented at the negotiation. Duveen ultimately gave Ford the art book and walked away from the
negotiation empty-handed.
The lesson is: Think strategically and analytically, not instinctively.
Source: http://india.forbes.com/article/thunderbird/nine-secrets-ofnegotiation-power/32176/0 (last accessed on 28 March
2015).
Ego
In a 1946 essay, ‘Why I Write,’ journalist and author George Orwell pointed to ‘sheer egoism’ as the top
motive for writing. He characteristically used blunt, vivid language to hammer home his point: “Desire to
seem clever, to be talked about, to be remembered after death, to get your own back on grownups who
snubbed you in childhood, etc., etc.,” he wrote. “It is humbug to pretend that this is not a motive, and a strong
one.” Orwell noted that writers share egoism with the ‘top crust of humanity,’ such as scientists, artists,
lawyers and successful businessmen.
Ego also drives many negotiations and lies at the heart of many disputes. Negotiators of all shapes, and sizes,
and levels of sophistication have enormous amounts of ego invested in their proposals, their view of beauty.
It is, after all, ‘my’ proposal, ‘my’ language that ‘I’ wrote, ‘my’ organisation, ‘my’ building, ‘my’ house. Also,
people like winning, however they might define it. To lose is a blow to the ego, and no one wants that.
Negotiations grow more difficult the more the negotiators are wed to their proposals, to their way of seeing
the world and to their perception.
The Story of Five Villages
In the epic Mahabharat, the Pandavas lost a game of dice against the Kauravas and lost their wealth and
kingdom. They were condemned to twelve years of exile into forests, and a thirteenth year to be spent
incognito, and if the cover was blown during the thirteenth year, another cycle of thirteen years would ensue.
Upon completion of the terms of the bet, the Pandavas returned and demanded their kingdom to be rightfully
returned to them. Duryodhana refused to turn Indraprastha over. For the sake of peace, and to avert a
disastrous war, Krishna proposed that if Hastinapura agreed to give the Pandavas only five villages, they
Page 9 of 11
NEGOTIATION DYNAMICS
would be satisfied and would make no more demands. However, Duryodhan’s ego intervened. He
vehemently refused, commenting that he would not part with land of even as much as the point of a needle.
His ego was the cause of the Kurukshetra war and consequently his downfall. The Pandavas won the
Kurukshetra war and took over both the Kaurava kingdom of Hastinapur and the rightful Pandava kingdom
of Indraprastha. Had Duryodhan agreed to part with a paltry bargain of five villages, he would have reigned
supreme for the rest of his life.
In any negotiation, the person with the smallest (or the largest) ego wins. In other words, those who are
comfortable enough checking all that baggage at the door will ultimately prevail because they will be able to
see through the haze of ego to the merits of the various proposals, regardless of where they originated.
Sometimes in negotiations, one side makes demands of the other as a sort of test, to try to exercise some
leverage. They might insist, for example, that they meet only at a location that they choose. The egoists among
us would bristle and insist on meeting at a place of their choosing. The best negotiators however do not care
where they meet or whose proposal is discussed. Their interest is in getting a deal, and they do.
Instead of focusing on massaging your ego, it always better to have a goal oriented approach. The negotiator
should try to keep the discussion result oriented. Keeping the focus of the negotiation solely on results and
what would make the best long-term deal for both parties is important to make the negotiation effective. By
taking the emphasis off the people involved and keeping it on the facts, the negotiation is less likely to
become hostile. While it is easy to take things personally, it is important that you do not confuse ‘yourself’
with the ‘issue’ being discussed.
Saving Face
The term face is multi-faceted and is inextricably linked to the relevance of honour and humiliation in a
particular culture. The importance given to saving face depends on the society or culture with which one is
dealing in a negotiation. Sometimes, there may be persons from more than one culture involved, having
different views on saving face. Face is understood as the image one projects of oneself or one’s national image
in a public forum. As Brown1. understood the issue:
Among the most troublesome kinds of problems that arise in negotiation are the intangible issues related to loss of face. In some instances,
protecting against loss of face becomes so central an issue that it swamps the importance of the tangible issues at stake and generates intense
conflicts that can impede progress toward agreement and increase substantially the costs of conflict resolution.
Also tied up in ego and power and leverage is the concept or saving face. No one wants to be taken advantage
of. Face saving (or saving face) refers to maintaining a good self image. People who are involved in a conflict
and secretly know they are wrong will often not admit that they are wrong because they do not want to admit
they made a mistake. They therefore continue the conflict, just to avoid the embarrassment of looking bad.
To avoid this problem, it is important to allow one’s opponents to make concessions gracefully, without
having to admit that they made a mistake or backed down. Often a simple change in wording or an exchange
of concessions will help negotiators maintain a positive image, even when they are actually giving in very
substantially.
At the end of the day, both parties must be able to save face. The more high-profile the dispute, the harder
this is, which is one reason why mediators attempt to institute ‘media blackouts’ in very public cases. The
greatest decisions are made when no more than two people are in a room. Even mediators must sometimes
clear out and let the parties talk directly to one another, because they have been busy posturing for the
mediator as well. They need to save face even with the mediator.
As a negotiator, it is very easy to become caught up in your own point of view and to grow increasingly averse
to the point of view of your counterpart. This is natural-you are an advocate after all. In difficult or prolonged
Page 10 of 11
NEGOTIATION DYNAMICS
negotiations where personalities clash, it is easy for each negotiator to want unconditional surrender from the
other. However, the best negotiators understand that it is their job to make sure their counterpart saves face.
You need to give your counterpart a ‘back door,’ a way out, a way to claim even partial victory. If you do, it
makes it easier to reach a deal on your terms, which, presumably, is your goal.
Face Saving in Different Cultures
One of the Western countries where face matters is France. Negotiation is avoided in France. They have very
little faith in negotiation and compromise. In their opinion, compromise tends to lead to loss of status and
power. The French believe that in a negotiation, their own prestige and status shall be constantly at stake.
They try to protect their self-prestige by avoiding discussion, taking a conflicting stand on grounds of
principle or concessions. Maintaining national honour is given great importance. However, unlike highcontext societies, if one fails to reach an agreement, the failure does not cause loss of face. On the contrary,
granting unnecessary concessions to the other party is considered a cause for concern about national face.
Similarly, compromise was considered a quality of the weak in the former Soviet Union. They believe that a
person who is strong and has self-esteem will choose a confrontational strategy. Compromisingis alright only
if it could be proven that the negotiator had struggled very hard. However, Russians seem to be a median
between the France and U.S. when it comes to importance of face and related negotiating styles. Russians
prefer some progress as against abandoning the negotiation process completely. However, they still prefer to
take the negotiation forward preferably by getting the other side to make the first concession. While
negotiating, they portray each of their own concessions like a mammoth burden and so increase the
appearance of their benevolence to the other negotiating group and third parties.
The use of a third party negotiator was a key tool used by Egypt in 1978 while achieving the Camp David
Accords. Shuttle diplomacy, a common way of negotiating in the Middle East, allowed Egypt to make
concessions to and for the U.S. that Egypt could not have made directly to Israel without severely losing
national face. The main hidden issue which had to be discovered at Camp David for coming to an agreement
was discovering that Egypt could not make concessions directly without losing face. The war of 1967 had left
Egypt sorely humiliated. Egypt’s attempt to regain Sinai was about restoring lost face and Israel’s need was for
security. The final solution was a demilitarised Egyptian Sinai which met the needs and interests of both
Egypt and Israel.
The Chinese term lian represents the Chinese concept of saving face. Lian represents the society’s confidence
in the veracity of moral character. According to the Chinese, a person loses face when he fails to meet the
requirements of his position in the society. The Chinese conflict resolution process lays great emphasis on
each disputing party to care about the disputant’s face. To save face in many cases, a mediator is appointed to
manage communication between the disputants similar to the Middle East culture.
For the Chinese, maintaining face, your own as well as of others is important to be regarded as a moral
member of society. The Confucian Chinese lay great store by creating and perpetuating group harmony.
Gaining face is as important as losing face. Many Asian cultures aim at not only saving face but increasing the
value of one’s face or standing in society.
Being Right
In a ‘competitive’ (win-lose) based approach to negotiations, the parties and their lawyers negotiate by trying
to pressure the other side to cave-in to their demands and by sticking to high-end, firm positions - “I’m right,
you’re wrong. I win, you lose.” Although this approach may work well in other situations (I’m bigger and
stronger than you, so give me the TV remote), a ‘competitive’ approach often does not work in the world of
legal disputes.
Page 11 of 11
NEGOTIATION DYNAMICS
In fact, you must allow people to be right because it consoles them for not being anything else. There is no
virus more dangerous, more damaging to decorum and peaceful negotiations in our society than the human
need to be unassailably, unequivocally, 100% right all the time. Forget food, forget water, forget love, at the
top of Maslow’s Hierarchy of Needs should be the persistent human need to be right. The sad truth is that in
negotiations being right all the time does not matter. No points are awarded for being right. Learn this and
the rest is easy.
In a negotiation, what is ‘right’ is what the parties agree to. What is ‘wrong’ are all those issues that keep them
apart. No points are awarded at the end for being right. Every time you negotiate effectively for both parties
to agree to a solution to a certain issue, you score a point.
1.
Bert Brown, “Face-Saving and Face-Restoration in Negotiation” in Daniel Druckman, Negotiations: Social-Psychological Perspectives,
Sage Publications, 1977, p 275.
End of Document
THE NEUROSCIENCE BEHIND NEGOTIATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER III
NEGOTIATION—A DOUBLE EDGED SWORD
CHAPTER III NEGOTIATION—A DOUBLE EDGED SWORD
THE NEUROSCIENCE BEHIND NEGOTIATION
Neuroscience, while exciting, is still in its early stages of development. Neuro-imaging holds the promise,
however, of allowing unprecedented access to the mechanisms of the brain as it makes decisions. We are
finally able to advance our understanding of just what is happening in the brain during negotiation and
mediation, not by words but with pictures. A functional MRI can show the location, intensity, duration and
strength of the response to stimuli. But scientists know that this science is still in its infancy and the outcomes
depend on what the experimenter does. At most, the technology can only confirm and strengthen what has
already been developed on a functional level.
The strides in neuroscience have also had a deep impact on how we look at disputes and decision making
involved in resolving a dispute. For example, in 1995 neuroscientist Antonio Damasio outlined a groundbreaking discovery in Descartes’ Error: Emotion, Reason and the Human Brain. He studied people with damage in
that part of the brain where emotions are generated. He found that they seemed normal, except that they were
not able to feel emotions. But they all had something peculiar in common: they also couldn’t make decisions.
They could describe what they should be doing in logical terms, yet they found it very difficult to make even
simple decisions. This means that even when we believe we are motivated by logic, the act of making a
decision is based on emotion. Damasio’s discovery has had a profound impact on those who are involved in
the negotiation and mediation processes.
Also, neuroscience has uniform universal applicability. Although neuroscience can’t be divorced from culture,
history, and geography, there is no Orientalism of the brain. The fundamental biology of social motivations is
the same in Bhatinda, Berlin, Bangkok and Boston. It anticipates, for instance, how the mind’s natural instinct
to reject perceived unfairness can impede similarly innate desires for accommodation, and how fairness can
lead to tragedy. It tells us that genuinely conciliatory gestures are more likely and natural than many believe,
and how to make our own conciliatory gestures more effective.
Some of the human behavior rules proved via neuroscience to effect negotiation to a great extent are as
follows:
1. Humans can unknowingly pay a high cost to avoid unfairness: More than three decades of lab experiments show
that humans are prepared to reject unfairness even at substantial cost. This is based in our biology: a decade
of studies using brain imaging shows that human neural activity, particularly in the insula cortex region,
reflects the precise degree of unfairness in social interactions.
In a classic example known as the ultimatum game, one individual gets an amount of money (e.g. INR 100)
and proposes a split with a second player (e.g. INR 80 for herself, INR 20 for the second person). The other
Page 2 of 4
THE NEUROSCIENCE BEHIND NEGOTIATION
individual then decides whether to accept the offer (in which case both get the split as proposed) or reject the
offer (in which case both players get nothing). Despite receiving an offer of free money, the second player
rejects offers involving less than 25 percent of the money around half the time. In essence, unfairness has a
negative value that outweighs the positive value of the money they would otherwise receive.
Even non-human primates show evidence of hard-wiring to reject unfairness. In one famous study, two
capuchin monkeys were instructed to carry out the same task, but one was repeatedly rewarded with sweet red
grapes while the other received cucumbers. In response to such blatant unfairness, the cucumber-fed monkey
threw a conniption fit.
In one case, a U.S. firm negotiated for two years with a major Japanese company to create a large scale joint
venture under Japanese control. During this excruciatingly detailed process, the negotiations were halted
several times due to what the Japanese team described as a break-down in its consensus process. Each time,
however, the Japanese company resumed negotiations with a stronger consensus on the central role of the
deal to its long-term global strategy.
When a European firm unexpectedly made a tender offer for the entire U.S. business, the Japanese company
had to decide whether to drop out of the process or seek to acquire the whole firm. After years of
negotiations and mentally integrating the U.S. operations into its long-term strategy during its exhaustive
consensus process, the Japanese company had essentially fallen in love with its target. Rather than face the
internal organisational costs of ‘losing,’ it was willing to pay an extraordinarily high price for the U.S. firm, far
more than it would have paid had it not been part of the frustratingly long consensus process.
2. Our perception of fairness is highly subjective: Neuroscience also affirms that perceptions of fairness are highly
subjective. We can illustrate this using the ultimatum game described above, where one individual gets an
endowment (e.g. INR 100) and proposes an offer (e.g. INR 80 to INR 20 split) that the other individual
accepts or rejects.
One study, for example, manipulated individuals’ subjective judgment of what constituted a fair enough offer
by making participants first take a short quiz to “earn” the endowment. After receiving the money in this way,
they went on to make more low offers than usual in the ultimatum game. The subjects may have felt these
lower offers were only fair, since they had worked to earn the cash, but this view wasn’t shared by the second
party, who as normal rejected the low offers, leaving both sides with nothing.
Mutually incompatible judgments of fairness, in other words, made both players worse off. Also, brain
imaging shows that the subjective experience of fairness, which can lead to such mutually incompatible
judgments, is encoded in individuals’ brain activity.
Why does the inherent subjectivity of fairness matter? It speaks to the kind of tragedy the German
philosopher Georg Hegel identified in the epic tales of ancient Greece - one arising because each side in a
conflict firmly believes its position to be just.4.
The Hegelian Tragedy
George Wilhelm Friedrich Hegel (1770-1831), the immensely influential German philosopher, in his work
Aesthetik (1820-29) had a very interesting take on how the human mind thinks in the context of tragedy in
Greek mythology. According to Hegel, in classical Greek tragedy the characters are often moved to act
because of an ethical interest or ‘pathos’, a concern for the family or for the State. Greek tragic heroes and
heroines are moved to act by the ethical (or otherwise justified) interest with which they identify, but they act
freely in pursuit of that interest. Tragedy shows how such free action leads to conflict and then to the violent
(or sometimes peaceful) resolution of that conflict. At the close of the drama, Hegel maintains, we are
Page 3 of 4
THE NEUROSCIENCE BEHIND NEGOTIATION
shattered by the fate of the characters (at least when the resolution is violent). Yet, we are also satisfied by the
outcome, because we see that justice has been done. Individuals, whose interests such as the family and the
State should be in harmony with one another, set those interests in opposition to one another. In doing so,
however, they destroy themselves and thereby undo the very opposition they set up. In the self-destruction of
such ‘one-sidedly’ ethical characters, Hegel believes, we, the audience, see the work of ‘eternal justice’. This
reconciles us to the fate of the characters and so provides the sense of ‘reconciliation which art should never
lack’.
In modern tragedy, by which Hegel means above all Shakespearean tragedy, characters are moved not by an
ethical interest, but by a subjective passion, such as ambition or jealousy. These characters, however, still act
freely and destroy themselves through the free pursuitof their passion. Tragic individuals, therefore - whether
ancient or modern - are not brought down by fate but are ultimately responsible for their own demise.
3. Accommodation and conciliatory gestures are natural: While fairness may drive discord, it’s not necessarily our
nature to punish unfairness and continue in perpetual conflict until the other side capitulates. Instead,
experiments show that humans aren’t purely competitive or self-interested, but rather are also driven to
cooperate.
The neural mechanisms that initiate and sustain cooperation appear in many brain-imaging studies, and
involve the anterior insula cortex, a brain region that processes emotion and social norms. In one ‘trust game,’
the first player is given an amount of money (e.g. INR 200) each round and can invest any portion of it (e.g.
INR 100) with the second player. Then the investment triples, and the second player decides how much of
the money to repay (e.g. returning INR 100 and keeping INR 200). Cooperation, in which higher amounts are
invested and then paid back, benefits both sides but carries the risk of exploitation.
When pairs play over the course of several rounds, we see how humans maintain and repair breakdowns in
cooperation. When collaboration falters and investments are low, individuals often build cooperation by
making unilateral conciliatory gestures in the form of high repayments - despite the risk that these generous
overtures will simply be pocketed and not reciprocated. Humans use such cooperative gestures as a tool to
manage the critical balance between self-interest and cooperation.
4. Unexpected conciliatory gestures are more effective: The neural mechanisms behind conciliatory gestures offer clues
to render them more effective. Why? The more surprising a reward or punishment is, the bigger the event’s
impact is on our decision-making. According to dozens of imaging experiments, the brain has sophisticated
machinery to compute the crucial difference between what is expected to happen and what actually happens.5.
For example, it is reported that when Donald Trump decides he wants to takeover someone’s business, he
apparently stuffs a few tricks up his sleeve before negotiation time. First, he will have his staffers warn you
that he is very busy and probably will not be able to stay long and will not shake your hand (the staff will tell
you that he just does not do that). Then when Trump enters the room, you are instantly charmed over by his
warm handshake, extensive 40 minute chat about business and glossed-over terms of sale. You walk out
feeling quite good about yourself, says a CBS source. In reality, you were duped into thinking completely
normal negotiation courtesies were really flattering, undeniably giving Trump the upper hand.
5. People will do what you tell them not to do: People who feel their sense of control is being taken away from them
will grab it back by not doing what they are asked. This can even be actions that are clearly against their best
interests. According to Brehm and Brehm (1981) who first propounded this theory, there are four elements
that are fundamental to this reactance theory: freedom, threat to freedom, reactance, and restoration of
freedom. Individuals must perceive a concrete sense of freedom and have knowledge of it in order for
reactance to occur; that is, the notion of freedom cannot be abstract. Threats to freedom can originate from a
more powerful social agent through threats of punishment or loss of reward or from someone of lower status
Page 4 of 4
THE NEUROSCIENCE BEHIND NEGOTIATION
through an irreversible act that eliminates materials necessary for freedom. Once a threat is present, some
attempt to restore the threatened or lost freedom is made. The success of social animals like human beings
rests precisely on managing this delicate trade-off between conflict and collaboration, a task for which we
possess such exquisite neural machinery.
A classic example of this is found in the Bugs Bunny Looney Tunes cartoons where often the characters were
shown a big, red button with a sign which says “Don’t Push this Button”. The characters would invariably
end up pushing the button just because it says otherwise. Funnily enough, this experiment has also been
proved many times in real life psychological experiments.
While participating in negotiations, always remember that if you make the other party feel you are being
unjust or that you are restricting their options or disallowing them something, they will bounce back and
defend their demands harder than they generally would.
4.
Nicholas
Wright
and
Karim
Sadjadpour,
“The
Neuroscience
Guide
to
Negotiations
with
Iran”,
http://www.theatlantic.com/international/archive/2014/01/theneuroscience-guide-to-negotiations-with-iran/282963/ (last accessed
on 6 March 2015).
5.
Nicholas
Wright
and
Karim
Sadjadpour,
“The
Neuroscience
Guide
to
Negotiations
with
Iran”,
http://www.theatlantic.com/international/archive/2014/01/theneuroscience-guide-to-negotiations-with-iran/282963/ (last accessed
on 6 March 2015).
End of Document
NEGOTIATION ‘JUJITSU’
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER III
NEGOTIATION—A DOUBLE EDGED SWORD
CHAPTER III NEGOTIATION—A DOUBLE EDGED SWORD
NEGOTIATION ‘JUJITSU’
We tend to have a knee-jerk reaction of either offence or defence when someone criticises our actions or
ideas. In a negotiation, when a party announces a firm position which is not in your favour, you may be
tempted to reject it outright. If the other side criticises our proposal, we tend to defend it. In short, if they
push you hard, you will tend to push back.
Yet if you do, you will end up playing the positional bargaining game. Rejecting their position only locks them
in. Defending your proposal only locks you in. And defending yourself sidetracks the negotiation into a clash
of personalities. You will find yourself in a vicious cycle of attack and defense, and you will waste a lot of time
and energy in useless pushing and pulling.
How can you prevent the cycle of action and reaction? Do not react. When they assert their positions, do not
reject them. When they attack your ideas, don’t defend them. When they attack you, don’t counter-attack.
Break the vicious cycle by refusing to react. Instead of pushing back, sidestep their attack and deflect it against
the problem. As in the Oriental martial arts of judo and jujitsu, avoid pitting your strength against theirs
directly; instead, use your skill to step aside and turn their strength to your ends. Rather than resisting their
force, channel it into exploring interests, inventing options for mutual gain, and searching for independent
standards.
Rely on Newton’s third law of motion - “For every action, there is an equal and opposite reaction.” If they
shout, become calmer, if they criticise your proposal, seek their guidance and ask them what they would have
done in your position.
Tail Throne
Hanuman, the monkey-god, is much adored by people for his strength that is combined with simplicity. In
the Indian epic Ramayana, the King of Lanka, Ravana abducted Sita, the wife of Rama, the exiled king of
Ayodhya.
When Hanuman made his leap across the sea to the island-kingdom of Lanka in search of Ram’s wife, Sita, he
allowed himself to be caught by Ravan’s guards so that he could meet Ravan in person and deliver a message.
“I am a messenger,” he told Ravan, “Treat me as a messenger. Give me a seat to sit.”Ravan laughed and his
guards mocked the audacious monkey. “Sit on your tail if you are so desperate to sit!” they shouted.
In response Hanuman elongated his tail, then coiled it around to create a column, and jumped on top of it.
Hanuman thus created a seat that towered over Ravana’s. He who always sat at Ram’s feet went out of his
Page 2 of 2
NEGOTIATION ‘JUJITSU’
way to sit on top of Ravana’s head. He conveyed Ram’s message to Ravana that Rama is willing to forgive
him if he returns Sita with honour.Although the negotiation between Ravana and Hanuman failed and finally
led to war, the tactics of Hanuman shows a calm way of dealing with offensive actions in negotiation.
End of Document
ROLE OF LAWYERS IN NEGOTIATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER III
NEGOTIATION—A DOUBLE EDGED SWORD
CHAPTER III NEGOTIATION—A DOUBLE EDGED SWORD
ROLE OF LAWYERS IN NEGOTIATION
In many business deals, the clients negotiate between themselves, decide on the essential terms of the deal,
and then turn the details over to the lawyers. In these situations, the lawyer’s role is to anticipate failure points
and document what will happen in the worst case situations. Typically, one side will be looking to restrict the
consequences of failure, while the other side will be looking to expand the consequences of failure.
For example, in a loan negotiation, the lender will want as much collateral and limiting conditions as it can
reasonably obtain to protect against non-payment in the event of default. The borrower would ideally like a
non-recourse unsecured promissory note that results in no liability in the event of default. The negotiation
between the lender and the borrower might be quite brief, while the negotiation between the lawyers over
what rights and obligations will be created in the loan documents could be very lengthy.
Despite high-minded talk from Bar leaders and academicians, the economic realities of legal practice have
pushed client results to the forefront, resulting in an ideology and ethos centered on a lawyer’s total
commitment to the client. In fact, many lawyers have become overly client-centric and now believe that
loyalty to their clients is their ‘first and only’ responsibility. This belief causes problems that play out again and
again in the legal profession. The tension between a commitment to the client and a commitment to broader
interests in justice often comes to a head in the negotiation realm where issues of honesty come to the fore.
Most attorney negotiation ethics problems stem from a conflict between the lawyer’s obligation to the client
and the honorable treatment of other negotiators. When lawyers negotiate, they rely on their values and
beliefs about lawyering and the lawyer’s role in the negotiation process to make both conscious and
unconscious strategy choices and moves. These views are shaped by two core tenets, also known as the
lawyer’s standard philosophical map: first, that disputants (including negotiation counterparts) are adversaries
where if one wins, the other must lose; second, that disputes are resolved only through the application of law,
so that a projected positive trial outcome provides bargaining leverage in a negotiation. As a result, lawyers
tend to follow specific bargaining norms that resemble a form of advocacy - playing to win (or to not lose),
sharing as little information as possible, and continuously demonstrating the strength of their positions.
Clients often complain that lawyers tank deals. There is a certain amount of truth in this complaint because
the negotiation between the lawyers can become so competitive that they are unable to agree or compromise
on sticking points. When you are negotiating the details on behalf of a client, it becomes important to have
constant communication with your client.
Although you might be the expert in secured transactions, for example, you need to explain the risks and
problems to your client so that you work as a team in deciding what is important and what can be conceded.
Page 2 of 2
ROLE OF LAWYERS IN NEGOTIATION
The other aspect of negotiation is settling conflicts, especially lawsuits. Very few civil cases go to trial. The
only civil trial lawyers that really gain significant trial experience are insurance defense lawyers. Even then,
with rare exceptions, a defense lawyer might only try three or four cases a year. For plaintiffs’ personal-injury
lawyers, trying cases is unprofitable. Thus, the vast majority of personal-injury cases settle. The same is true in
other types of civil litigation. Business cases almost always settle, although there are notable exceptions like
the Samsung v Apple case in 2012 when Apple obtained a billion dollar judgment against Samsung for patent
infringement. Most family law cases also resolve through settlement.
The fact of the matter is that litigation is a sport of kings. Very few middle-class people and small businesses
can afford the cost and risk of a lawsuit. It is why people buy liability insurance. Consequently, as a lawyer
representing a client in a conflict or dispute, you play a major role in negotiating towards resolution of the
problem.
In disputes headed for litigation or in litigation, your goal is to manage the risk of loss if you are defending
and to optimise gain if you are prosecuting. Thus, your role is much different in settling a case than in
negotiating a business deal.
Lawyers generally take a leading role in negotiating settlements of disputes and claims. There are times when
the client is actively involved in the negotiation process. In other cases, the client is passive and relies upon
you to negotiate the best deal possible.
The most important thing to remember is that clients make the final decision. And they do so only after being
informed by the lawyer of the risks and benefits of the settlement.
Finally, in the wise words of John F. Kennedy (Inaugural Address 1961):
“Let us never negotiate out of fear, but let us never fear to negotiate.”
End of Document
CHAPTER IV MEDIATION—THE MAGIC
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
A large ocean liner was headed across the Atlantic from Portsmouth to New York. As it grew dark, the ocean liner came close to
its destination. A lookout on the wing of the bridge reported, ‘Light, bearing on the starboard bow.’ The captain asked, ‘Is the
light steady or moving astern?’. The lookout replied that the light was steady. This meant that their liner was about to collide.
The captain then called to the signalman, ‘Signal that ship: We are on a collision course. We advise you to change course 20
degrees.’ The signal came back with the reply, ‘Advisable for you to change course 20 degrees.’ The captain said to the signalman,
‘Send another signal - I am the captain of the famous ocean liner, change course 20 degrees.’ The signal came back - ‘I am a
seaman, second class. You had better change course 20 degrees.’ By this time the captain was in a rage. He spat out, ‘Send this
signal - This is the mighty ocean liner, HMS Franconia. Change course 20 degrees now.’ Back came the flashing light, ‘This is a
lighthouse, suggest you change course 20 degrees.’
—Anonymous
Mediation is a peaceful mechanism for resolving conflicts. It is a voluntary and non-binding negotiation
process that occurs outside the courtroom. In mediation, a third, im­partial and neutral party manages the
interaction between disputing parties. This ensures constructive negotiation between the disputing parties and
helps them to agree on a resolution that is fair, durable and workable. It is the disputants and not the mediator
who creates and finally agrees on how the dispute needs to be resolved. In a way, mediation is nothing but the
use of negotiation to resolve a dispute outside the traditional dispute resolution framework.
In addition, mediation allows building stronger relationships between the parties and focuses on people
cohesion more than the actual problem. The mediator has to use psycho­logical and communication skills in
order to understand the parties and influence them to agree on a single solution.
Many myths surround mediation that mask its benefits and prevent its popularity in the marketplace. There is
a common belief among business professionals that mediation lacks closure or binding authority. However,
this is not the case. A settlement agreement executed by the parties post mediation is as binding as all other
contracts.
A mediator is a coach who consistently and persistently prompts disputing parties to understand one another
and develop mutually acceptable options. Contrasted with discussions facilitated by an intervener as
compliance officer targeted at securing compliance with a rule, a mediated discussion can be an instrument for
change. Customs, practices, laws, and values change over time, and individuals can prompt change as well as
adjust to it. A mediator helps develop new approaches and strategies to address a situation.
In mediation, the parties retain control over the dispute and its outcome. This central feature of mediation self-determination by the parties - is a facet of democratic process: that the voice and wisdom of people can
shape outcomes responsive to particular situations. In this respect, mediation is fundamentally different from
adjudication, where power to determine the outcome is ceded to an arbitrator, judge or jury.
Page 2 of 2
CHAPTER IV MEDIATION—THE MAGIC
Mediation focuses on needs and interests of the disputants to arrive at feasible and workable solutions. It
empowers the parties to come forward and solve their own problems. The mediator only facilitates dialogue
between the disputants and helps them reach an agreeable solution. Since the parties themselves come up with
the most acceptable solution, mediation does not lead to more appellate litigation like arbitration. The dispute
is resolved and the parties go back with more enhanced relationships and better understanding of each other’s
needs and issues.
End of Document
HISTORY OF MEDIATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
HISTORY OF MEDIATION
Mediation is not a new ‘Western’ innovation as many people believe. Since more than 3,000 years, mediation
has been used as a method of dispute resolution in a variety of different cultures. Tracing the roots of the
practice is a journey of culture, translation, war, understanding and peace. Mediation was not just a means of
dispute resolution. It was also a form of social control. Existence of mediation in an organised and
institutionalised form can be found as far back as about 3000 years BC in Egypt, Bable and Assyr.
In South East Asia, the philosophy propagated by the ancient philosopher Confucius has had immense
influence. This philosophy has heavily impacted countries like Japan, China, Vietnam, Korea and Thailand.
Confucian philosophy not only sets out to give guidance to society on the way of life, but it also had
important things to say about both conflict avoidance and dealing with conflict.
In Confucianism philosophy various concepts like harmony (known as ‘he’) and giving way to others
requirements (known as ‘rang’) were highly valued. On the other hand, qualities like aggression and argument
are seen as character defects. This pervading emphasis on the requirement of harmony in life is reflected in
South Asian social interaction and conflict resolution. Further, Confucius believed that the society ought to be
governed by the principles of li (right behaviour) and not fa i.e. law. Taking recourse to law or engaging in
arguments on disagreements between the parties was considered a complete failure by the parties involved to
observe ethical principles and is seen as a major loss of face. There is a well known Japanese proverb which
reflects this ideology-“In a quarrel both parties are to blame”.
In line with the Confucian philosophy, mediation is a well established traditional practice and mediators
believe in steering parties not only to conflict resolution but also towards saving face. Similarly, in China,
there is an established history of resolving disputes through the intervention of a respected third party by way
of mediation.
Similarly, Buddha encouraged adoption of the middle way or middle path as the means to achieve calm,
insight, vision and also enlightenment. This historical emphasis on the resolution of disputes through peaceful
dialogue and compromise is intact even today in many Asian cultures. In many countries like China and Japan
resorting to litigation is considered a failure and ground for loss of face.
Mediation has also been in practice in Malaysia, Indonesia, Thailand and the Philippines. Mediation in
Malaysia is conducted by the local village headman who is known as ‘ketua kampong’. Mediation is also
conducted by mosque leaders known as ‘imam’ and also by clan leaders in the Chinese community. This
practice of mediation has its foundation in the Malay cultural approach towards good deeds consisting of adab
Page 2 of 5
HISTORY OF MEDIATION
and rukun. Adab requires one to show courtesy in word, deed and action to others. Similarly, Rukun requires
one to encourage social harmony in the community, society and family.
Further East, in Indonesia, there is again a tradition to use consensual procedures in the decision-making
process as well as in dispute resolution. In judicial procedures also, an authoritative decision maker meets the
disputing parties. He uses customary standards and criterion to help the disputing parties negotiate a
settlement with his advice. Additionally, group consensual based deliberative procedures known as Musyawarah
have traditionally also been employed to achieve an acceptable solution for all the disputing parties.
The Filipinos are known to use Barangays which is a committee of mediators in villages as a form of
institutionalising their preference for a collectivist, face saving and peaceful approach to mediation. In
Thailand, people have been known to take their disputes to monks, village elders and other leaders for
mediation. Also, in Singapore, indigenous forms of mediation were prevalent and disputes were resolved
within the respective communities by the community leaders.
In Europe, the role of mediation process and the existence of mediator dates back to centuries. Literature
from as far back as 1680 refers to international mediation standards. Also, Christian clerics were often
requested to mediate disputes between criminals and the government, family and other authorities when the
criminals sometimes sought asylum in the European churches.
The Holy Bible on Mediation
In the Bible, Paul directed the Corinthians to appoint people from their own community for resolving
disputes instead of submitting disputes to the court for resolution. The relevant verse is as follows:
If any of you has a dispute with another, do you dare to take it before the ungodly for judgment instead of
before the Lord’s people?
Or do you not know that the Lord’s people will judge the world? And if you are to judge the world, are you
not competent to judge trivial cases?
Do you not know that we will judge angels? How much more the things of this life!
Therefore, if you have disputes about such matters, do you ask for a ruling from those whose way of life is
scorned in the church?
I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between
believers?
But instead, one brother takes another to court - and this in front of unbelievers!
The very fact that you have lawsuits among you means you have been completely defeated already.
- 1 Corinthians 6:1
The justice systems of the ancient civilisations of Greece and Rome gave a primordial place to amicable
resolution of disputes. In these ancient civilisations, an institutionalised system of combined mediation and
arbitration (generally known as med-arb in the modern mediation terminology) seems to have been the
preferred means of resolving civil disputes. Particularly in ancient Rome, this form of judicial mediation had
an important influence. This system also greatly influenced the civil procedure in continental Europe and can
still be found in contemporary court practice of countries like Germany, Austria and Switzerland.
Page 3 of 5
HISTORY OF MEDIATION
In Ancient Rome, the mediators were called by a number of names, internuncios, interpolator, intercessor,
philantropus, medium, interlocutor, interpres, conciliator and mediator. We find historical references to the
use of mediators in commercial cases in Babylon and Phoenicia.
In ancient Greece non-marital mediators were referred to as ‘proxenetas’ while in ancient Rome mediators
were referred to, alternatively, as ‘mediums’, ‘philantropus’, ‘intercessors’, ‘internuncius’ and ‘conciliators’- to
name but a few. Chinese philosopher Confucius propagated that moral persuasion and concomitant
agreement were the most enlightened way to resolve disputes.
In India, a village panchayat, meaning five wise men, used to be recognised and accepted as a conciliatory
and/or decision-making body. Like many of the ancient dispute resolution methods, the panchayat shared
some of the characteristics of mediation and some of the characteristics of arbitration. The mediator, an
expert in the process of dispute resolution, controls the proceedings. His role is similar to a tribal chief acting
as a peace-maker. But under the ancient practice of mediation, if the mediation process was a failure, the same
person also had authority to render a binding decision on the dispute.
Apart from the Panchayats, another important form of early dispute resolution was called ‘panchas’ wherein a
wise person was chosen from the tribe to resolve tribal disputes. The disputing parties of the tribe approach
the pancha with their grievances and attempt to work out a settlement. If this proves unsuccessful, then the
dispute is submitted to a public forum attended by all interested members of the tribe where the claims,
defenses of the disputants and interests of the tribe are analysed in detail. If settlement is still not possible,
then the pancha renders a decision that is binding upon the parties. The pancha’s decision is make in accordance
with the tribal law as well as the long-range interests of the tribe in maintaining harmony and prosperity. The
proceedings are also only done orally and nothing is recording (including the settlement).
For many non-European legal cultures, mediation bears a comforting alternative and similarity to traditional
forms of dispute resolution that often date back to pre-colonial times. However, some reformers have grown
increasingly interested in reviving or extending traditional forms of dispute resolution and integrating them
into the formal litigation system. In the Indian sub-continent, we witnessed a peculiar outcome out of these
efforts, namely the Gandhian Theory of Conflict Resolution. This mechanism demanded great deal of
sacrifice from the practitioner one subset of this theory was this term called Ahimsa, a Sanskrit word which in
his eyes meant a positive term meaning not merely non-injury, but positive will to action for the well-being of
the others even at the sacrifice of oneness. Another subset of his theory was Satyagraha, the doctrine of
Satyagraha was an extension of the rule of family life in the political area. When we address how Satyagraha
was a means to resolve conflict – It can be said that violence to person and property has the effect of
clouding the real issues involved in the original conflict while non-coercive, non-violent actions appears to be
more inviting for the parties to a dialogue about the issues themselves. Gandhi, therefore addresses this by
stating “we must hate the sins but the not the sinner”.
As for the African cultural, the Gacaca courts of Rwanda evolved itself as a form of restorative justice system
which followed a local and community-based justice process which provides a sense of ‘ownership’ over their
own and unique experience of conflict. This sense relates to the exclusion of magistrates, elected officials and
clergy from the role of the judges, and resorts to opt for the use of trusted members of the community, which
in theory instigates the process of repair. Therefore, by removing the direct interference and orchestration of
the state, Gacaca proved the capacity of the communities to conduct a traditional and community-led process
of administering justice. As communities participated in and conducted the Gacaca court’s proceedings,
therefore, engaging in a collective acknowledgement of the crimes committed and suffered. As a part of this
system, functional qualities of repair also facilitate for ‘truth-telling’ and the practical, therapeutic qualities
associated with it. It also helped to bring the facts of the genocide out into the open’ while offering victims a
sense of closure.
Page 4 of 5
HISTORY OF MEDIATION
Historical and cross-cultural studies of mediation are rare and uncommon. There was also a varied diversity
and style in the practice of mediation across the world. Hence, it is difficult to make generalisations and come
to a definite conclusion on what mediation was in the ancient world. However, one key difference in the
international best practices of mediation and the traditional form of mediation is the role and influence of the
mediator in the outcome of the dispute. In modern mediation, the ‘ownership’ of the mediation process is
almost always with the disputing parties. The mediator only assists the parties in developing their own
solution. However, in the ancient practices of mediation, the mediator had a dominant role since he was also
most of the times a highly respected member of the social group and occupied a leadership position in the
society. Mediation occurred in the context of the social group of the disputing parties and the mediator had a
say in the final outcome of the dispute.
The Mediation Timeline
1800 B.C.
Mari Kingdom (in modern Syria) uses mediation in dispute with other
kingdoms.
1200-900 B.C.
Phoenicians (in the eastern Mediterranean) practice entrepreneurship
and negotiations.
500 B.C.
Mediation through Panchayat, used in India.
100 B.C.
Western Zhou Dynasty establishes post of mediator.
452 A.D.
As Attila the Hun destroyed city after city in his sweep across Europe,
Pope Leo the Great successfully negotiates to spare the city of
Ravenna, Rome’s western capital.
1648
Count Maximilian mediates an end to the Thirty Years War for the
Holy Roman Empire, establishing contours of Europe for a century.
1750s
Benjamin Franklin, as Pennsylvania’s Indian commissioner, reports
learning persuasion, compromise and consensus building from Native
Americans. He also prints some of their peace documents.
1776-1785
Benjamin Franklin, John Adams, and Thomas Jefferson negotiate in
Europe on behalf of the weak United States, establishing a diplomatic
history for the young nation.
1775-1860
From the Continental Congress to Lincoln’s inaugural, repeated
negotiations and compromises reach temporary solutions to the slavery
issue.
1790
Thomas Jefferson mediates between Treasury Secretary Alexander
Hamilton and Congressman James Madison, establishing the U.S.
capital at Washington, D.C., and creating the national debt.
1865
Generals Lee and Grant negotiate the terms of the South’s surrender,
ending the Civil War.
1902
President Teddy Roosevelt mediates a long anthracite coal strike.
1906
Teddy Roosevelt mediates peace agreement ending the Russo-Japanese
War, earning him the Nobel Peace Prize.
1947
Sardar Vallabhhai Patel negotiated the integration of Princely States
into India.
1990-91
Nelson Mandela negotiated equal rights for the Blacks in South Africa.
1996
Arbitration and Conciliation Act 1996 passed in India.
Page 5 of 5
HISTORY OF MEDIATION
The Mediation Timeline
2002
Code of Civil Procedure is amended to include reference of matters to
mediation by court.
2005
Supreme Court addresses the need for mediation in India in the famous
Salem Bar Association Case.
2005-08
Various government aided and court annexed mediation centres are
established for the first time in India.
2008
European Union passes Directive to introduce mediation in cross
border civil and commercial matters.
2010
Supreme Court passes landmark judgment pointing out the flaws in the
implementation of mediation methods in India in Afcons International.
2013
Section 441 of Companies Act, 2013 provides for settlement of company
law matters through mediation.
2016
The Companies (Mediation and Conciliation) Rules 2016 were notified
which prescribes the procedure for the empanelment of mediator.
2018
The Commercial Courts, Commercial Division and Commercial
Appellate Division of High Courts (Amendment) Act, 2018 came into
force which introduced Section 12A providing for compulsory preinstitution mediation in cases where any urgent interim relief is not
sought.
2019
The Consumer Protection Act, 2019 makes provisions for the
establishment of consumer mediation cells.
2020
Singapore Convention on Mediation comes into force.
2020
Consumer Protection Act, 2019 along with Consumer Protection
(Mediation) Rules, 2020 were brought into force.
End of Document
CHARACTERISTICS OF MEDIATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
CHARACTERISTICS OF MEDIATION
One of the best ways to understand concepts is to break them down into their constituent qualities. Once you
understand each part of the process, it is easier to accept the holistic picture. In the case of mediation, it is an
informal and confidential conflict resolution process. Through this process, an impartial third party helps two
or more participants better understand their issues, interests and needs. This impartial third party empowers
the participants to bridge their difference through a voluntary agreement.
To simplify, the key characteristics of mediation are as follows:
a. Impartiality: To solve any problem it is very important to take a holistic view of a picture. To take a
holistic view of things, it is very important for us to take a neutral look of things which is why the
proverb goes ‘looking at the world with rose-tinted glasses’. Since the parties embroiled in a dispute
find it difficult to be impartial or neutral towards their issues. Hence, they appoint an impartial
mediator who can help them look at their problems through a solution-based approach instead of
‘this is all your fault’ approach. Impartiality is therefore a cornerstone of the process of mediation.
Generally, people who have a stake in the matter are not allowed to become mediators for the
dispute. To maintain impartiality, a mediator does not take any decisions in the mediation process.
Also, the mediator unlike an attorney does not represent the interests of any one disputing party. The
mediator also does not advocate on behalf of any of the participants in the mediation process. On the
other hand, the mediator assists the disputing parties to communicate more effectively and make
durable and sustainable decisions about how to resolve their dispute. For this to work out, a mediator
will always remain impartial and not favor one party over another. If the process of mediation is
perceived to be biased by any of the disputing parties, this perception can undermine any meaningful
progress made in the resolution of the conflict. A mediator should be able to run a balanced process
that treats all disputing parties fairly. The mediator should not have a material interest in the outcome.
b. Private and Confidential: Confidentiality is a valuable asset for most businesses. Few want their dirty
laundry aired in public. The entire mediation proceedings are strictly confidential for the mediator as
well as the participants. The process is confidential, and materials assembled for mediation are usually
not admissible in court if the mediation fails and the parties resort to litigation. The mediator will
always describe the exact terms of confidentiality and the parties may also sign a non-disclosure
agreement. While the terms of a mediation settlement may often be protected from public view under
the terms of a confidentiality agreement, this may not be the case for public entities, which have
stringent reporting obligations. Disclosure of settlement terms will be necessary if one party goes to
court to obtain enforcement of the settlement agreement. By entering into a separate confidentiality
agreement before the mediation, and incorporating an ADR clause into the mediation settlement
agreement, the risk of disclosure can be reduced but not completely eliminated.
Page 2 of 7
CHARACTERISTICS OF MEDIATION
When a Mountain Splits (in private)
Background
Amarchand & Mangaldas & Suresh A. Shroff & Co (AMSS) is the largest law firms of India having a strength
of more than 700 lawyers and 86 partners. It is a law firm of high repute not only in India but worldwide
handling the legal work of a clientele consisting of many major business houses of India from Tatas to
Ambanis.
The firm is managed by the Shroff brothers - Shardul Shroff and Cyril Shroff. The firm was started in 1917 by
the grandfather of Shardul and Cyril-Amarchand Shroff. The brothers took charge in 1994 after the demise of
their father, Suresh Shroff. While Shardul and Cyril both hold around 17-18% stake in the firm, their mother
Bharati Shroff held around 22% in the firm. While Cyril runs the Mumbai branch (that includes Bangalore,
Hyderabad and Chennai), Shardul runs the Delhi branch (including Calcutta, Ahmedabad branch of the firm).
Mrs. Bharati Shroff passed away in 2014. Post her death, a battle over control of the firm began. Shardul
Shroff claimed that his mother had left all her property including the 22% stake in AMSS solely to him.
Shardul has filed a notice of motion and a declaratory suit and a petition for probate seeking to be declared as
the sole executor of his mother’s will. Now, the will of Late Mrs. Shroff is reported to be in contradiction to
an already existing Family Framework Agreement executed in 2001. The Family Framework Agreement is
reported to bind the family in three important covenants:
•
No member of the Shroff family will act in any way that will jeopardise branch equality of the
branches of AMSS;
•
The family will at all times vote in a single block;
•
Upon the demise of Mrs. Bharati Shroff, her stake in the partnership will be divided equally between
Shardul and Cyril.
It is reported that all members of the Shroff family had jointly executed the Family Framework Agreement.
Over the last fourteen years, the Family Framework Agreement had become the main terms of the
partnership understanding in AMSS.
In line with this agreement, the key management committee of AMSS is said to have passed a resolution
dividing the stake of Mrs. Bharati Shroff into two equal halves. This action of the management committee is
said to have violated the terms of her last will. Shardul filed a suit at the Bombay High Court against this
action.
The Considerations
A lot was at stake for the Shroff brothers. As various legal proceedings were initiated, the details of the
conflict became public record. The dispute was widely reported with various news reports claiming ‘inside
information’. The reputation of one of the most well known families of the legal fraternity was at stake.
Commercially, the brand image of AMSS was at stake. Most importantly, the present and prospective clients
of AMSS were becoming apprehensive of the future of the firm. The partners of the firm who had no
connection with the Shroff family and had pooled their business into the firm may have also needed
reassurance that all was well. The large pool of more than 700 employees would have had their own worries.
Legal websites were running live blogs of each and every public detail of the dispute. The arguments at the
court from both the parties were also documented and are now in public domain. The legal structuring of the
firm which was never documented and is generally not disclosed by any law firm leaked out.
Page 3 of 7
CHARACTERISTICS OF MEDIATION
Damage Control
The legal magnates of India decided to finally submit the dispute to the confidential process of mediation
under a referral from BombayHigh Court. The foremost important outcome of this move was that the steady
outflow of information was reduced to a great extent. What remained was only speculation.
Present Status
The brothers have decided to split the firm into two halves with effect from 1 April 2015. Some of the issues
which the brothers may have to decide but will remain part of the confidential process of mediation are:
•
The right to open offices in each other’s territory. For example, it is reported that Cyril has opened
his office in New Delhi (Shardul’s turf);
•
What happens to the common brand name of the firm;
•
What happens to the common assets and liabilities of the firm including outstanding payments from
clients;
•
Non solicitation of clients and non-compete for some period of time;
•
Non solicitation of partners not part of the family but who contribute substantially to the revenue
pool of the firm.
What also remains to be seen is the division of the personal property of Mrs. Bharati Shroff which she has left
to Shardul as per the will.
Townhall 2020
Again in 2020, the law firm, L&L formerly known as Luthra and Luthra was in the news due to a dispute
between the firm’s equity partners. The dispute was taken to the Delhi High Court with both parties agreeing
for mediation in the matter. Mr. Sriram Panchu was appointed a mediator for the conflict.
However, owing to the fact that the mediation did not succeed at the current stage, the dispute was sent back
to the High Court of Delhi.
c. Informality: The mediation process has been developed over various years to be flexible and userfriendly. It does not follow rules of procedure like submission of written statements, taking evidence
on record, filing of counter affidavits etc. which is followed in litigation and in most arbitration
proceedings in India although it is not mandatory to do so.
d. Party Control: Participants have ultimate control and decision-making power over the outcome of the
mediation. Unlike any other adjudicatory process where parties submit the outcome to an adjudicator,
mediation allows parties to determine their own fate. The parties cannot be forced to settle or to
agree to anything that they cannot live with. To many, this is the single most valuable element of the
process. The disputing parties will not be at the mercy of a third party adjudicator who does not
understand the consequences of the final decision or award. Mediation is based on the fact that no
arbitrator or panel will ever be as familiar with the nuances of your business and its related disputes as
your client is. Mediation allows a disputing party to decide how to respond to settlement proposals,
whether they involve sensitive key issues or those of secondary importance. The party itself can
decide when it can afford to be flexible and when it cannot.
Page 4 of 7
CHARACTERISTICS OF MEDIATION
e. Cost Effective: Mediation is an extremely cost-effective alternative to litigation and arbitration. The cost
of a mediation pales in comparison to trial or arbitration costs. Frequently, the parties will exchange
expert reports to enhance the other side’s understanding of the strengths and weaknesses of their
position. The resulting time that key managers are away from productive work is another cost that
parties need to consider when weighing the benefits of mediation. A focused discovery process
managed by the mediator will keep the parties’ efforts on crafting of potential solutions, and away
from stalling and delay tactics. Another reason mediation is less costly is that there is no requirement
of filing written affidavits and counters in mediation. Preparing and filing written affidavits and
counters generates extremely high legal fees. Their absence from mediation makes this process the
most economical by far.
f. Time Saving: Resolution of disputes through mediation may take approximately six months. On the
other hand, litigation extends for years and although the arbitration proceedings themselves may take
a year or more, most of the arbitral awards in India are further appealed in the appellate forums and
the parties again get stuck in litigation proceedings.
Hence, mediation can save a lot of time and money for the disputing parties. Even if the
mediation is not completely successful, by agreeing to resolve some disagreements, leaving only
the intractable portion of the dispute for a third party to resolve in arbitration or litigation, the
ensuing adversarial proceeding can become less complex and protracted, hence less expensive. If
the parties continue to negotiate after the mediation has ended, their efforts could bear fruit in the
form of a settlement of the remaining open issues.
g. Maintain Relationships: A mediator does not decide on what is ‘right and wrong’ or who will ‘win or
lose’. Mediation preserves business relationships by requiring contracting parties to approach conflicts
or breaches in a constructive way. Litigation, alternatively, may destroy any chance of maintaining a
healthy and successful business relationship in the future.
The mediation process is inherently less adversarial than litigation or arbitration. In order to
succeed, a respectful attitude must be maintained by all participants. An experienced mediator will
make sure that this occurs by setting the ground rules for the mediation and talking privately in
caucus with the parties. When parties act respectfully toward each other, they are more inclined to
listen to each other’s point of view. That does not mean that they necessarily accept it. But
hearing it is a first step toward working out a mutually acceptable solution.
A consequence of this good behavior often is the repair of the parties’ damaged relationship.
Many mediation settlements have included future business arrangements. Especially when parties
repeatedly do business together, this aspect of the mediation process could be worth more than a
monetary settlement. Certainly that could not happen if the parties or their counsel were insulting
each other and denigrating what the other had to say. Because the parties and counsel are required
to behave in a businesslike way and be open to hearing each side’s legal arguments, as well as their
interests and needs, there is a higher level of emotional satisfaction from participating in
mediation than in more adversarial processes where the results are determined by a third party.
The parties usually will be happier with a result that they have helped to craft, than with a
resolution imposed upon them by a stranger.
The voluntary decision to take less than one had initially hoped for is a far less bitter pill to
swallow than being forced by judge or panel to accept a fraction of the damages originally
anticipated. Remember, for the parties, litigation is always a tension-filled and stressful experience.
In litigation, each side is competing for the hearts and minds of strangers - whether a judge or
Page 5 of 7
CHARACTERISTICS OF MEDIATION
jurors. Even though arbitration is less formal, taking place in an office setting with no judge in
robes, no bailiffs with guns, and no jury, and even though you select the arbitrators, you cannot
be sure of the likelihood of a successful outcome, so there is still quite a bit of risk, which is
stressful in itself. Mediation alone puts the outcome in the hands of the parties.
h. Emphasise Interests: The flexibility and creativity of the solution building process focuses on the
interests of the participants, allowing all participants to feel satisfied with the outcome. The
participants can tailor solutions that meet their needs.
Mediation at its core is an interest-based process of dispute resolution. Lon Fuller wrote
mediation allows parties to reorient “toward each other not by imposing rules on them, but by
helping them to achieve a new and shared perception of their relationship: a perception that will
redirect their attitudes and dispositions toward one another.” The mediator’s role is to provide
each party’s perspective to the opposing party and bring a new awareness to each side with the
goal of achieving an agreement. The traditional focus of mediation is not toward court rules and
statutes; rather it is an open forum for parties to be creative in their dispute resolution.
i. Control the Outcome: Mediation is voluntary and parties retain full control over the outcome including
the settlement agreement terms. Mediator does not decide on the outcome of a case, or on any party’s
wrongdoing or fault.
The participants are always in control of the mediation process. They resolve the dispute on their
own terms and not on terms imposed by others. They may also decide to withdraw from
mediation after the first session, if desired.
The solution need not be, and often is not, an outcome that a judge might or could properly
impose through a decision in a court which is limited by legal constraints, rights, and precedents.
It is simply the unique resolution found by the participants in the mediation that is ‘good enough’
for them in all the circumstances. The resolution is often more comprehensive and creative than a
judgment or an arbitral award. It can provide a “win-win” outcome for the participants. As part of
the search for a solution a skilled mediator will often look for added value which is often missed
in mainstream negotiations, but can be a way of removing deadlock.
j. Non-binding negotiation: Mediation is assisted negotiation. Through mediation, businessmen do what
they do best; namely, come to a negotiated agreement that best fulfills their business objectives and
fulfills their interests. The assisted negotiation process, in common with all dispute resolution
processes, seeks to bring disputes to an end. Unlike expert determination, adjudication, arbitration
and litigation, however, the various forms of assisted negotiation processes are considered to be
consensual, involving the disputing parties directly in the shaping of the terms of the resolution, as
opposed to having the terms of the resolution imposed by a third party. However, depending upon
the model of assisted negotiation process adopted, what the parties retain control over varies
considerably, ranging from the terms of the settlement to the enforceability of the settlement.
In negotiation, or its variant of mediated negotiations (mediation), the parties retain the role of
decision maker. Though one party may have more power or influence than the other party, a
negotiation still requires mutual influence and the accession of both parties, thus each party must
attempt to influence the other. The negotiation process requires parties to communicate, to learn
how to influence each other, and to develop some level of collusion and coordination.
Negotiation assumes inter-dependence, thus parties must influence the other to achieve their own
goals. Influencing the other in a negotiation can run the spectrum from persuasion to coercion.
Problem solving in negotiation, whether in interpersonal or international, suggests a framing of
Page 6 of 7
CHARACTERISTICS OF MEDIATION
the task from one where one forces one’s solution or decision, to a task where “two heads are
better than one” and the parties solve the problem together. The dynamic of the struggle for
dominance, of the need to “win,” may still play a role; however, the joint responsibility for solving
a problem becomes the primary focus.
k. Mediation is forward-looking: Participants have the opportunity to rebuild relationships that have been
strained. This can be the key for the ultimate, lasting resolution.
Mediation is therefore generally forward-focussed, not backward-looking. The past cannot be
changed, but it can sometimes be cathartic to explore and rebuild relationships where this is an
important step in securing a resolution. This transformative approach features in some family,
community, and workplace cases, but it is not the central theme of most civil and commercial
mediation. There, more commonly, the mediation will look to build a solution that works and will
be durable.
l. Addressing Cultural Issues: Many times cultural issues may become an inter-woven aspect of the dispute
itself. Cross-cultural mediation allows people of different social backgrounds to cooperatively and
respectfully negotiate common and diverging goals until they agree upon a single settlement that is
mutually beneficial.
m. Agreements reached in mediation are final and binding: The participants memorialise their agreement in
writing. The Agreement does not constitute an admission by the participants of any blame or guilt.
However, the agreement is contractually final and binding for the participants. Mediated settlement
agreements are rarely breached. Each party will have its own interest in performing the agreement;
otherwise they would not have signed it.
A mediated settlement can completely resolve a construction dispute. When a dispute is
completely settled in mediation, if counsel for both sides do a proper job, there should be no
appeals or conditions subsequent to alter the new deal the parties have struck. The mediation
agreement would be immediately enforceable. In the event that there are any differences of
interpretation or problems with compliance, the settlement agreement could contain an
alternative dispute resolution clause so that any disputes under the agreement could be resolved
expeditiously. If the parties agree, it is even possible to refer the matter back to the original
mediator. Having a mediated settlement agreement allows your client to put the dispute behind it
and move on to new terrain that it will be traversing in the future.
n. Narrowing Issues: Even if mediation is not completely successful in resolving the entire dispute, it can
still be productive. The mediation process can help to identify facts and issues on which there is no
dispute; it can also narrow the issues in dispute by having the parties settle ancillary or severable
issues. Mediation can then focus on the remaining significant issues in dispute and, no doubt, it will
teach the parties that the facts are subject to a variety of interpretations. This can help pave the way
for a partial or eventual settlement of the matter. For example, the parties can agree to separately
negotiate disputed change orders that may be too numerous to be handled efficiently in litigation or
arbitration. Mediation can also narrow the gap between the parties’ demands, so that economics of
litigation or arbitration tip even more decisively towards a negotiated settlement.
o. Reality Check: The mediation process allows the true decision makers for each side to view the dispute
through the eyes of the other side. Mediation may be the first time your client has been able to see an
alternate reality of the case, one that is more nuanced or complex than previously imagined. The
mediator can be extremely helpful in this regard as he or she encourages each side during private
caucuses to see the real strengths and weaknesses of its case. The process of reality testing often is
what motivates the parties to move forward with offers and counteroffers during the mediation.
Page 7 of 7
CHARACTERISTICS OF MEDIATION
What it is Not
Mediation does not involve the mediator telling the participants the solution - or even venturing suggestions.
It is for the participants themselves to find, with the mediator’s assistance, and to agree a solution that meets
their needs, concerns, and interests. Control remains with the participants. It does not involve the mediator
telling the participants what a judge may or will do, or who is right or wrong. Nor does it involve the mediator
assessing the merits of the case: after all, the mediator may not be aware of all of the relevant information, or
even the relevant law. Mediators are commonly not lawyers and, because participants generally bring their
own advisors, mediators do not need to be experts in the legal context of the dispute.
Misconceptions
There are many misconceptions of the role of the mediator, which may hinder participants agreeing to
mediate. Those commonly encountered are:
•
Mediation requires compromise from one or both participants - it does not: very often the outcome is
unexpected and allows both to grow.
•
The mediator is an evaluator - there should be no evaluation by a mediator: any assessment of risk or
merits is for the participants.
•
The mediator is an arbitrator - arbitration is a wholly different statute-based process involving legal
assessment by, in effect, a private judge.
•
The mediator will impose a solution – a mediator has no such power.
•
The mediator will knock heads together - a mediator has no such role.
•
The mediator will apply pressure on the participants - the only pressure that participants experience is
that from their own assessment of risk.
•
The mediator will advise the participants what to do – the participants must rely on their own
judgment, or that of their advisers.
•
Mediation is unlikely to be successful – around 90% of mediations result in a resolution on the same
day or shortly afterwards.
End of Document
DIFFERENCE BETWEEN MEDIATION AND CONCILIATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
DIFFERENCE BETWEEN MEDIATION AND CONCILIATION
Mediation
Mediation is a peaceful mechanism for resolving conflicts. It is a voluntary and non-binding negotiation
process that occurs outside the courtroom. In mediation, a third, impartial and neutral party manages the
interaction between disputing parties to ensure constructive negotiation, thus helping them to agree on a
resolution that is fair, durable, and workable. The disputants, not the mediator, create, and agree on the final
decision.
In addition, mediation allows building stronger relationships between the parties and focuses on people
cohesion more than the actual problem. The mediator has to use psychological and communication skills in
order to understand the parties and influence them to agree on a single solution. Many myths surround
mediation that mask its benefits and prevent its popularity in the marketplace. International business
professionals are left with the belief that mediation lacks closure or binding authority, which is not the case, as
that agreement is as binding as all other contracts.
Conciliation
Conciliation is an alternative dispute resolution process whereby the parties to a dispute (including future
interest disputes) agree to utilise the services of a conciliator, who then meets with the parties separately in an
attempt to resolve their differences. Conciliation is a term often used interchangeably with mediation. At
other times, it is used to refer to a more unstructured process of facilitating communication between
estranged parties.
Mediation
Conciliation
Mediation is an ADR method where a neutral and impartial third party,
the mediator, facilitates dialogue in a structured multi-stage process to
help parties reach a conclusive and mutually satisfactory agreement.
It is a process by which representatives of workers and employers are
brought together before a third person or a group of persons with a
view to persuading them to arrive at an agreement by mutual discussion
between them.
‘Mediation’ is limited to encouraging the parties to discuss their
differences and to help them develop their own proposed solutions.
‘Conciliation’ implies a stronger form of intervention. The conciliator
may be permitted to offer the parties proposals for settlement.
A mediator cannot suggest solutions but can only facilitate dialogue
between the disputants.
A conciliator can suggest solutions to the disputing parties.
The mediator at all times maintains his or her neutrality and
impartiality. A mediator does not focus only on traditional notions of
fault and a mediator does not assume sole responsibility for generating
solutions. Instead, a mediator works together with the parties as a
In conciliation, the conciliator plays a relatively direct role in the actual
resolution of a dispute and even advises the parties on certain solutions
by making proposals for settlement. In conciliation, the neutral is
usually seen as an authority figure who is responsible for figuring out
Page 2 of 2
DIFFERENCE BETWEEN MEDIATION AND CONCILIATION
Mediation
Conciliation
partner to assist them in finding the best solution to further their
interests. A mediator’s priority is to facilitate the parties’ own discussion
and representation of their own interests, and guide them to their own
suitable solution - a good common solution that is fair, durable and
workable. The parties play an active role in mediation, identifying
interests, suggesting possible solutions, and making decisions
concerning proposals made by other parties. The parties come to
mediator seeking help in finding their own best solution.
the best solution for the parties. The conciliator, not the parties, often
develops and proposes the terms of settlement. The parties come to the
conciliator seeking guidance and the parties make decisions about
proposals made by conciliators. In this regard, the role of a conciliator
is distinct from the role of a mediator.
In mediation, attorneys generally offer advice and guidance to clients
about proposals made by mediators.
Attorneys are more active in conciliation in generating and developing
innovative solutions for settlement.
End of Document
APPROACHES TO MEDIATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
APPROACHES TO MEDIATION
There are three main approaches to mediation. Though there are no specific right or wrong styles, leaving
room for individual mediator preferences based on the nature of the conflict.
a. Facilitative Mediation: In this process, a mediator structures a process to assist the parties in reaching
a mutually agreeable resolution. This means that the mediator will take an active role in controlling
the ‘process’. Process means things like setting the ground rules for how the problem will be solved.
The mediator asks questions to identify the interests of the parties and the real issues in the
disagreement and facilitates the dialogue between the parties to a mutual understanding. If the
mediator adopts this approach, then he does not offer an expert opinion on the strengths and
weaknesses of the parties’ cases. The mediator asks questions, normalises (rephase) parties’ points of
view, searches for interests underneath the positions taken by parties and assists them in analysing
options for resolution.
The mediators adopting this approach often hold joint sessions with all the parties present so that
the parties can hear each other’s point of view, but also hold caucuses regularly. This approach
stresses on the fact that parties have the major influence on decisions made, rather than the
parties’ lawyers.
b. Evaluative Mediation: Evaluative mediators are usually legal practitioners, that often have a sector
specific expertise in a field of law. To aid the process, the often provide the parties with an evaluation
of the strengths and weaknesses of their case with respect to their legal positions. The mediator may
also advice as to a likely outcome at court to drive the parties towards settlement options. They are
more concerned with the legal rights of the parties rather than needs and interests and likely evaluate
on the basis of legal concepts of fairness.
This mediation grew out of court-mandated mediation. Advocates, while they work with the court
to choose the mediator, are also active in the mediation. In India, we see this form of mediation
more frequently that a facilitative approach considering a large number of mediations in India are
court mandated are conducted with court complexes.
Transformative Mediation: This approach is a lesser structured approach that focuses on two key
interpersonal processes – empowerment and recognition. This was coined in the book called The
Promise of Mediation: The Transformative Approach to Conflict by Joseph P. Folger and Robert
A. Baruch Bush.
Page 2 of 2
APPROACHES TO MEDIATION
A transformative mediator aims to empower the parties involved to make their own decisions and
their own actions. They also work to foster and develop recognition for and between the parties.
This is an organic process and highly responsive to the party’s needs. In this process, the parties
structure both the process and the outcome of the mediation, and the mediator follows their lead.
End of Document
ASSESSMENT OF SUITABILITY OF A CONFLICT FOR MEDIATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
ASSESSMENT OF SUITABILITY OF A CONFLICT FOR MEDIATION
Each conflict is unique. No two conflicts can be considered the same in terms of the emotional involvement
and interests of the parties. Parties might consider various characteristics of resolution procedures when
choosing the suitable resolution technique such as litigation, arbitration, expert determination, Lok Adalat,
ombudsman, mediation, conciliation and negotiation: party autonomy, confidentiality, flexibility of procedure,
impact on relationship with conflict party, enforceability, sustainability of the conflict resolution, material
quality of the solution, direct and indirect procedure costs and duration of procedure. This could be the first
part of the conflict resolution assessment.
Mediation is suitable for nearly all kinds of civil disputes. To assess the suitability of the dispute for mediation,
the interested parties may be invited to attend a preliminary meeting in which the mediator will assess whether
mediation is suitable for their particular circumstances. For mediation to be effective, the case must be
appropriate for mediation and the timing of the mediation in relation to the stage at which the dispute has
reached needs to be deliberately chosen. Especially in connection with a serious effort to resolve complex,
fact-based disputes, an early mediation may be more or may be less fruitful than a mediation that occurs later.
The second part of the conflict resolution assessment could be to evaluate the suitability of the individual
conflict in relation to the available dispute resolution mechanisms.
In evaluating the material suitability of a conflict for mediation, the following issues could be considered:
•
Nature of the conflict;
•
Methods already tried to solve the conflict;
•
Probable costs of different procedures to solve the conflict;
•
Possibility of a consensual solution;
•
Probable duration of different procedures to solve the conflict including the consideration of a failure
of the procedure tried;
•
Reasonable and desired success/outcome;
•
Importance of control over the conflict solution;
•
Extent to which communication problems have contributed to the conflict;
•
Importance of an on-going relationship with the conflict party/parties;
•
Desire to solve further problems in connection with the conflict.
Page 2 of 5
ASSESSMENT OF SUITABILITY OF A CONFLICT FOR MEDIATION
Mediation has the greatest chance of success when adequately empowered parties are prepared to engage in
meaningful and informed discussions with the mediator. If one of these elements is missing, the likelihood of
reaching a settlement is reduced. In addition to the skills of a trained experienced mediator, it is more
important to have the right people with the right information in the right frame of mind to settle a dispute in
mediation. Thus, a case may not be ready to be mediated until the parties have taken steps to investigate their
respective positions and their available options. It is necessary for the disputing parties to be willing to
negotiate in good faith for the mediation process to work. This really has little to do with ‘not bidding on me’
and more to do with a willingness to change your perception about a situation and be flexible about
considering possible solutions, even those that are less than what the party initially envisioned.
Most often, mediation turns sour because one side is not sufficiently informed or even mislead by external
factors to recognise a good settlement opportunity. This may be due to ignorance of the facts or the law. But
it could also be due to ignorance of the risks involved in allowing a judge, jury or arbitrator to decide the
disputed issues. Unless the parties are realistic of the outcome they expect from using other dispute resolution
methods and the resultant time, money and effort they will be putting to achieve the outcome, the parties may
not be mentally prepared to reap the full benefits of mediation.
A full assessment of liability and of damages may require the assistance of a financial advisor like a chartered
accountant. It is vital that each side have a realistic view of the dispute. Otherwise it will be difficult to settle.
During the mediation, the mediator will assist with this by providing a reality check. There is no reason for
ignorance of the law. Prior to the mediation, counsel should provide the client with an assessment of relevant
case law so a clear-headed evaluation of risk at trial can be made. Where the case turns on a legal issue, if the
jurisdiction does not prohibit the practice, the parties may ask a private mediator for an evaluation of how the
case might turn out at trial.
Also, it is imperative that each party send a representative to the mediation who has full authority to settle the
matter. An offer met with “I’ll take it back to my boss and consider it” will not provide settlement
opportunities. Not only must the parties commit the time and resources necessary to mediate effectively, they
must be prepared to bring the mediation to an end with a settlement. Mediation is a process of learning about
the dispute and the interests and needs of the other side in order to develop proposals and counterproposals
that might be acceptable.
Family Mediation
The first example of a conflict that is well suited for mediation is the breakdown of a family. The classical
family dispute is suited for mediation for a variety of reasons. Just to name a few: Mediation is flexible in
terms of timing and procedure. Hence, it allows the parties to discuss possible solutions, go into discussions
between one party and the mediator only in times of conflict escalation and use various forms of
communication, such as mediation sessions, email exchanges, consultation with their lawyers and short phone
conversations. Party autonomy allows the parents to search for the solution they feel best fits the needs of
their children instead of giving the decision away to a court that needs to decide on the basis of the court file,
oral hearings and expert statements. The same is true for the monetary solution. Instead of the one option
offered by statutory law, the parties might find a more creative solution that would allow keeping the family
home as a continuing basis for the children instead of selling it. Also, mediation offers the chance of finding a
sustainable and relatively quick solution that will bring lasting peace to the family instead of a court battle that
might continue for years.
Commercial Mediation
The second example of disputes which could well be solved by mediation are the ones in the commercial
arena. In countries like India where many businesses are family run or closely held, mediation becomes an
extremely efficient means of resolving disputes. There are many reasons why this conflict might be much
Page 3 of 5
ASSESSMENT OF SUITABILITY OF A CONFLICT FOR MEDIATION
better placed in a mediation than in a court proceeding. The open structure of mediation allows dealing with
the two dimensions of this conflict: the family dimension and the business dimension. In a court proceeding,
only the business dimension would be fought through. A purely rights based approach, i.e. a court proceeding
based on commercial laws limits the number of possible solutions. The shareholders could exert their control
rights and determine the future directors, but this might be impossible to reconcile with the family interest to
keep the business within the family members. A multi-year shareholder/director court proceeding might
further diminish the market value of the company. Mediation instead might open the possibility to formulate,
for example, a value and strategy code on the basis of which son and daughter can work together.
When Mediation is not Suitable
There are a few situations in which mediation may not be the right way to put an end to the dispute.
Mediation may be inappropriate for a dispute where it is important for one of the disputing parties to
establish a legal precedent that will be binding on all future similar transactions. However, setting a legal
precedent is not the same as ‘teaching the other party a lesson’ or ‘showing the other party you are right’. A
legal precedent is only a means to correct or enhance interpretation of a law. Also, a poor candidate for
mediation is a dispute where a party believes that immutable principles should govern the dispute. For
example, a governmental body may prefer to defend a regulatory program or public policy issue against a legal
attack, rather than resolve an individual challenge; a contractor trying to prevent a proposed government
contract award by challenging legislation that gives preferences to local businesses would likely find that its
dispute would not easily be resolved by mediation. Mediation also cannot work if an indispensable party is
absent from the table. A frivolous claim is another type of dispute that is not likely to be mediated
successfully. Mediation demands that the disputing parties be as informed about the nature and extent of the
dispute as can reasonably be managed. It also requires cool heads to dispassionately evaluate the risks of
pursuing alternative dispute resolution vehicles. A reckless disputant is unlikely to be interested in engaging in
compromise to put the matter to rest.
Some other disputes in which mediation may not be considered suitable are as follows:
•
A risk of violence, fear and power imbalances;
•
No ongoing relationship;
•
No substantive issue requiring discussion;
•
Longstanding disputes spanning over more than 10 years;
•
Where parties are not interested to settle the dispute and are not inclined to mediate in good faith;
and
•
If the same two parties have mediated previously but were unable either to reach a resolution or to
subsequently adhere to the agreement.
Why Some Mediations Fail
There are many instances when mediation may not work or may be frustrated for some or the other reason.
However, there is no way of knowing whether these circumstances will be present in your mediation. So, just
an apprehension that the mediation may fail should not deter a disputing party from engaging in the process.
To protect yourself in some of the situations where the opposite party is only using mediation as a tool to
strengthen its position in relation to other dispute resolution mechanisms, the following measures may be
taken:
•
Digging for Information: Sometimes the other party may never have any intention of trying to mediate a
resolution. Its purpose in agreeing to mediate may sometimes be to discover the other side’s position
Page 4 of 5
ASSESSMENT OF SUITABILITY OF A CONFLICT FOR MEDIATION
and facts that otherwise might be difficult to obtain through deposition or answers to interrogatories.
This possibility can be controlled to some degree by entering into an agreement before the mediation
that limits the amount of discovery in mediation.
•
Getting a Stay in Litigation or Arbitration: There may be certain situations in which a party seeks to
prolong the mediation as long as possible to obtain an advantage and demands that the litigation or
arbitration be suspended while mediation is pursued. This possibility can be prevented by agreeing to
a reasonable time limit for the mediation.
•
Withholding Important Information: One party holds back critical or important facts during the mediation
out of an ill-conceived belief that through surprise it will do better at trial or arbitration. This strategy
has been called ‘hiding the baby’. There is little you can do to prevent it except discuss with the
mediator your suspicions that the other side is holding back important information.
•
Expecting the Mediator to Do your Work for You: Sometimes the parties fail to understand that the
mediator is not a decision maker or they expect the mediator to convince the other disputing party to
come around to their perception of the merits. There is little you can do about this situation. It is the
mediator’s job to make clear that he or she is a facilitator not a judge and that mediation is an
opportunity for the parties themselves to take control of the settlement process.
•
Flooding of Emotions: One or both parties cannot control their emotions and the mediation becomes so
antagonistic that an impasse is reached or one party walks out. This can drive the parties further apart
with little hope of returning to the settlement process. There is little you can do if the other side is out
of control emotionally except rely on the mediator to try to calm things down. When mediation has
failed and the bills come in, parties tend to criticise the process. But one should not indict the process
because of conduct by an intransigent party. Most parties enter mediation with the sincere hope of
putting an end to the dispute. That is why mediation has such a high success rate and has been cited
in a survey of corporate counsel as the preferred dispute resolution process.
Self Assessment Questionnaire
Answer the following questions as objectively as possible to assess for yourself whether you think the dispute
is feasible for mediation:
Is this dispute delaying any development opportunity or important decision for you or your business?
Is it important for you to resolve this dispute as soon as possible or within a limited time frame?
Would you prefer some elements of the dispute not to become public/remain confidential?
Are you looking for a long-lasting solution to the dispute?
Is there any point of the dispute that you would like to discuss/clarify with your counterpart outside the
strictly legal aspects of the dispute?
Is there an interest in saving/maintaining the business relationship with the other party?
Have you any doubt about the outcome of the trial?
Do you consider that the litigation costs will reduce or even exceed what you could recover through the court
case?
Can you handle the emotional burden generated by litigation?
Page 5 of 5
ASSESSMENT OF SUITABILITY OF A CONFLICT FOR MEDIATION
Is it important for you to maintain control over the outcome of the dispute?
Do you fear that a Court decision may be difficult to enforce?
Is there any likelihood that you don’t need a legal precedent over the legal aspects of the dispute?
Are you looking for an apology from one of the counterparts?
End of Document
ROLE OF A MEDIATOR
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
ROLE OF A MEDIATOR
Mediators are certified, neutral, third parties, often with a background in law, economics, communications, or
business that have formal training in dispute resolution. Interpersonal skills are an important trait for
mediators since they manage and facilitate the interaction between the disputants. The mediator does not
render a decision like judge. The mediator must at all times be independent, neutral, and impartial. The
mediator’s job is to get negotiating parties to understand themselves and one another better, develop options
to address the disputed issues, and agree to terms that resolve their controversy.
The mediator assists the parties in determining their true interests and needs in order to develop different
options to reach an agreement. All parties and the mediator must maintain confidentiality throughout the
media­tion process and thereafter.
The role of the mediator is to be a middle person intervening between the disputants but without making any
personal suggestions on how he thinks the dispute ought to be resolved. The mediator therefore plays the role
of a ‘dispute doctor’ initiating the healing process.
In the process of selecting a mediator, each party should consider what role they want the mediator to play - a
more facilitative role or evaluative role. Parties also need to choose if they want a mediator with a specific
training and experi­ence for instance an engineer in construction matters or a chartered accountant in
financial matters. It is important to remem­ber, however, that the mediator can only assist the parties in
reaching an agreement and forming a contract without imposing or suggesting any of the terms to be
incorporated in the agreement.
Thus, a mediator is a neutral intervener who operates as a coach. The mediator enjoys enormous freedom in
persuading disputing parties to pay attention to each other’s interests and to consider the elaborate range of
possible settlement options. Although an individual’s own values might lead to refusing to serve as mediator
in certain disputes, a person must acknowledge that power and effectiveness as a mediator originate from a
steadfast commitment to neutrality - to helping the parties develop settlement terms that they find acceptable,
even if the mediator finds those terms objectionable.
For a mediator, it is easy to just say that the parties’ preferences shall prevail over his own perception of the
dispute. It is very difficult to act according to that precept. Most of us like to give orders. In our various roles
as parents, spouse, friends, supervisors, co-workers, colleagues or citizens, we are always ready to dish out
advice based on our long experience. For mediation to be effective, the mediator should shed his
authoritarian and paternalistic instincts. It compels the mediator and the disputing parties to take seriously our
commitment to democratic decision-making in our homes, businesses and communities.
Page 2 of 5
ROLE OF A MEDIATOR
Case Study: The Reliance Partition
When it came to the feuding Ambani brothers, Kokilaben had no other option but to resort to distributive
bargaining of dividing equally the fortunes of the humungous empire of the Reliance Group which was built
under the leadership of Late Dhirubhai Ambani. In June 2005, Mukesh and Anil Ambani signed a MoU to
reorganise Reliance Industries, in order to take over reins of different assets and businesses of the group
under their individual domain.
The most significant aspect of the MoU was that RIL promised to supply 28 million cubic meters of gas for
17 years at $2.34 mm Btu to Anil Ambani’s RNRL. However, the MoU came under dispute subsequently in
2007 on government setting up a price of $4.20 mm Btu for gas contracts in the KG Basin fields.
The core business of the group in the form of energy and petrochemical business was pocketed by Mukesh
Ambani, while the junior Ambani inherited Energy, Financial services in form NBFC business and a newly
developed but fast emerging Telecom business of the Reliance Group. At this point in time, during the
process of de-merger, the fortunes of the group were distributed equally between the two estranged brothers.
Anil who had finance-related acumen was more than content while inheriting business of Reliance Capital,
apart from group subsidiaries such as Reliance Infrastructure (Power business), Reliance Communications
(Telecom business) and not to mention RNRL - somewhat a shell company with interests in marketing of
natural gas. On the other hand, Mukesh Ambani was happy with the group’s core business of Petrochemicals
where Mukesh excelled in terms of technical know-how and interests.
Both the brothers made efforts to expand and diversify their businesses post de-merger. Anil Ambani had
dreams to construct a mega Rs. 28000 crore power project at Dadri powered by a cleaner fuel in form of gas,
in contrast to coal fuelled projects under the portfolio of Reliance Power. Anil also diversified with megainfrastructure projects including metro rail projects under the portfolio of Reliance Infrastructure. The Junior
Ambani also became active in the space of Media and Entertainment by acquiring Ad-labs Films Ltd.Mukesh
Ambani moved along the lines of his traditional strength of Petrochemicals business. He came up with a new
company in the form of Reliance Petroleum (RPL) and created the world’s most envied Petroleum Refinery in
Jamnagar. Later, this company was merged with the parent company Reliance Industries. Mukesh also came
up with subsidiary involved in new-age concept of Retailing under Reliance Retail, Reliance Trends, Reliance
Gems & Jewels and Reliance Digital.
At the time of de-merger, both the brothers departed amicably with equal distribution of the Group’s
fortunes between the estranged brothers. From here, it remained on both the brothers as to how they expand
their individual empires along with the crucial support of their shareholders and other stake holders. Even as
both the brothers started off as equals, their groups under the leadership of individual Ambani brothers have
moved forward in their respective line of businesses but in different directions of claiming fortunes.
However, even after enforcing the mother of all settlements between her sons, Kokilaben still controls 40%
of the family’s share in the Reliance group, including her two daughters’. She can use her stakes as carrot-orstick to prevent the brothers from fighting again.
What do we learn from Kokilaben’s solution? Think of her as a mediator who resolved a dispute. The answer is on
the next page.
Source: http://trak.in/tags/business/2010/05/11/reliance-ambanibrothers-past-present-future/ (last accessed in April
2021).
The Different Hats of a Mediator
Page 3 of 5
ROLE OF A MEDIATOR
The mediator is not a judge and does not render a decision or impose a solution on any party. Rather, the
mediator helps those involved in the dispute talk to each other, allowing them to resolve the dispute amongst
themselves. The mediator manages the mediation session and remains impartial.
People famously say that a woman is not just a woman. She takes on various important and life changing roles
in her life. She is a daughter, mother, wife, daughter-in-law, sister, niece, grand-daughter and in the present
day a successful professional. Like a woman, a mediator is also not ‘just a mediator’. At every stage of the
mediation process, the mediator assumes significant and varied role which he plays to facilitate a resolution
between the disputants.
(a) Communicator: We often do not listen to what others are saying to understand them. We listen to them only
to prepare our reply to counter what they are saying. This is very common between disputing parties. They
have made up their mind and they are reluctant and almost unwilling to change their perception about each
other. In such a situation, the mediator must transmit positions, ideas, emotions and convictions in such a
way that they understand each other. Mediators must also realise that people frequently communicate
indirectly.
Parties sometimes fail to reach settlement not because what is said is objectionable but because the language
in which statements and proposals are couched triggers fear or automatically generates another negative
response. The mediator’s function in such a situation is to reframe communications into language that
increases the probability of a favorable response and understanding instead of retaliation. The mediator never
camouflages or eliminates information when translating; the task is to reduce the sting of ill-chosen words.
What do we learn from Kokilaben?
As a true mediator, Kokilaben identified the strengths and weaknesses of each party. She understood the
underlying interests of both the disputants - Mukesh Ambani and Anil Ambani sought individual recognition
for their abilities and absolute control over their domains. Kokilaben achieved this by dividing the empire
based on the expertise and personality of each brother. Both were given equal potential to prove their talents
and equal potential to grow. However, the final settlement was futuristic. It did not leave anything to chance.
Kokilaben retained mammoth control to diffuse any dispute which may arise in the future.
(b) Chairperson: Every mediation session is as important as a scheduled business meeting. The mediator must
structure this meeting to facilitate discussion on contentious issues in a time bound manner. The mediator is
responsible for working with the parties and their representatives and scheduling the number, time and place
of meetings, for establishing the format of each meeting and the number of persons who participate, and for
arranging for making computer, photocopying, telephone and other support services available for the parties.
Substantively, the mediator is responsible for focusing the discussion to the disputed issues, controlling
participant behavior and sustaining a positive conversational dynamic throughout the meeting between the
disputing parties. A mediator performs this function in every dispute, although the extent to which it applies
varies with the situation.
(c) Stage Manager: This is one of the most modern styles of mediation. When the parties are clueless about the
undercurrents of their dispute, the mediator asks many questions about the facts and evidence in the case.
The mediator then uses these questions to probe the parties’ perceptions and positions. The mediator
primarily focuses on the process and induces the parties to talk about liability, costs, damages, verdicts in the
area, risks, high-low average values for the case, perceptions of the society, for example drunk driving. The
mediator then employs multiple joint sessions, assists and encourages the parties to communicate directly and
be their own solution finders. Like a stage manager, the mediator works behind the stage outside the sight of
the audience and sometimes even the actors (in this case the disputants). The mediator should not use
Page 4 of 5
ROLE OF A MEDIATOR
coercion or ‘arm twisting’ to force settlements. If he cannot mediate a settlement, he will mediate the process
so you always obtain some results from the mediation.
(d) Clown: Many times, the temperature in a mediation room reaches peak and the parties to a dispute may
come to a breaking point. At such tense moments when the emotions of the parties are scattered all over the
mediation room, the mediator diffuses the tension. Many times the mediator acts as a clown and brings
eternal optimism in the face of failure or emphasises on the need to living life to the full in a society that
praises efficiency, success, achievement and productivity. The mediator, like a clown, requires the skill of
improvisation on the spot. No matter how much a mediator prepares, you never know how the disputing
party will react and how the situation will have to be countered and improvised to act as a tool and not a
hurdle in the mediation process. Like a clown, sometimes a mediator has to be therapeutic and bring a smile
on the face of a disputing party who sees no light at the end of the tunnel.
(e) Educator: The mediator must understand the technical aspects of each proposal and empathise with the
aspirations of the parties. Like an educator who must understand the comprehension capabilities of its class,
the mediator must be able to effectively convey that information - using language, descriptions and
explanations to make the parties understand and enable them to act based on their enhanced understanding.
A mediator also teaches and models negotiating behavior. Sometimes parties assume that negotiating requires
certain types of conduct, such as shouting, lying or belittling an individual, or simply demanding a proposed
solution without providing an explanation. A mediator, as a coach, educates participants - both parties and
their representatives - about constructive negotiating behavior.
(f) Translator: When necessary, the mediator can help by rephrasing or reframing communications so that they
are better understood and received.
(g) Agent of Reality: If a party’s proposal appears impractical or inflated, the mediator must help test its viability
and ultimately emphasise that in light of the discussion the proposal appears unobtainable. The mediator must
be able to identify for each party what is doable in light of the interests and resources of the other parties to
the discussion.
The mediator should not reduce the reliability of the process by exploring proposals that are impossible or
outrageous. The mediator should not be so thorough as to believe that the parties ought to consider in detail
every suggestion or offer that is made. Many times the parties get stuck on events that have happened in the
past and cannot be reverted or nullified. The mediator serves the parties well by eliminating fruitless
discussions that will never advance a negotiated agreement.
(h) Guardian of Durable Solutions: Even in our personal capacity of a friend or family, we have a tendency to
think that we can offer an instant solution to a person’s problem. However, we tend to forget that what works
for us may not work for the other person. The mediator should not impose on the parties his own judgment
or preference as to how a problem should be resolved. But the mediator must consider the consequences of
what people are agreeing to and try to ensure that the agreement they develop will last.
(i) Questioner and Clarifier: The mediator explores issues between the parties and confirms each other’s
understandings to ensure that the participants and the mediator are on the same page in relation to the
dispute.
(j) Resource Expander: A mediator must increase the range of resources that parties use to resolve their dispute.
She can do this by generating additional information germane to the controversy, suggesting new ideas for
settlement when the parties are stuck, setting up meetings between the parties and individuals to whom they
had previously lacked access, and leveraging other services that can help the parties resolve their concerns.
Page 5 of 5
ROLE OF A MEDIATOR
(k) Scapegoat: The mediator can be the lightning rod for the parties’ frustrations and concerns. The mediator
sometimes serves as the post on which disputing parties hang and even overburden excuses. The parties tend
to vent out their frustration or blame the progress in a mediation on the mediator. This can however also help
the party re-direct the vengeance they feel towards each other.
(l) Neutral facilitator: The mediator may also be required to play the role of a facilitator. In many ways,
faciliatation and mediation are similar, but in the simplest of ways, they are drastically different. Facilitation is
used primarily as at a pre-conflict scenario. They step in before any conflict has crystalised to aid the parties to
avoid the conflict and have them work collaboratively towards their common goal. It is often used when
parties are to have a long-term collaboration to accomplish a common goal.
(m) Impartial Moderator: An impartial moderator is the person who runs a meeting, often at the pre-conflict
stage. A moderator often understands the issues to be discussed but is most effective when he or she has
done a thorough job of preparing for the meeting. A successful moderator is comfortable with the goal of an
open dialogue without a predetermined conclusion. It is essential to the credibility of the dialogue that
moderator does not direct the outcomes of the dialogue. The moderator comes with an agenda to the table
with regard to the process of the session which is to facilitate a constructive dialogue among diverse members
of the community who do not often communicate with each other. They are like skillful hosts who keep a
party lively without themselves being the center of attention.
(n) Protector of the Process: The mediator is responsible for protecting the integrity of the mediation process as a
useful vehicle to help parties resolve disputes. Sometimes a party has no genuine interest in talking with others
about what she is doing or planning to do but is merely using the mediator and the process as a tactical decoy
to help achieve an end. The mediator must promptly quash any such effort.
These ever-changing hats constitute the mediator’s job through the mediation proceedings. They make a
mediator’s presence a value done, although they certainly are not designed to help win a popularity contest. At
the end of the day, what is important is that the parties must live with the agreement, not with the mediator.
The mediator is a catalyst in the mediation reaction. A mediator’s participation affects the dynamics of how
disputants interact with one another. The mediator cannot be negligent in executing his tasks. The mediator’s
disinterest can increase tension, antagonise parties, and shatter the possibility for agreement. In other words, a
mediator can do permanent harm to the disputing parties’ relationship. The mediator must perform the job
conscientiously and constructively to help parties reach acceptable terms of settlement.
End of Document
QUALITIES OF AN EFFECTIVE MEDIATOR
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
QUALITIES OF AN EFFECTIVE MEDIATOR
A mediator is the mascot of the mediation process and must symbolise all that mediation stands for and
claims to cater to. Hence, the mediator must have all or substantially many of the following qualities:
(a) Neutral: The mediator helps parties identify solutions that they find acceptable without ganging up on
anyone. A mediator should have no preference that the dispute be resolved in one way rather than another.
Every disputant would prefer to have a mediator who always supports her viewpoint. But since a mediator
cannot do that for everyone, each party wants someone who at least is not working against him. If a mediator
is not neutral, then there is no reason for the disputants to trust him.
How the First Genocide of the World was Averted by a Mediator
The sequel to Mahabharat is the story of Parikshit, the grandson of the Pandavas. He was the son of
Abhimanyu and the grandson of the great archer Arjun. Parikshit’s son Janmejaya was curious about the way
in which his father had died. Once, he enquired his ministers of the events that led to his father’s death. Then
the ministers told him the story of Parikshit’s life and his achievements till the day he died. The ministers told
Janmajeya that Parikshit was a just and noble king, an administrator who looked after his kingdom well.
Parikshit had inherited his goodness from Yudishthir and valour from his forefathers Abhimanyu and Arjun.
Parikshit did not have enemies and did not feel the baser instincts of greed or jealousy towards other rulers.
The great archer Guru Kripacharya was his guru in archery. He was a favourite of Lord Krishna. He ruled for
60 years before his death and left Janmejaya as his successor to the throne. Janmejaya was still not satisfied
and told his ministers that they had not answered his question, which was how his father had died.
He said that all the rulers of his clan had been noble and just and were devoted to the personality of godhead.
However, what he wanted to know was how his father was killed.The ministers explained that in the fag end
of his life, Parikshit handed over his throne to his son Janmajeya. He locked himself in a tall tower and
isolated himself from the rest of the world. For some unknown reasons, he was terrified, unable to sleep and
eat. To allay his fears, he listened to the discourses of Sage Suka, the son of sage Ved Vyas who wrote the
Mahabharat. On the seventh day, Parikshit bit into an apple out of dire hunger. The Naga Takshak who was
hidden inside the apple in the form of a worm came out, instantly transformed into a serpent and bit
Parikshit. As predicted Parikshit died instantly of snake bite.
Upon hearing the story, Janmejaya went mad with rage. He was filled with a desire to avenge his father’s
death. He decided to do something to punish the snakes for having killed his father. He ordered all the priests
of his kingdom to perform the Sarpa Satra, a yagna which had the power to kill and annihilate all the snakes
Page 2 of 6
QUALITIES OF AN EFFECTIVE MEDIATOR
from the world. As the priests started the yagna fire and started chanting mantras, the snakes started feeling
weak and burning.
Vasuki, the king of snakes was very worried at the turn of events. He knew about the death of Parikshit and
he also knew that annihilating the Nagas from the world would not make the situation better. Besides, there
was a reason behind Parikshit’s death. He sent his nephew Astika to speak to Janmajeya.
When Astika reached the venue of the Sarpa Satra, he requested Janmajeya to stop the yagna. Janmajeya asked
him who he was. Astika told him that he was the nephew of the Naga king Vasuki. Janmajeya was further
infuriated. He told Astika that he would not stop the yagna at the behest of one of the people who had killed
his father.
At this Astika told him the story of his birth. Astika explained that he was not a Naga himself. In fact, he was
born to Rishi Jaratkaru, a human like Janmajeya himself and to a Naga woman, a Naga like the one dying in
the snake sacrifice. Hence, he was a neutral person.
Upon this Janmajeya was convinced of Astika’s credentials. Astika told Janmajeya the full story of his father
Parikshit’s death. Astika told him that Parikshit, like his great-grandfather Pandu, was very keen about
hunting. Once, Parikshit was chasing a deer through a forest. Everytime he aimed at the deer, it would
manage to escape. As the chase became more interesting, Parikshit left his hunting party behind and followed
the deer deep into the forest. Once deep inside the forest with no sign of the deer, Parikshit felt tired and
thirst. He came across a sage in deep meditation. The sage had taken the vow of silence.However, Parikshit
did not know this. He asked him again and again where he could find water to quench his thirst and some
food. The sage did not answer him back. To insult the sage, Parikshit picked up a dead snake and placed the
dead snake on the shoulders of the silent sage.
A student of the sage saw the insult done to his Guru. He cursed Parikshit that he would die of snake bite.
Astika concluded the story by telling Janmajeya that his father’s death was caused by his own actions. But
Janmajeya was not satisfied. He asked Astika why Naga Takshak agreed to take upon this dreadful task and
kill his father.
Astika explained that long ago, Janmajeya’s grandfather Arjun had burned the forest Khandava Prastha to the
ground to build the city Indraprastha, the capital of his kingdom. The forest was home to many Nagas.
Consequently, many Nagas died when the forest was burned. At that time, Takshak had sworn that he would
kill Arjun or one of his descendants to avenge the death of the Nagas. The killing of Parikshit was his revenge
for the thousands of Nagas burned with the Khandava Prastha forest.
Janmajeya was silent. He contemplated over what he had heard. He ordered the priests to stop the Sarpa Satra
immediately.
(b) Impartial: The mediator should not develop bias in favour of any one party. There is a ground rule of
mediation which many times mediators do not follow. This is one of the reasons mediation sessions should
be begun with a joint mediation session rather than private caucus with only one party. Sometimes a disputing
party may request the mediator for a private conversation in the beginning of the mediation. As a rule of
thumb, the mediator should avoid a private conversation before establishing the facts of the case through
joint discussion. This helps the mediator maintain a balanced view of the problem. Similarly, the mediator
cannot convene meetings at sites that are inconvenient to some but advantageous to others, persistently
encourage parties to consider settlement terms that benefit one side only, address some persons informally
but others by title, ignore the special needs of parties with disabilities or overtly treat parties with disabilities
differently.
Page 3 of 6
QUALITIES OF AN EFFECTIVE MEDIATOR
(c) Flexible: A mediator must promote, not reduce the fluidity of the discussions and the possibilities that can
emerge from the discussion. If a party makes a casual remark indicating a change of position on an issue but
the mediator refuses to discuss it until the current agenda item is resolved, the mediator’s rigidity becomes the
source of the lack of progress. The mediator must manage the process and chair the discussions, but she must
not do so in a manner that restricts the scope of dialogue between the parties. The mediator must not reject
solutions solely on the grounds that he thinks they are not sustainable or not ‘good enough’. The mediator
must not evaluate the party based on his standards of how a dispute ought to be settled.
(d) Objective: A mediator must be able to surpass the eloquent speeches and strong emotions of the parties. The
mediator must analyse proposed solutions with detachment to assess their strengths and weaknesses
accurately. The mediator should not be influenced by his own past experiences to decide what the parties
should decide for themselves. The mediator should also assist the parties to develop a more objective view of
the situation.
(e) Imaginative: The parties come to a mediation session because they have been unable to negotiate a
sustainable solution for themselves. Disputing parties can get so wrapped up in arguing over trivial matters
that they overlook obvious solutions. So, in a way mediation is artistic negotiation. If a mediator cannot
generate innovative ideas and positive perspectives, the mediator will get entangled in what the parties say
instead of what can be made out of the problem.
How many mediators does it take to change a lightbulb?
Well, let’s unpack that shall we?
First of all, let’s be clear that it isn’t the mediator’s function to change the lightbulb. The mediator will explore
with the lightbulb how it feels about the on and off nature of its job, its unhappiness at always having to work
nights, and its relationships with the other parties, including the new lightbulbs that it feels are a threat to its
position.
The mediator will talk to the new lightbulbs, reframing and normalising their observation that the principal
lightbulb is completely out of its box, and identifying that their real issue is that being picked on one at a time
constantly undermines their team spirit. The darkness seems quite hostile to all the lightbulbs and keeps
telling them to go and unscrew themselves. The mediator will allow it to vent its anger and express its distress
at how it always feels unwanted.
The mediator will help guide the darkness and the lightbulbs, both new and mature, to a solution reflecting
their new understanding of each other. Bright sparks will realise that you’ll have to be left in the dark now
because the final outcome is confidential.
Source: http://www.samoaobserver.ws/other/community/9424-lightbulb-moments-for-mediators (last accessed on 8 May
2015).
(f) Articulate: A mediator must be verbally astute to communicate the thoughts, perspectives and proposals of
one party to another. A mediator must choose her words wisely. People grow weary of listening to mediators
who cannot state matters clearly and intelligibly.
(g) Intelligent: Parties are looking to the mediator for assistance. Although parties must educate the mediator
about the specific problem, they do not want to be handicapped by a mediator’s slowness of mind.
(h) Empathetic: We have already discussed the difference between empathy and sympathy in chapter II. For a
Page 4 of 6
QUALITIES OF AN EFFECTIVE MEDIATOR
mediator being empathetic is of utmost importance. The mediator must be able to appreciate the perceptions,
fears, thoughts, history, social and familial pressures that underlie each party’s proposals. Parties do not need
someone to tell them to love one another, but they do need to feel understood. They want help resolving
their practical concerns in the real world of power, rights, obligations and possibilities - not in some utopia.
The mediator’s capacity for empathy gives them confidence that the alternative solutions they are exploring
with the mediator will not ignore their needs.
(i) Effective Listener: Most disputes arise because the disputing parties are not effectively listening to what each
other conveyed at one point or the other in their relationship. A mediator must not just hear but also
comprehend and analyse the concerns of all parties. If a mediator is constantly talking or asking questions, the
parties will not believe he is interested in understanding their problems as they see them. A mediator should
not be distracted when parties talk. Use of electronic devices inside the mediation room should be strongly
discouraged not just for the disputing parties but also for the mediator.
(j) Persuasive: A mediator must be forceful enough to convince disputants to be reasonable, flexible and to give
the other disputing party a fair chance to express itself. Parties do not want a compliant mediator who merely
accepts on faith the claims of the disputants and then exhorts them to find a way to resolve their difficulties.
(k) Respected: A mediator need not be famous or from some authoritative background. However, a mediator
should be able to generate respect for himself in the minds of the disputing parties. At the very least the
mediator should be a capable individual whose presence does not constitute an insult to the parties. Respect is
of course often confused with fear or compliance in India. It is also wrongly assumed that a person who has
held an important government position will automatically be respected by the parties. A mediator must earn
his respect not based on his illustrious past but through his present conduct during the course of the
mediation proceedings.
(l) Honest: The mediator’s integrity must be beyond reproach. Since the parties do not always trust each other,
they must be able to trust the mediator. No one will trust someone who misleads or deceives. It is also the
mediator’s job to help the parties get a reality check. He must not be afraid to the disputing party a mirror and
confront the truth.
(m) Sense of Humour: A mediator must be able to smile and laugh, both with others and at himself. The skillful
use of humor can put people at ease, relax tensions, or make a point in a subtle way. Since the number of
people who bring a smile on other’s face decreases day by day, a mediator with a sense of humour can
develop a better connect with the parties. This can help put the party at ease and discuss its underlying doubts
and fears more freely. However, a mediator should not make an individual party the object of ridicule or the
victim of one-liners, nor should humorous remarks be at the expense of particular groups or classes of
people. The mediator should avoid using cultural stereotypes as a joke. The mediator should not make the
mistake of believing that serious business cannot be conducted with some laughter.
(n) Reliable: If the mediator says he will do something, for example, gather certain information, contact
particular individuals or prepare a draft of the agreement, the mediator should deliver his commitment. Parties
do not need a mediator who promises but does not deliver.
(o) Skeptical: The mediator must be comfortable operating in an environment where he entertains all
information provided but remains healthily skeptical of its accuracy. Conflicting accounts are the norm in
mediation.
(p) Patient: Every mediator knows that the shortest route to a settlement is not a straight one. A mediator must
be prepared to manage the discussion through all the side streets and one ways that lead eventually to that
destination. The disputing parties are generally looking for someone who will assist them no matter how long
Page 5 of 6
QUALITIES OF AN EFFECTIVE MEDIATOR
it takes. They do not want a mediator to tell them that their matter must be resolved in twenty minutes
because he has to leave for a business meeting or tennis date. They do not want a mediator who acts like a
paid administrator who simply processes their dispute along with hundreds of others without any special
consideration and sometimes without even a minute of serious thought. They want to be heard. They want to
express their concerns in their own language. Disputing parties come to mediation because they are not
effective communicators and the miscommunication has led to the dispute. So they want to tell the mediator
what they believe is relevant to their dispute, rather than being restricted to responding to questions on a
form. All this takes time, and while no one’s patience is inexhaustible, the mediator should be the last person
to lose it. The mediator operates knowing that it often takes the first 90% of the total discussion time to
resolve 10% of the issues and the final 10% of the time to solve the remaining 90%. The lesson is clear - the
mediator cannot force a settlement; he must be prepared to take the time to listen to concerns and move the
disputants toward agreement at a measured pace.
(q) Non-defensive: A mediator must be able to absorb a party’s venting frustration and criticism of the process
or of the mediator. No apologies are required for best efforts, but the mediator must know when to take
abuse and blame without comment and when to confront it.
(r) Able to gain access to resources: A mediator must have sufficient energy and stature to gain access to those
resources that are necessary or helpful for resolving the dispute. The parties might need to convey their
concerns to the company president, mayor, governor, school superintendent, or some other official with
significant power to influence the outcome. If the parties themselves do not have access to such resources,
the mediator must fill the gap.
(s) Persevering: The mediator must have immense hope and perseverance. This does not mean however, that a
mediator must be naïve and not recognise if there is no sign of progress. The mediator must be intrinsically
prepared that every discussion which may last for either three minutes or three months proceeds by spits and
spurts. Each discussion starts and stutters. It is likely that the disputing parties will become exasperated when
they will feel that they take three steps backward for every two steps forward. Sometimes when the disputants
will feel that the agreement is within their grasp, something may happen which will set back the prospect for
settlement. But in all these situations, the mediator cannot quit. The mediator must go beyond the
exasperation born out of fatigue and continue to press the disputants to clarify details or re-examine the
strengths and weaknesses of their proposals. He must be prepared to go the distance without really knowing
how far that is.
(t) Optimistic: A mediator must always be upbeat and enthusiastic of the outcome. The mediator must have
internal positive energy which should charge the discussions with an electricity which gives people hope and
confidence that it is possible to resolve their concerns. He must inspire them to believe in their ability to
shape their own future. Consider a mountaineer who must cross a crevasse if he wants to survive and see the
light of next day. Is it possible? If we go by only the objective facts available, the picture is not very
encouraging. To accomplish the task, the mountaineer must cover a greater-than normal distance wearing
heavy boots in inclement weather. But these ‘facts’ do not factor in the climber’s will power and his belief that
he can achieve the feat. Surely, the success of the leap will be propelled by the mountaineer’s will power and
belief that success is likely. A mediator must provide this positive element to the dispute settlement
discussions. But a mediator does not serve the parties well if he is a naive optimist. The mediator must be
hopeful but realistic and candid with all parties about the likelihood of success and the big role the parties will
have to play for the mediation to succeed. Also, the mediator should not confuse being realistic with being an
automatic ‘this-is-not-possible-man’. Nothing is more discouraging to disputants than always to be told why
something cannot be done or is not possible. Most people dislike the idea of being involved in a dispute. They
want it resolved, gone from their life and forgotten like a bad dream. On top of being embroiled in a dispute,
the disputants do not need in addition someone to reinforce their misery by reminding them of the
hopelessness of their situation.
Page 6 of 6
QUALITIES OF AN EFFECTIVE MEDIATOR
End of Document
STAGES OF MEDIATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
STAGES OF MEDIATION
Mediation is divided into three phases, Pre-Mediation, Mediation, and Post-Mediation. The second phase,
which is the actual mediation process, comprises of five stages.
Phase I: Pre-Mediation
Setting the room: Ensure that the parties are facing each other and that the mediator’s chair is positioned
between both the parties.
Review the case material: The mediator must prepare and read the case file or information sheet about the dispute
so that he is familiar with the names of each party, contended facts by each party and all preliminary
background information required to have a grip on the basics of the case.
Appropriate appearance: The mediator’s appearance, manner and clothing must show respectability, leadership
and capability to control the environment of dispute resolution between the parties.
Confirm the attendance: The parties must be given sufficient notice of the date, time and venue of mediation
proceedings. The parties must be given a reminder message a day before the proceedings and their attendance
confirmed. If one of the parties is unavailable, the other party must be informed reasonably before time.
Phase II: Mediation Process – Five Stages
1. Stage 1: Introduction - Establishing Structure and Ground Rules
In this stage, the mediator must focus on establishing a structure to the mediation and ground rules.
The mediator must take the following steps:
1. Welcome the parties
2. Introduce yourself as the Mediator
3. Explain the mediation process
4. Describe the mediator’s role and the parties’ role
5. Affirm that the mediator is a neutral party
6. Emphasise that the process is completely confidential and that the parties are bound by
confidentiality
7. Establish basic ground rules
Page 2 of 3
STAGES OF MEDIATION
8. For commercial disputes, verify whether the person representing the corporation has been duly
authorised for the purpose.
9. Clear any doubts which the parties may have
10. Ask the parties how they would like to be addressed.
2. Stage 2: Joint Session – Meet with Both Parties to Determine Issues and Set Agenda
It is an open discussion where each party is allowed to narrate their side of the story without being interrupted
by the other party or the mediator. It is time for the mediator to study the body language of the parties,
explore the information being provided by the party, understand their perceptions and feelings.
1. The mediator must attempt to gather as much information as possible in order to understand the
conflict.
2. The mediator must attempt to identify the underlying issues and critical interests to the dispute.
3. The mediator must keep the environment of the mediation controlled through specific techniques of
communication.
4. The mediator must make a list of all the critical issues for discussion.
5. The mediator must create a common ground for assisted negotiation between the parties.
6. The mediator must begin to brainstorm possible solutions which can be discussed with the clients.
3. Stage 3: Caucus – Separate Confidential Sessions with One Party at a Time
The mediator should try to discover hidden issues, interests and individual goals of each disputing party.
Caucus is where the mediator meets each party separately to extract confidential information, underlying
issues and interests. It provides a safer, less stressful environment for the parties. The mediator must try to
gain confidence of each party by reaffirming that he is bound by confidentiality. The mediator must make the
party feel comfortable so that they begin to freely communicate with the mediator and express their real
concerns and priorities.
The mediator must not share any confidential information obtained through caucus with the other party
unless there is voluntary consent. He must encourage the parties to think creatively. The mediator must work
on future interests. He must evaluate and define alternatives and explore their consequences.
4. Stage 4: The Agreement – Parties Meet Together to Finalise Terms
When the parties are ready to settle after carefully evaluating alternative solutions to the conflict, the parties
get together again to clarify the terms of the agreement. The terms of the agreement must be clear, precise yet
comprehensive and cover all eventualities and underlying interests. The agreement must specify dates of
performance of milestones and prescribe liquidated damages for non performance.
The mediators must ensure that the parties understand the terms of the agreement and are satisfied with the
conditions, timelines and issues covered under the agreement. If the agreement is short, the mediator must
read it out aloud. If the agreement is long, the mediator must summarise each sub clause of the agreement
before the parties.
The agreement must be finalised and signed by the parties. To maintain authenticity and validity of the
agreement, it must be executed on requisite stamp paper. If the agreement pertains to immovable property, it
may also be registered.
Page 3 of 3
STAGES OF MEDIATION
5. Stage 5: Closing – Willingness to go ahead
After the parties have signed the agreement, the mediator will:
1. Compliment the parties on their hard work, creative thinking, willingness to collaborate and concede
candidly.
2. If the parties do not come to an agreement, review any progress and terms of the agreement they did
reach.
3. Ask them if they want to meet again.
4. Thank the parties for their participation.
Phase III: Post-Mediation Phase
Mediator follows up with the parties and:
1. If only partial agreement, ask to reschedule a follow up to complete the mediation.
2. If the agreement is not accomplished by one of the parties, the other party can ask the mediator to
talk to the defaulting party.
3. If any of the parties have any questions about the agreement, they can contact the mediator.
End of Document
MEDIATION TECHNIQUES
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
MEDIATION TECHNIQUES
1. Neutral Re-Framing involves the mediator neutralising the parties’ comments by providing the mediator’s
own interpretation of the problem. To do this, the mediator restates the principal concept of a party’s
statement, leaving out the strong words and angry tones. Use this technique when the parties are full of anger
and they express themselves with very strong words, or when the parties verbally attack each other.
Neutral Re-Framing is the process of changing the way a thought is presented so that it is more likely to support
a possible resolution while retaining the fundamental meaning of the thought expressed. The mediator
reframes by restating what each party has said in a way that provokes less resistance or hostility; thus, it is
necessary that the mediator uses carefully chosen language. Re-Framing is particularly helpful during times
where the parties are not receptive to finding a potential solution, because it helps the mediator to create a
common definition of the problem that is acceptable to both parties, making the parties more open to solving
the problem.
2. Summarising is a technique whereby the mediator repeats what has been said to identify the topics of
discussion and address the concerns of the parties. Summarising is a useful tool to get the group’s attention,
organise the discussion, and clarify that everyone understands what has been said. An effective summary is
complete and accurate, while still being short. It is critical that the mediator use key terms and neutral words
when summarising.
3. Setting the Agenda, done during the Joint Session, consists of the mediator defining critical issues and
arranging the order in which each issue will be discussed. The mediator should read the agenda out loud and
wait for each party to agree to the agenda. Once all critical issues are established for discussion, a common
ground for negotiation can begin.
4. Acknowledgement occurs when a mediator has the opportunity to repeat back what they heard about the
stories, feelings and interests of the parties. Acknowledgment lets the parties know they have been heard and
demonstrates that the mediator was listening and understands the importance of each party’s statement
position.
5. Active Listening is a specific type of listening that involves paying respectful and focused attention to the
content and feelings of the speaker. In this way, the listener truly hears and understands the speaker and
conveys this to the speaker by clarifying the speaker’s thoughts. The difference between active listening and
passive listening is that an active listener involves verbal interactions and open-ended questions that reflect
back on what the speaker is saying, whereas a passive listener has minimal interaction and does not engage the
speaker further beyond what is initially said.
Page 2 of 4
MEDIATION TECHNIQUES
6. Re-Directing is a technique used when the mediator shifts the focus from one subject to another. This
technique can be used to focus on details of a dispute. Additionally, it can be used to focus on the general
issues or on each of the party’s interests.
7. Open-Ended Questions are those questions that cannot be answered with a simple ‘yes’ or ‘no’, but rather
encourage people to talk about whatever is important to them. In essence, open-ended questions invite the
parties to “tell their story” in their own words. Asking open-ended questions helps the mediator to establish a
relationship with the parties, gather information, and increase understanding of the situation. This technique
is helpful during the joint session to exchange information and find solutions to specific issues. When using
the open-ended questioning technique, the mediator should try not to overly control the direction of the
discussion with too many questions. Instead, the mediator should ask questions they would want to know if
they were in the other party’s position.
Open questions can have two major impacts on the process. They can encourage the parties to engage the
conflict and can empower the parties to craft their own unique solutions. These types of questions are
considered appropriate or process enhancing because they encourage the parties to open up, express the facts
of the conflict, and articulate their feelings. For example, the mediator might ask a terminated employee,
“What did you feel when your employer told you he was firing you?” This allows the aggrieved party to
express his or her emotions and creates the opportunity to feel heard.
Sometimes in replying to open questions, the party (possibly for the first time) is able to express his or her
emotions regarding the conflict. How the response is received is also important, e.g. an emotional outburst at
the beginning of mediation can relieve emotional tension and spur the parties forward, yet the same outburst
toward the end might spark an impasse. In practice, using broader questions at the beginning of mediation
encourages constructive venting to occur in a timely way, just as narrowing the questions during the final
stages can minimise the likelihood of a destructive outburst.
Finally, when using open-ended questions, the mediator must be prepared to listen to the response. The
easiest way to ask open ended questions is to evaluate whether your question is a ‘Wh’ question i.e. does your
question begin with ‘What’, ‘When’, ‘Where’ or ‘How’. Some examples are as follows:
•
“Help me understand what you meant by…”
•
“When did you feel that way for the first time?”
•
“What is important to you?”
•
“Why is that important to you?”
•
“How do you think this solution will help you?”
•
“Why do you think this fact is relevant?”
8. Silence is used to give the parties a break when needed. It allows the parties to breathe, rearrange their
thoughts and give them space when emotions are high.
9. Reality Check is also another tool used frequently by mediators. We could all use a reality check once in a
while. Reality Check brings the parties to see the real nature of their claims, positions and consequences. It
helps in situations when are stuck on an issue and are unable to reach any consensus. Reality checking
involves techniques used to adjust a person’s perceptions that do not conform to the realities of the situation.
In conflict resolution, it is a process that may be helpful when negotiations breakdown. Sometimes, a party to
a negotiation will think they have an alternative or option that is better than what they will get through
negotiation. If a party thinks they have a good BATNA, then they may refuse to agree to a settlement, causing
Page 3 of 4
MEDIATION TECHNIQUES
an obstacle in the negotiation process. If the BATNA truly is better for that party than the proposed
agreement, then the agreement will have to be abandoned, or changed to accommodate that party. However,
a party’s BATNA is often unrealistic. If a party is refusing to agree to a settlement based on an unrealistic
BATNA, then the mediator or opposing party must educate the reluctant party through reality testing.
By asking these questions, the party is forced to think carefully about aspects of the dispute they may not have
thought through yet. Also, if their perceptions or thoughts about certain things are not accurate, they may be
corrected when they try to answer these questions. In the end, reality testing can help get parties to the
negotiating table, and can help overcome stalemates when they exist.
The actual process of reality testing involves asking hard questions about each parties’ power and options.
Either the mediator or the opposing party must convince the resistant party that their BATNA is not as good
as it seems and get them to understand what will happen if they stick with it. There are many reality-testing
questions one may ask.
Reality Testing Questions:
•
What do you see as the strengths of the other’s case?
•
What do you see as the weaknesses of the other’s case?
•
What do you see as the strengths of your case?
•
What do you see as the weaknesses of your case?
•
What is your best-case scenario if you don’t resolve this with negotiation?
•
What is your worst-case scenario if you don’t resolve this with negotiation?
•
What is the most likely scenario if you don’t resolve this with negotiation?
•
Is that better than the most likely negotiated settlement?
Third parties can be especially helpful in this regard. They can take on the role of the concerned counselor,
who believes the client has miscalculated how best to achieve his interests. By getting the party to do a better
job of costing, the third party can sometimes get the reluctant party to agree to mediation, or a particular
settlement.
10. Brainstorming is used to generate options and alternative solutions for resolving disputes. It is used to
identify ideas, evaluate options, consider alternatives, stimulate creative thinking and maintain the relationship
between the parties. It is very important to disputing parties to come to the mediation with an open mind.
Brainstorming is a technique used in mediation to expand options available for settlement. The process of
brainstorming involves generating creative and innovative solutions which can be used to resolve a conflict
through unrestricted, frank and open discussion in which everyone is encouraged to suggest as many thoughts
and ideas as possible to reconcile their interests. Brainstorming works on the premise that the chances for a
successful settlement become higher as the options for possible settlement increase. In other words, the
number of options we consider with an open mind is proportional to the greater chance of success in
reaching a settlement.
While brainstorming in a mediation session, the disputing parties are encouraged to think out loud and out of
the box to suggest as many possible ideas for resolving the conflict as they can come up with, without
becoming too attached to any particular idea and without assessing or criticising anything that has been
suggested. It is important that the evaluation of each idea in detail is postponed. While the session is on, ideas
Page 4 of 4
MEDIATION TECHNIQUES
can build on one another. Once multiple options are identified and listed out, the work of actually considering
those options one by one in detail begins.
The result of a brainstorming session is a comprehensive list of possibilities for resolution of the dispute.
These items on the list of possibilities may or may not work. What is important is that none of the options
have been judged or criticised by any participant in the mediation process. Once the process of brainstorming
is concluded, the disputing parties begin the work of considering whether any of the options listed are realistic
enough and have the important potential to satisfy each disputing party’s interests. Brainstorming is a safe
process in which everyone is encouraged to think out loud and suggest imaginative ideas, no matter how wild
or unrealistic they may sound in the beginning. All the most impressive and helpful inventions in the world
were ridiculously imaginative at first. Who would have thought at a time when messengers like Phidippides
ran to convey messages that thousands of years later, people would communicate with each other over the
click of a button. Even Graham Bell, the inventor of telephone would not have imagined that a man called
Steve Jobs will convert a utility into a fashion symbol or a ‘must have’. By developing various creative options
before evaluating them, we expand possibilities and pave the way for solution emerges. By undertaking a
brainstorming session, a mediator can slowly extricate the disputants from their negative attitude of ‘there is
no hope’ and lead them to a problem solving and ‘there are possibilities’ attitude.
End of Document
INSIDE THE MEDIATION PROCESS
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
INSIDE THE MEDIATION PROCESS
The mediator’s arena is frequently muddy waters where finding your foothold is tough. In a way, his method
of work is like a homeopathy doctor who can diagnose your illness only based on the symptoms you tell him.
The knowledge at his disposal is limited to what the disputing parties tell him. The required information may
be flawed, ambiguous or unavailable - he can only guess. The mediator often has to navigate through mist and
rely not on hard information available with him but on intuition, experience and perhaps common sense.
However, as a disputant who wants his mediation to succeed, it helps to know what questions the mediator
would ideally like answered.
Generally, this involves four steps: (1) understanding what the conflict is about, (2) understanding who the
actors in the dispute are, (3) understanding the larger context of the dispute, and (4) understanding various
sources of power and leverage which are affecting the settlement of the dispute.
Going to the Roots - History and Causes of the Dispute
For a mediator to communicate effectively with the disputants, grasp on the content and history of the
conflict as it matters to the participants, including turning points and key symbols is a must. Some of this
history will be ancient and some of it will be made up.
It is important to understand what is being contested. Again it is relevant to understand the commonalities
among the different issues. Additionally, a conflict may have manifold expressions, being ‘about’ different
issues at different levels: emotional, financial, influence and recognition.
The continuing path of a dispute may also include many changing gears of key issues, with a new zone of
strife all of a sudden coming up whenever another issue is resolved. To fully understand the causes and
history of the dispute, the mediator should trace this path of contentions and strife to the roots.
Building Credibility
Mediators can build credibility with the parties involved in the conflict by developing expectations that the
mediator and the mediation process will be helpful for them to successfully address the issue being disputed.
Credibility may be personal, relational, institutional, procedural and substantive.
Personal credibility refers to the mediator’s personal ability and certain specific qualities which a disputing
party may expect in a mediator. Some of the personal attributes which the parties may seek in a mediator are
as follows:
•
Knowledge of the area in which he is mediating;
Page 2 of 12
INSIDE THE MEDIATION PROCESS
•
Originality of Ideas;
•
Ability to help the parties without imposing his own judgment on the disputed issue;
•
Sense of humour;
•
Patience and persistent attitude;
•
Ability to act unobtrusively in a conflict;
•
Ability to calm down aggression by a disputant.
Institutional credibility refers to the reputation of the organisation to which the mediator is affiliated. An
example of institutional credibility is national elections. If you hold your thought process for a moment and
ask yourself the name of the candidate you voted for at your constituency, 99% of us will not remember or
even know their name. However, if asked which political party you voted for, you will obviously remember
instantly. In advertising, this ability to attract attention is famously called a ‘brand image’. Mediation is not
different from advertising or the elections. A mediator gains instant brownie points or backlashing for the
institution he represents based on the disputant’s negative or positive perception of that institution. Once
mediation catches up in a country, institutional credibility is based on an organisation’s history of successful
performance in resolving the particular type of dispute for which the mediator is needed, a history of
unblemished impartiality of the personnel of the organisation, etc. Institutional credibility may be an important
factor in accepting or rejecting a mediator by the disputants. Mediators who wish to bank on the institutional
credibility of their organisation may:
•
Produce brochures elaborating the credibility and success rate of their organisation;
•
Offer examples of the types of disputes and the number of disputes they have already successfully
mediated;
•
Present credentials of memberships and accreditations;
Procedural credibility refers to the disputant’s belief that the likelihood of settling the dispute through the
process of mediation will be high. There are various factors which influence procedural credibility. If a person
has already settled a dispute through mediation to his satisfaction, the likelihood that he will again opt for the
process and more importantly, participate in the process wholeheartedly is more. If a person has a friend,
family or colleague who gives him good views about the usefulness of mediation, his procedural credibility in
the process will again be high. However, it is becoming a prevalent practice in India, especially in the area of
family disputes that people are being advised to participate in a mediation process only to ‘strengthen the case’
and tell a judge that the disputant is very much interested to settle the dispute but the other party is not. Such
people attend mediations with a strategy to be uncooperative and non responsive based on the advice given to
them by other professionals. As a result, even if the dispute can be easily settled, the disputing party ensures
that the mediation fails so that he can take such a plea before a court. There is no guarantee that taking such a
plea actually will help the disputant get more compensation. Sometimes it may even hamper his case but it is
the price a disputant pays to get what he thinks is ‘fair’ and ‘just’. Such practices, of course, reduce the
procedural credibility of mediation.
In building procedural credibility, the mediator should stress that successful settlement of dispute rests
primarily on the disputants themselves and that the best possible process or experienced mediator cannot
guarantee success for those parties who are entrenched in their positions and lack any motivation to reach
settlement.
Assessment of Positions and Interests
One of the main jobs of a mediator is to diagnose the issues that divide the disputants and the positions of
the disputants. Their perceptions both positive and negative about the other party as well as about themselves,
Page 3 of 12
INSIDE THE MEDIATION PROCESS
of the process of mediation and of course, of the conflict so far will be prime to their willingness to actively
participate in mediation. It is important to evaluate the cultural and personal factors which underlie their
positions.
The mediator should also distinguish between the positions affirmed and the underlying interests of the
disputing parties. A disputing party’s unresolved interests may continue to drive the dispute even if the issues
which appear on the surface and are being contested are settled. It is important to uncover the disputant who
will be benefitted by keeping the conflict going. For example, for some people, the dispute may be a source of
wealth or power or a means of avoiding justice. Some of these interests may be actually legitimate. Some other
interests may be satisfied by means other than dispute.
How do the issues, positions, and interests of the hostile disputant line up? Perhaps the hostile disputant
needs more security, but perhaps their claims of insecurity are just part of a strategy to gain control of the
state of affairs.
Analyse the Actors in the Conflict Drama
The mediator should examine each disputing party and the side actors like the parents, siblings, business
associates, business partners etc. directly involved in the conflict, including how they define themselves and
whether they possess any power or leverage to change the course of the dispute settlement.
The disputing party’s internal organisational structure is an important consideration. What is the hierarchy or
chain of command? Is the chain of command generally stable and effective? Which person in the change of
command has been sent to undertake the mediation on behalf of the organisation can tell a lot about how
seriously the organisation is taking the process. The concentration of power within the organisation should be
taken into account as well as how decisions are made and who participates in decision making including the
cohesiveness of the group and any existing or potential internal factions.
The mediator should identify the top leaders and the basis of their authority (e.g., position, skill, potential to
lead after the conflict or popular following). It is important to evaluate how and to how many the leaders of
the organisation are accountable. How removed are they from the costs and consequences of the conflict? It
is helpful to consider the consequences for the conflict of a change in the top leadership.
Midlevel leaders may be significant to a negotiation. In profiling the middle level, the mediator should
determine how independent its members are from the top leadership and identify the relevant social networks
to which they may be connected (e.g., the business community, professional associations, academic institutions
and social circle).
Spoilers may attempt to scuttle a dispute resolution process. The mediator should try to determine their
interests for doing so, the support they might command, and the channels they might use to obtain resources
to continue the conflict - support from other stakeholders, friends or families for instance.
For a successful mediation, parties will require resources to conduct a negotiation effectively and the capacity
not only to reach decisions but also to deliver their promises. The mediator should assess the relevant skills,
resources, and influence of the different parties.
A mediator generally does not have the power to select the negotiating counterparts in a mediation process.
Being fully informed about the parties to the conflict will help a mediator devise a strategy appropriate for
moving those parties toward a resolution.
Identify & Spot Material Resources and Parties’ Control over Them
Adversaries may depend on different forms of power: for instance, control of material, control of resources
Page 4 of 12
INSIDE THE MEDIATION PROCESS
or wealth, popular support and legitimacy, external support. The mediator should pay keen attention to
adversaries’ keys sources of material resources, including but not limited to state assets, commodity exports,
predation on local populations, theft of humanitarian aid, and diaspora funding. Is the adversaries’ hold on
these resources secure and sustainable?
Significant non-material resources of the different parties, such as popular support, fear (of power holders or
of opponents), community cohesion, control of media, and endorsement by spiritual leaders should also form
a part of the mediator’s calculations & analysis. Interrupting or protecting or even diverting a flow of
resources might give the mediator strategic leverage. The mediator should explore helping parties gain and
secure access to resources by means other than violent conflict, aggression and should determine what forms
of resource-sharing are feasible. The mediator should also identify the resources currently deployed for
conflict that might be turned toward peacemaking.
Assess the Relative Strength of Parties and Pattern of Change
The Mediator should analyse if any of the adversaries has the upper hand or edge in the conflict and whether
the situation is stable or dynamic. Ample power and self-sufficiency may make a party less susceptible to
pressure. Parties may also be well informed or misinformed about their relative strength. The Mediator should
introspect if different information alters interpretations of the balance of power? Understanding the power
equation between parties may help elites recognise a deadlock and thus accelerate the process of conflict
resolution.
Background, Position and Reputation of the Mediator
The profile of the Mediator plays a very important role in the process of mediation. Mediators can play very
diverse roles. Some mediators, for example, facilitate while others manipulate; some exert their political
authority and project their institutional muscle while others exploit their own weakness. Some mediators have
a very high profile and the full backing of a major power of national or international organisation. They
engage official representatives of conflicting parties and may have considerable resources at their disposal.
Others will have a much lower public profile. By contrast, so-called weak mediators such as nongovernmental or religious organisations have little political power of their own. The weakness however gives
them the opportunity of great flexibility. Unencumbered by a perceived political interest or official protocol,
weak mediators can conduct their activities with greater operational flexibility than governmental mediators
enjoy and can more easily gain the confidence and participation of opposing sides.
The Mediation Strategy should be Appropriate and Suiting to the Mediator’s Identity
A mediator’s strategy must be appropriate to his or her identity. Weak negotiators cannot throw their weight
around or control the situation. Neither can a powerful negotiator slip in a side door or whisper in someone’s
ears. Each type of mediator has specific assets, and those are the ones which he or she should deploy.
Building Trust & Faith
Credibility and trust are extremely essential to conflict mediation. No mediator arrives with these ingredients
in his pocket at the venue but definitely ruminates on the idea and skill of creating trust with the parties.
Credibility and trust are built over a period of time in relationships with the different parties to the conflict.
Standards of conduct that can help a mediator earn and maintain trust include performing competently,
consistently, and predictably; communicating accurately and openly with a balance between transparency and
confidentiality; interacting appropriately and with equal levels of proximity with all parties; and exhibiting
empathy towards the parties and commitment to the possibility of a solution and dispute resolution.
In any conflict, some level of distrust may remain and even be helpful. Besides encouraging reasonable
vigilance about the possibilities of being manipulated or misled, distrust can usefully disrupt excessive group
cohesion that might result in “groupthink” and a refusal to countenance new ideas. Distrust can be managed
through shared recording practices, reporting back to the parties about what has been discussed or decided,
and agreed-upon methods of monitoring and verifying actions that the parties have committed to take.
Page 5 of 12
INSIDE THE MEDIATION PROCESS
Develop and Strengthen a Broad Portfolio of Appropriate Skills
An experienced mediator can benefit from resources, which cover a wide range of topics, including the
following:
•
active listening, which reassures parties that their concerns have been heard and understood
•
conducting open-ended questioning to encourage meaningful answers
•
reframing proposals by paraphrasing and summarising them
•
describing a problem, including its symptoms and causes, before proposing solutions, and then
gathering all proposals before beginning to evaluate them
•
envisioning “possibility circles”—diagrams that chart the possible evolution of systems from their
present condition—and identifying steps necessary to achieve imagined futures
•
disaggregating and sequencing to promote movement: dividing issues into several parts, mandating or
delegating preliminary work to study groups, layering discussions or sequencing decisions
•
using matched conditional statements (“yes, if”) to define elements of a settlement
As might be expected, given the abundance of literature on the subject, there is no consensus on what
techniques work best in which situations. The field of mediation benefits from the variety of ideas on offer in
the universe. There is, however, a growing consensus about the need to complement experience, insight and
intuition with formal skills and training, and to do so before undertaking mediation practice.
Spot Cultural Differences
Different cultures communicate and negotiate differently. Cultural patterns are not homogeneous across any
grouping such as nation or ethnicity, and although they exhibit considerable continuity, they are subject to
change and adaptation. Nonetheless, culturally distinctive styles and expectations regarding expression and
interpretation are deeply relevant to a process of mediation. Mediators should not only be able to speak and
read the local language but should also be familiar with the local cultural styles of communication: for
instance, forms of courtesy; uses of humor; patterns of reciprocity; and ways of conveying respect, gratitude
or disapproval and of declining an offer or expressing criticism. Cross-cultural awareness and preparation will
make communication more effective and help the mediator avoid unintentional damage.
Another cross-cultural aspect of mediation is the perception of the parties of the mediator’s cultural identity.
Some aspects of the mediator’s identity (notably, nationality, ethnicity, religion, and gender) impact the
mediation. A mediator should put in some thinking as to how this might affect an intervention. The
mediation team should be designed with an eye to cross-cultural perceptions, as well as with regard for the
skill, experience and acumen of prospective team members. For example, the inclusion of women among top
mediators might encourage the parties to the conflict to put some women on their own negotiating teams,
thereby increasing the chances that women’s interests and issues will appear on the negotiating agenda.
Gather Information
The parties have lived with their conflict. They are familiar with its dynamics and tensions. They feel its
pressure. The mediator must discover the facts and history behind it as rapidly as possible.
The mediator gathers information with a purpose. It is the only way he or she can understand the dispute —
how the parties experience the “story” they tell. He wants to know what concerns, both substantive and
emotional, must be addressed for all parties to settle their dispute. The mediator will be not be able to learn
everything about the people he is serving but would be able to gain substantial information about the
concerned parties. His interaction with the parties is relatively brief; he will get a glimpse of only a small slice
of their lives. So, he focuses on discovering information that will lead to constructive dialogue move a step
Page 6 of 12
INSIDE THE MEDIATION PROCESS
further towards resolving the dispute. He prompts parties to describe the situation as precisely as possible so
that everyone—most importantly, the other side— has a full understanding of the challenge and situation. He
targets the concrete matters in which they are entangled— the issues. He pulls out common interests. He
extracts rules, principles, values, laws and customs that are important to the parties. He strives to have the
parties articulate and express their feelings and identify their options if the dispute does not settle.
To accumulate information effectively, mediators must do five things:
Effective Listening: Listening effectively to what someone is saying consists of more than just hearing
sounds. One listens to understand the message the speaker is trying to communicate or convey. To listen well
is to capture and analyse the entire message. Listening skills prevent one from short-circuiting or
contaminating that message sending process.
Here are some guidelines that a mediator can follow to insure he receives all that is sent:
Concentrate. Minimise distractions; wear comfortable attire; eat prior to mediating so hunger does not distract
you; put extraneous papers and cell phones away. Take notes selectively and objectively so as not to interfere
with the capacity to listen.
Maintain Focus. People cannot talk as fast as others can listen. A mediator should not use the overlapping time
to daydream or worry about something else. Good posture — with the mediator’s body oriented towards the
speaker and arms relaxed, neutral and open is helpful.
Be patient. One cannot hear, let alone be certain he has captured what someone else is saying, if that person is
not given a chance to complete his statements. Sometimes parties repeat themselves. Some speakers are hard
to understand. A patient listener allows a speaker the freedom and the room to tell his story — even if the
telling is less than perfect. This allows the parties to narrate their story to the mediator and develop the trust
on the mediator.
Don’t interrupt. In many occasions, one cannot listen while talking. It is tempting to interrupt a party by asking
questions or providing information, but such behavior both disrupts a speaker’s chain of thought and exhibits
unsolicited conduct that other participants might copy.
Do not be judgmental. Often one stops listening because he does not like what is being said, who is saying it, or
the way it is being said. He assumes he knows the entire story, the arguments to be made, and since he
disagrees with it, stops listening. A mediator cannot argue mentally with the speaker. Understand first, and
evaluate later rather much later.
Ask Helpful Questions: Most people, once they say everything they wanted and needed to say and feel
heard, become more flexible to hearing others. Many people, if they talk long enough, say things that are
inconsistent with their earlier remarks or suggest areas of possible accommodation. Those are the points the
mediator can use to encourage shifts and settlements. Thus, the mediator’s task is clear: keep people talking.
Different forms of questions elicit different information and emotional responses. The motive of the
mediator is to develop a rich information base in a short period of time in a climate that invites conversation.
How can a mediator get people talking, particularly if someone is reluctant, uncomfortable with language,
hesitant, nervous, diplomatic, very legally prepared or shy? He asks questions that invite the party to discuss
specific events or situations with which the party is familiar. These are questions that should be easy for him
or her to answer — in the sense that the party knows the information to share. Questions that include the
terms what, who, when, and where are particularly effective start-up questions. These questions throw open
ends for the speaker to start sharing information, but they are not intimidating or accusatory in tone. They
Page 7 of 12
INSIDE THE MEDIATION PROCESS
should help open the door of discussion so that the mediator can quickly follow up with open - ended
questions and bond with the parties.
Verbal Reinforcement and Clarification: A mediator actively seeks to ensure he understands the parties’
communications and demonstrate the same understanding to them. In doing so, he displays a level of interest
and respect that encourages disclosure and further communication. A mediator can ask questions to clarify
previous statements. He can attempt to summarise in his own words what was said. He can, in a separate
session with the party, try to confirm his understanding of what the party had said by identifying the emotion
that the statement exhibits or the priority ranking the party attaches to particular issues expressed.
However, a mediator should never try to show his understanding of what was said by simply repeating back
to the parties in their own words what they just said.
The mediator might properly conclude that it is important to summarise his understanding of the parties’
presentations to reassure them that he has grasped what they had wished to convey, what is at stake or to
establish his credibility by displaying mastery over the technical details of their proposal. But he must proceed
with care.
Mine the Conversation for “A Treasure”: Listening carefully, recording only targeted notes, using helpful
questioning formats and supporting parties’ communication are critical performance skills, but a mediator
must do more while accumulating information. He must know what he is listening for — what elements of
the conversation will allow the mediator to turn two monologues into a dialogue.
Listening to this statement, most people hear insults, put-downs and threats. But a mediator hears it
differently: he finds “gold nuggets” that are building blocks for a constructive and solution-oriented
conversation. What should a mediator be listening for?
Interests: Interests and needs are the silent, powerful movers behind positions that parties take. No dispute will
move towards a resolution if someone believes that his primary interests have not been respected, secured, or
advanced.
Negotiating Issues: Negotiating issues are those distinct matters or behaviors that frustrated a party’s interests
and resulted in the need for mediation. The issues become the subjects around which an agreement is built.
Issues constitute the bargaining agenda.
Proposals: Proposals are suggestions or offers for the resolution of issues. Like interests and issues, proposals
can be hard to hear if they are embedded among threats and insults. Proposals are exchanged between the
parties or the mediator comes up with a proposal keeping in mind the interests of all the parties and creating a
win-win situation for the parties for resolution of the dispute.
Feelings: Feelings are frequently hurt in an atmosphere where interests are frustrated, insults are felt, and
misunderstanding is the key issue. Once those feelings are expressed — and understood — they can be
addressed and often change.
Principles, Values and Rules: Most people are governed by values, principles and rules that guide them and
conduct their behavior. Laws (and our understanding of them) also provide an important guidepost. The
mediator listens carefully to learn the parties’ doctrines that govern their lives. The principles each party holds
dear will need to be reflected in the resolution.
These building blocks — and others noted in later chapters — are what mediators listen for. They enable a
mediator both to organise the information that is shared — or hurled — by the parties and distinguish
Page 8 of 12
INSIDE THE MEDIATION PROCESS
between those comments to which he will invite further discussion and elaboration and those that will drop
by the wayside. No other intervener or counselor listens to disputing parties in this distinctive way.
The mediator must remember that events affect different people differently. A mediator does not manage to
listen effectively if he always anticipates what someone will say, completes his thoughts for him, and assumes
that this person’s problem is the same as ones he has dealt with before, or “expedites” the process by asking a
series of questions. The mediator does not know what has happened. He wants people to state their concerns.
As they do, they not only enrich his appreciation of the situation but also help the parties understand each
other more clearly, perhaps for the very first time. Then it is the right time to move ahead.
During this early stage of the discussion, the mediator’s posture is to be as supportive and non-disruptive as
he can. The mediator should keep quiet and let everyone talk, and always knowing what he is listening for.
He must not act in haste. His patience will always be tested, if for no other reason than the parties might
believe that a mediator who is not talking or asking lots of questions is not “doing anything.” But that
perception will be effectively addressed shortly. Once a mediator is confident that the parties have shared the
landscape of their dispute, he moves confidently to help them reshape their understanding of the dispute and
the issues involved.
Develop a Bargaining Agenda
We can talk about only one thing at a time. If there are two or more negotiating issues to discuss, we must
order the discussion. Who decides what the sequence should be? On what basis do we select a negotiating
issue to be a priority?
The mediator plays an important role in establishing the order in which the negotiating issues are discussed.
She must be certain that the parties have provided sufficient information so that she can identify and frame all
the negotiating issues. From that foundation, the mediator develops a bargaining agenda, governed by one
overriding concern: discuss the negotiating issues in the order most likely to result in the parties coming to
better understandings and possible resolution of all issues. The creation of an agenda takes the dispute from a
relatively chaotic jumble of accusations, hurt feelings, and blocked interests to an organised group of topics or
questions that the parties can address. A simple, elegant and logical agenda boosts confidence of the parties
that the dispute may be manageable after all.
Logical Categories and Sequence: The mediator can divide the negotiating issues into various substantive
categories, assess which category of issue or issues will be the easiest to resolve, and then channel the initial
discussion to that category. She might divide issues into such categories as economic and noneconomic;
financial and behavioral; financial support, educational expenses, and parenting responsibilities; political, legal
and administrative; or chronological/reverse chronological development of issues. Different types of disputes
call for different categories, and the mediator must always consider whether the issues in dispute can be
grouped together into one category or dealt separately in helpful ways. The easiest place to start may be with
the negotiating issue that developed first in time, or, alternatively, with the most recent issue. The assumption
supporting this strategy is that the mediator can rapidly secure agreement from the parties on the first or last
link of the chain of issues. The mediator can then use that agreement to put the remaining matters in line with
the context.
Some matters are logically related to one another in the sense that agreement on some issues logically requires
agreement on others. A parent and child will not agree on the time at which the child must return from
attending the high school fest that night if they disagree over the logically prior issue of whether he will be
going out at all or not. Structuring the discussion of logically related negotiating issues is a tricky matter for
the mediator. In some cases it may be more effective to ignore the logically prior issue and begin discussion
on its logical consequent or outcome. If a child assures his parent that she will be home within an hour of the
Page 9 of 12
INSIDE THE MEDIATION PROCESS
end of the high school fest or by 09:00 p.m., whichever is earlier, that specific commitment or agreement may
help him gain confirmation on the issue of whether he can go out at all or not. This approach can lead to
success in negotiation even though the issues, logically speaking, are reversed.
The negotiating issues can also be related causally to one another. By first examining the basic cause of the
dispute, the mediator enables everyone to address the remaining issues more constructively. Although
beginning mediators are particularly apt to choose this rationale for shaping the discussion of the issues, it is a
dangerous strategy that should be used only sparingly and with great caution. The search for “basic” causes is
often a dangerous technique; further, this approach encourages parties to view problem solving as an exercise
in establishing guilt or innocence for previous conduct rather than as a joint collaborative effort in shaping
their future in light of their past — hence, using this approach can result in retarding the settlement - building
process rather than accelerating it.
Priority for Pressing Deadlines: Some issues must be resolved by a particular deadline if parties want to avoid
potentially more costly, difficult or undesired consequences. Other issues don’t involve the same time
pressure. The easiest issue to resolve normally is the most pressing one, because all parties feel the need to
resolve it. If a divorcing couple wants to send their child to a boarding school, they must resolve the issue of
tuition payments and stay at the residential school for the child even if they have not resolved any other
financial arrangements and their own shifting out issues. Failure to resolve it will result in something that both
consider undesirable: the child will not be able attend the school missing out on his studies and loosing
valuable time of his academic career.
Stability and Balance: In ordering an agenda, the mediator must be aware of the possible impact of choosing an
issue of one side first— the other side might feel that the mediator is not neutral. Consequently, where there
is an issue of mutual concern, that issue might be discussed first. If the mediator then proposes an issue that is
associated with one party next, he could subsequently alternate issues between the parties (e.g., 1. mutual issue;
2. issue of party A; 3. issue of party B). While different mediators will make different judgments, the
application of these standards might result in reframing, re-grouping and re-ordering the negotiating issues as
follows:
Perspective
Since parties to a mediation do not have to agree, a mediator, in trying to advance resolution, must help them
re-examine and verify their perspectives and positions. He does so not only by convincing them that
proposed solutions are consistent with their interests, but also by using a series of maneuvers that
psychologically position the parties for agreement. Here are some standard techniques that a mediator uses to
convince a party to alter his attitude. The mediator must remember that any technique is effective only when
used sincerely with sole motive arriving at an amicable solution.
1. Allow for choice. When parties become locked into a volley of bitter and biting exchanges, an escalating
repeated cycle can generate more and more damage. A mediator might ask, “Would you like to continue this
conversation about who is at fault, who has troubled whom, who is the sole reason for all the bad situations
— a conversation you have been having for a long time — or do you want to see if we can resolve the issue
and bring back prosperity and peace into your lives?” Simply laying out the choice sometimes empowers
parties to move in a different direction and think constructively.
2. Compliment and inform the progress graph. Everyone likes to be complimented. A mediator must reinforce
positive behavior by reminding parties that their willingness to mediate, the progress made till then, to listen
to one another, to come up with proposals, and to “hang in” after many hours of emotional discussion is
commendable. When people are praised, they feel stronger and value the mediator’s opinion as well as they
feel the empathy of the mediator towards them. When they are stronger, they are more responsive to others
and more creative. To the extent parties are doing a good job, tell them so!
Page 10 of 12
INSIDE THE MEDIATION PROCESS
3. Cite common day to day examples with which people can identify. A mediator must teach and persuade by using vivid
examples. To be persuasive, examples must be relevant to, or understandable in the context of, a disputant’s
individual experience and should relate to common day to day examples. The mediator who must prod an
autocratic manager to work more productively with his free - spirited subordinates is more effective if he cites
examples of differing managerial styles portrayed in episodes of a popular television series than if he appeals
to the published findings of social science research regarding leadership behavior.
4. Use humor and being witty. Laughing makes people feel comfortable with themselves and their surroundings.
It breaks the tension and helps put matters into perspective. A mediator should not use a mediated discussion
as an opportunity to polish a comedy routine, but he should not hesitate to inject a humorous and witty
remark into the discussions. The only stipulation that mediator should keep in mind is that the mediator must be sure
that everyone receives the joke in right spirit and the joke must not be at the expense of any of the party.
5. Try role reversal. Sometimes a party will change his position or better appreciate a particular demand of the
other party if the mediator gets him to analyse the negotiating issue from the other party’s point of view. A
teenager might resist obeying his parents’ curfew rules because he believes they are unduly restrictive; but a
mediator might get him to reconsider his resistance by making the teenager put himself in his parents’ shoes
and view curfew rules as safety and concern measures developed by persons with an only child living in an
unsafe and crime prone neighborhood.
6. Gauge the peer pressure. Sometimes a person changes his mind because he does not want to be the only
individual or standalone in the group who disagrees with the proposed solution. A mediator should capitalise
on that need to belong by being sure that the lone party is exposed and affected by the group opinion.
7. Awkward silence. Everyone is afraid of silence. A mediator cannot be. People feel awkward when no one is
speaking. A mediator must not rush to fill the air with chatter and blabber unnecessarily. Silence can bring
opportunity. Sometimes one party will relieve the uncomfortable atmosphere by suggesting a possible change
in what he is willing to do or would stop his aggressive behavior asking or seeking the intervention of the
mediator for a way forward. The mediator should recognise that movement and exploit the opportunity for
better possibilities.
8. Focus on the future, do not dig the past. A mediator helps parties shape their future. Past events influence that
design. But the mediator must remember that no one can change what has happened and that the impact of
past events becomes less dominant as their details become ambiguous and disputed. A mediator must not let
the parties’ competing visions of their past paralyse them. He should constantly advise them to look at the
future and how the positive thinking process can reshape their future and allow them a happy, prosperous and
peaceful life. Suppose a subordinate and his supervisor disagree over whether the supervisor had clearly
established performance objectives that he is now penalising the subordinate for not meeting. A mediator
generates flexibility by expanding the discussion from a contest over what happened or who is at fault to a
consideration of the future or how he or she can be adequately rewarded in future to allow forget the past.
Clearly, that discussion will be tempered by their respective beliefs about what occurred; each will propose
solutions designed to ensure that similar disputes do not occur.
9. No ‘yes’ to everything. In some discussions, one party seems to obtain its favored position on nearly every
negotiating issue. An agreement that gives one of the parties what all he needs — will not allow peaceful
conclusion or long running sustenance of the settled agreement. A mediator must put the brakes on such
behavior by reminding that party of how reciprocity and an outcome that benefits both sides can result in
compliance with commitments.
10. Exploit vulnerabilities. Disputants tend to see things in all–or-nothing terms: “I’m right, you’re wrong.” One
Page 11 of 12
INSIDE THE MEDIATION PROCESS
party often insists that only others do what is necessary to correct the situation because they caused the
problem. But no one is infallible; everyone has reasons for regret or lament. These lapses constitute
vulnerabilities, which the mediator should expose in order to rebalance the discussion and allow the more
blaming party to understand that he has contributed in some proportion at least to the dispute. By
highlighting vulnerabilities, he emphasises joint responsibility for the problem and the need for mutual, not
unilateral, action to solve it.
11. Save face. Face-saving means maintaining one’s dignity or reputation. Everyone says and does things they
later regret. Everyone, from time to time, takes positions that are ill-considered. It is rare, however, for people
to admit they were wrong or short-sighted. If a mediator can help a party to change positions without looking
bad, then movement is far more likely. Sometimes a small concession, a statement of appreciation, or an
apology from one side can allow the other side to make a bigger move without losing face. The mediator must
frame the exchange in a certain way so that the party making the big move does not feel exposed and rather
feels more appreciated for the change. Sometimes, parties will be willing to accept a deal if the proposal
appears to come from the mediator because of its neutrality rather than from either of the parties. What
constitutes acceptable face-saving will be different in every case.
Extract more Information and Generate Settlement Options
Some parties will simply not share certain critical information in front of their negotiating counterpart. When
the mediator develops a feeling that there is an important piece of the story missing, a caucus might help to
provide it. In this case, meeting first with the party who is a bit composed or avoidant makes sense. In other
cases, after some period of time, parties engaged in joint discussion begin to repeat themselves; they reject all
proposed solutions. The mediator must gain a better understanding of why particular options are
unacceptable.
He must provide an atmosphere in which parties can explore possible solutions without exposing their
flexibility or having to make an immediate haste decision. He calls for a caucus. From a substantive viewpoint,
it does not matter which party the mediator meets with first. The mediator’s choice is frequently guided by
considerations such as which party is seeking to alter the status quo or which party believes itself to be at an
emotional, political, or power disadvantage; meeting first with those persons is frequently interpreted by them
as bestowing a sense of legitimacy and equality with other participants that might put them at ease and
encourage flexibility. This enforces trust factor of the concerned party on the mediator and guides mediation
towards a positive outcome.
Reduce or Eliminate Stubbornness
At some point in the discussions, a mediator knows that someone must change his position on a specific issue
to advance settlement. In caucus, the mediator forcefully explores the costs of continued recalcitrance—the
risk of losing at trial or in arbitration, the loss of a valuable relationship, the aggravation of having the matter
unresolved, the possible reputational costs, and so on.
Parties miscalculate how their conduct affects others. They misread or are oblivious to people’s reactions to
their bargaining demands, language, or behavior. The mediator must address those situations. A mediator, of
course, does not have to wait to be told that certain conduct is deeply offensive and will polarise discussions.
If he sees that one party’s conduct is alienating others, then he can separate the parties and speak privately
with the offending party.
Evaluation
A mediator should evaluate the progress of the discussions and to design a plan of action. Although he should
keep such recesses to a minimum, he must not hesitate to declare one if the need arises. When asking for time
to reflect, he indicates to the parties that he is calling for a recess to review his notes and evaluate how best to
proceed; he invites them to do the same. The mediator needs to provide a place where each party can be
Page 12 of 12
INSIDE THE MEDIATION PROCESS
alone or can meet with colleagues, expert advisors or support persons. In other cases, the mediator plays an
important role in sparking a more thorough evaluation of matters by parties in an atmosphere where they are
not emotionally crippled by reactions of or to the other side. Hearing an idea or challenge framed by the
mediator - even if it originated with the other side - might allow a more dispassionate analysis of its merits.
Take a Break
Parties need time and space to consider comments and proposals and reconsider their own position and
decision. They need to make decisions without the pressure of an adversary in the room - they need to escape
to their safety comfort zone. It may be helpful to have the mediator with them; they may need time to reflect
on their own; or they may need to contact someone outside of the discussion. The mediator might declare a
caucus after one party has made a new proposal and the mediator needs sometimes to streamline the
proposal, when someone seems overwrought, or as the parties are approaching deadlock. He indicates to
them the specific topics that he wants each to consider in their separate meetings with the mediator, in their
“time out,” or while they are waiting for their turn to caucus with the mediator. The meeting or period for
reflection is structured substantively and has a time limit. Such a regrouping can result in renewed stamina and
momentum to the process.
A mediator who calls for a caucus but cannot identify its general purpose is unaware of the utility of this
valuable tool. A mediator should caucus only if separate meetings constitute the most likely avenue for
helping the parties move towards consensus.
No Agreement is Not a Failure
Some mediated discussions end without any resolution of the negotiating issues. No mediator should try to
camouflage that fact. But he must try to make certain the parties leave the discussions without feeling any
more bitterness toward one another than they did before the meeting and with a clearer idea of their options
and understanding in case they have partially managed to settle the dispute.
The mediator does not want the parties to leave feeling incapable of dealing with their situation. He can
discharge his duty as scapegoat at this juncture by expressing to all parties his regret that he was unable to
help them resolve their dispute or it was not his day. Even if the mediator believes that the parties are
unreasonable, he does not tell them so, but attributes their lack of success to his own inability to help them.
This does not fool anyone, but it does allow the parties to leave the discussion without undue anger or despair
and a bit of self-confidence to manage and resolve the dispute through some other appropriate forum. The
mediator also highlights what the parties have accomplished during their talks. The absence of a settlement
does not mean the discussions were useless. The mediated discussion may well have clarified issues more
precisely, developed a more credible information base, canvassed the strengths and weaknesses of the parties’
litigation positions, explored various settlement options, and improved communication among the parties.
These are not insignificant elements of progress; although the mediator must not exaggerate their value, he
should bring them to the parties’ attention so that they do not leave the meeting in utter frustration and with
some hope.
End of Document
ROLE OF LAWYERS IN MEDIATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
ROLE OF LAWYERS IN MEDIATION
Attorneys are the fulcrum of the legal system. There is a reason why the legal system is often referred to as the
‘Bar and Bench’. Without the lawyers and the judges there is no system. Attorneys thus, also have a key role in
the mediation process. When the client of an attorney engages in mediation to settle a dispute, an attorney has
a conscientious role of guiding the disputant on the legal options of settlement available with a client. The
attorney can also help review the settlement agreement and ensure the enforceability and legality of the terms
of settlement. More than anything else, an attorney must guide the client.
Duty to Client
Many lawyers are uncomfortable with the mediation process. This is mostly because it has no similarities with
other adjudication processes like litigation, arbitration and Lok Adalat which all have a third party in a
decision making position. However, it is also the duty of attorneys to do the right thing for a client and act in
his best interests. Hence, when a client decides to undertake mediation, an attorney should overcome their
personal apprehensions about the process and guide the client as objective as they guide them in other legal
matters. With the cooperation of an attorney, a client can carve out a solution and enforce it. If the disputant
is happy, the attorney gets to keep a client for life.
Familiarisation with the Mediation Process
Most mediators are trained to practice interest based, facilitative mediation. This means that the focus of the
mediation is on ascertaining the underlying interests or concerns of the parties (as opposed to their claims or
rights), and searching for an appropriate solution which can reasonably satisfy the interests of both parties.
For example, take a dispute between two neighbours where one neighbour has sued the other for damages for
hitting him in the course of an argument on the issue of parking. The claim may be monetary or space
constraint in nature, but the real interests or concerns of the parties would be to find a solution which would
allow them to live in harmony.
Furthermore, as a general rule, mediators practice facilitative mediation. In other words, the mediators are not
there to tell the parties who is right or who is wrong. The focus is on problem solving, not on who has a
better case or argument.
Mediation advocates should be familiar with the process practised at different Centre, so that they can
adequately prepare their clients for the sessions beforehand. Whilst there are no fixed rules or procedures in
mediations, and mediators may need to be more flexible and creative in some cases, a typical mediation will
consist of a combination of the following components:
1. Introduction by mediator;
Page 2 of 5
ROLE OF LAWYERS IN MEDIATION
2. Opening statements by parties;
3. Joint sessions:
— Identifying issues;
— Identifying interests and concerns;
— Generation of options;
4. Separate meetings/caucus;
5. Negotiations;
6. Agreement.
Considering the Possible Objectives of Mediation
Of course, the ultimate reason for using mediation is to resolve the entire dispute between the parties.
However, as a mediation advocate, you should be aware that in the event that the entire dispute cannot be
resolved, you can consider other possible objectives, which may still prove to be useful or helpful to your
client.
So, in preparing for a mediation, it would be useful to bear in mind these other possible objectives. Solving
part of the problem for your client is still better than not solving anything at all.
Deciding Whether to Mediate
As a mediation advocate, you can assist your client by helping him to assess whether the case is suitable for
mediation. For example, a case is suitable for mediation when:
1. neither party has a clear case;
2. the law is unclear;
3. there are evidential problems;
4. the value of the claims do not justify the costs or time involved;
5. one or both parties want the matter settled confidentially;
6. the parties wish to continue doing business together; or
7. the parties are prepared to give and take.
Help your client to assess his chances in court by obtaining an expert’s report or an independent valuation.
What would the probable outcome in court be? Would a mediated settlement be a better alternative?
Deciding When to Mediate
To give another example, a party that feels it has a good case may nevertheless be prepared to settle because it
is preparing for a listing. In life which is generally equally beautiful and harsh, timing is everything. Generally
speaking, a dispute which has been referred to mediation at an early stage stands a better chance of being
resolved. If you decide to mediate at too late a stage, the parties may not be able to settle because of the
amount of damage and disturbance which has been generated, and the costs which have been incurred.
Sometimes, however, opting for mediation at too early a stage may have its drawbacks. The parties may need
a cooling off period before they are ready to mediate.
Choice of Mediator
The mediator is proposed by the centre or unit of mediation. In almost all cases, the proposal is accepted
Page 3 of 5
ROLE OF LAWYERS IN MEDIATION
unless there is, say, a conflict of interest. You can help ensure that the mediator who is selected is an
appropriate choice for your case by:
1. informing the centre of the nature of your case when you first register your case; and
2. making specific requests viz-a-viz the choice of mediator. E.g. ask for a Hindi speaking mediator if
your client is only conversant in Hindi, or for a more senior mediator if the parties are elderly.
Preparing Your Case for Mediation
Just as a litigation lawyer needs to develop his case theory before trial, a mediation advocate needs to know
his case well, and strategise for the mediation.
The first step is to review the pleadings (if any), the relevant documents and the correspondence between the
parties. If without prejudice negotiations have been conducted, note the last offers made by the parties.
As the type of mediation practised by mediators is interest based mediation, the next step is to identify the
interests and concerns of both parties. Once you are aware of the available evidence, the legal positions and
the underlying interests of the parties, you will have an understanding of what is actually negotiable.
How does one identify the opposing party’s true needs and interests, and deal with them:
1. Ask why. Put yourself in your opposing advocate’s shoes and ask why he or she would be taking a
particular negotiating position. What could be the desires, concerns, fears, hopes behind it?
2. Ask why not. Again, put yourself in the opposing advocate’s shoes and ask why he or she has not
embraced your negotiating position. What desires, concerns, fears, hopes are precluding it? Are they
legitimate? If not, what can you do or say to help the opposing side see that they are not legitimate? If
they are legitimate, what can you do to modify your negotiating position so that the opposing party’s
needs and interests can be better satisfied?
Once you understand the interests and concerns of the parties, you are then in a position to make a list of
possible options or solutions.
Case Summary
Once this is done, you are in a position to prepare your client’s Case Summary, which should be presented to
the mediator several days before the mediation. The Case Summary should not be longer than two to three
pages, and should state your client’s claim, his interests and concerns, and the status of the latest negotiations.
Important documents supporting your client’s claim ought to be disclosed to the mediator.
Preparing the Client for Mediation
In a trial, the client’s role is limited to the giving of evidence. The lawyer plays a greater role; making the
opening statement, examining and cross examining the witnesses, and making the closing submission. In a
mediation, the client plays a greater role and the lawyer’s role is more advisory in nature.
Plan a session with your client before the mediation, where you can:
1. Explain the nature of the mediation process to him.
2. Explain the procedures, the roles of the mediator, the lawyers and the parties.
3. Go through the case with him, identify his interests and concerns, and discuss possible options for
settlement or solutions.
Page 4 of 5
ROLE OF LAWYERS IN MEDIATION
4. Discuss goals, strategies and themes.
5. Agree on a reasonable settlement range, opening positions, and bottom lines. If your client is
representing a company or organisation, make sure he works out the limits of his settlement authority.
6. Help your client with his presentation of the Case Summary.
7. Discuss his BATNA (Best alternative to a negotiated settlement), WATNA (Worst alternative to a
negotiated settlement) and MLATNA (Most Likely Alternative to a Negotiated Agreement).
8. Tell him to be open.
Representing Your Client at the Mediation
This is the time for you to put the strategy which you have discussed with your client into action.
Opening Statement
Assist your client in his opening statement. If he has missed out any important point, chip in at the end of
your client’s presentation. You may ask the mediator for permission to clarify aspects of the opening
statement or obtain further information.
Joint Session
Help explain your client’s true interests and concerns. You may ask questions to ‘test’ the interests and
concerns raised by the other party. Assist the process by helping to generate options and possible solutions,
bearing in mind the goals, strategies and bottom lines of your client.
Private Meetings
Be helpful but ensure that your client does not disclose more than what he set out to do or exceed his bottom
line. At the end of each private meeting with the mediator, state clearly what can or cannot be disclosed by
him to the other party.
Advising your client/Negotiations
Take the time necessary to caucus with your client privately. Remember: you are there to protect your client’s
interests and to help him negotiate.
Working with the Mediator
Work with the mediator. He is a neutral and is there to assist the parties. If he is convinced of your client’s
sincerity and the reasonableness of his position, he can help to relay your client’s proposals to the other party
and explain the rationale in a more objective manner. A proposal made through the mediator usually comes
across better.
Joint Problem Solving
In litigation, the aim is to win the case for your client, regardless of the outcome for the opposite party. In
mediation, whilst the aim is still to obtain a good settlement for your client, the focus is on joint problem
solving, not demolishing your opponent. It takes two to settle a case, and the challenge is to find a solution
which reasonably satisfies the interests of both parties.
Settlement
Before your client makes an offer or accepts a settlement, ensure that you discuss the details with him so that
he understands what he is doing. Check that the terms of settlement are viable and can be performed.
You ought to be aware that the terms of the Mediation Agreement signed with the SMC specify that there is
no binding agreement unless it is reduced into writing and signed by the parties. A party cannot, therefore, be
Page 5 of 5
ROLE OF LAWYERS IN MEDIATION
held to an offer made verbally in the course of the mediation session. If the parties arrive at a settlement, draft
a simple agreement which covers the vital points.
If, at the end of the mediation session, your client decides to shake his opponent’s hands, remember the
experience of my lawyer friend and tell yourself, ‘Yes, I did the right thing for my client!’1
1
1 . http://www.lawgazette.com.sg/2000-9/Sep00-feature2.html (last accessed on 28 March 2015).
End of Document
PSYCHOLOGY OF MEDIATION
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
PSYCHOLOGY OF MEDIATION
Every mediation is based on the premise that all disputes are affected and influenced by psychological or
emotional principles which we commonly refer to as ‘psychological barriers’ in everyday life. Almost every
dispute including commercial disputes involve injury to the feelings of one or all disputing parties. So, there
are very few disputes without an emotional element. If every dispute was always approached from a very
pragmatic, rational, unemotional, practical or commercial outlook, very few disputes would ever come into
existence. But this is not humanly possible. To continue a conflict with someone defies rational scrutiny and
considering the costs involved in resolving disputes through traditional dispute resolution mechanisms,
continuation of a dispute also resists economic analysis. But the human mind which is capable of so many
extraordinary ideas and discoveries also has its own problems which cannot so easily be debugged or
reprogrammed. We are wired to commit some common errors which invariably lead to disputes. At the same
time, a little re-wiring and debugging can also help our system become amenable to a dispute resolution
process where we find our own solutions without skepticism.
The aim of mediation is to help parties arrive at a mutually satisfactory solution to their conflict. In the
psychotherapeutic context, the aim of conflict resolution is to transcend the antagonistic and emotional stance
and move the parties from their initial confrontational position to a more reasonable platform. At the
reasonable platform, the parties can enter into some form of working alliance and achieve a resolution which
is good enough and workable for each disputing party.
Time Limited Therapy
In psychology, time limited therapy involves working on the issues of a client in a time bound manner. This
therapeutic technique mirrors the finite nature of human existence. A person’s awareness that he needs to
resolve his issues within a prescribed time frame is supposed to motivate the individual and intensify his
dedication to the therapeutic process. It encourages clients to raise issues and concerns which they would not
have readily raised in a leisurely process without any time limit constraints. Such a time limited process is
known to assist clients to re-evaluate unduly high expectation of life.
In the context of mediation, applying a time limited therapeutic approach can encourage parties to
acknowledge the time frame of the mediation process and bring down their unrealistic expectations from the
outcome of the mediation. The disputing parties may develop a more realistic perception towards all the
aspects of their relationship and the surrounding circumstances within which the mediation arose in the first
place.
However, it is important to distinguish the use of this therapy based on the expected outcome of a
psychological therapy and mediation. In psychotherapy, the therapist or counselor seeks to achieve a lifelong
Page 2 of 4
PSYCHOLOGY OF MEDIATION
change in the client’s outlook on life including their beliefs, value system and the aspirations which govern
how they conduct their interpersonal relationships. In mediation, it is not the goal of the mediator to bring a
lifelong change in the parties. His main aim is only to bring about a short-term alternation in disputing party’s
attitude towards the outcome of the conflict.
Yet both the counselor and the mediator endeavour to produce a paradigm shift in the attitude of the parties.
While the counselor tries to make a change in the attitude of the person towards life in general, the mediator
works towards a shift in the attitude of the disputant towards the specific dispute in question. Only when the
attitude of a disputing party shifts from combat mode to productive settlement mode will the party become
ready to accept solutions which they may have previously rejected.
Need for a ‘Result’
It is very common for two people to come very close to settlement and then refuse to settle because they do
not wish to meet the other party’s demand. For example, in a dispute for compensation, one party may ask
for a compensation of INR 20 crore. The paying party may agree to pay INR 19.75 crores. The other party
may flatly refuse the offer and the paying party may refuse to hike the offer by INR 25 lakhs. If you ask the
parties what difference that gap of INR 25 lakhs will make for them they may have no answer. They will
probably confess that commercially, the amount does not make that much of a difference. But from a
psychological point of view, that INR 25 lakhs give or take affects their self esteem. Both disputing parties
come into the mediation with an ‘expectation’ that at the end of the mediation they will have a certain ‘result’
- a good outcome with which they will feel satisfied and will make them feel that they got a ‘good bargain’.
This is particularly relevant when the person attending the mediation is attending in a representative capacity
for a commercial entity and he will have to ‘sell’ the deal to the organisation they represent. They therefore
hope for a good bargain to secure the commendation and approval from their board of directors, boss,
spouse or parent. What they expect from the mediation is directly related to what their boss, spouse or parent
expects them to negotiate out of a mediation. While they may have settled the dispute in their individual
capacity, they leave the dispute at a deadlock because they do not want to disappoint their
boss/spouse/parent. As discussed previously in the chapter on negotiation, like the tragic heros and heroines
of the Hegelian Tragedies of Greece, pay a high price for getting what they think is ‘fair’ or ‘just’.
This desire for approval can be said to be a part of our need to maintain a high self esteem and a mediator
who recognises this in the parties will be in a better position to find common ground or to explore wholly
separate avenues for settlement.
Reactive Devaluation
The desire to always ‘come out on the top’ is engrained in human beings since the time they were playing on
the playgrounds as children. As children, we would always compete to see who could scramble up fastest over
the mountain of sand or who could finish the monkey bars in one go. Very little changes once we ‘grow up’.
This desire to come out on top is also reflected in dispute situations. This desire to maintain superiority may
simply be a strategy used in protection of one’s own self esteem. By securing and maintaining superiority, the
other party is necessarily and immediately rendered ‘inferior’.
What is important is that feeling superior or making the other party feel inferior gives us a sense of
satisfaction. We become afraid that we are being manipulated when the other party offers us exactly what we
wanted. Suppose you buy a high end phone and when it is delivered to you, you realise that the piece is
defective. You demand a full refund or a repair of the defective phone. You are secretly hoping for a refund
so you can buy some other phone. If the phone company offers you a refund without you having to argue for
it, you may become suspicious. “Why are they offering me a refund when they could have offered me a
repair? Maybe this phone has a very small defect and they want to repair the defect and re-sell it. Maybe I
should not return the phone and just get it repaired.” In this case, the receiving party evaluates the offer in the
Page 3 of 4
PSYCHOLOGY OF MEDIATION
light of where the offer originated and reacts by instinctively devaluing the offer because it originated from
the ‘opposite party’.
This system arises because of our value system which constantly tells us that the other party is your
‘opposition’ and what is good for them may be bad for you. You constantly imagine an opposite party who is
plotting and planning to have an upper hand over you in the mediation. If you are offered a good deal, many
times you may be tempted to think that the other party is hiding some very big mistake which you must find
out and then exploit through other forms of dispute resolution. What you do not realise that in the process of
trying to dig for their ‘big secret’ which may or may not exist, you agree to forego what was offered to you
and exactly what you wanted.
Bottom line - disputing party can benefit from mediation only when they see it as a ‘win-win’ process and
collaborate together to give each other what they want.
Who Moves First
Another classic example of the role of emotional or psychological blockages in the disputes can be seen from
the ‘Who will move first syndrome’. We have a tendency to believe that if we refuse to budge from what we
want, we are showing the other party that the right is on our side and they will have to succumb to our
demands. We spend a lot of money and time in proving that we are ‘right’ instead of accepting a fairly good
bargain today. This desire to be superior and to exit the conflict in a superior position is a strategic barrier that
very often causes an impasse in a dispute. We refuse to do ‘something’ unless the other party does ‘something
else’ in return.
Parties become entrenched in a standoff which can be of no commercial benefit to either side. The rational,
commercial and economic solution would simply be to get on with it. One or the other party must swallow
their false pride and make a move. Otherwise, there is no use of resorting to mediation. We all know this
internally. Yet, the urge to be superior or the apprehension of being manipulated prevents the disputing
parties from sometimes making that obvious rational, commercial and economic decision. These strategies
may again be born out of the survival strategies created by parties to protect what they consider to be their
self esteem, self respect or self worth.
Risk Taking and Aversion to Loss
It is very important for a mediator to know the psychology behind what will make one party accept what is
‘on the table’ whereas another will invariably hold out for more. In a research done by American scientists,
the impact of this human reasoning has been studied in an interesting way. The scientists considered a ‘mirror
situation’:
Situation 1
Party A owes Party B INR 1000. Party A tells Party B that he has two options. He can have INR 1000
immediately or they can toss a coin. If the coin lands on heads, Party B will get INR 2000 instead of INR
1000 but if the coin lands on tails, Party B will get nothing.
Situation 2
Party B owes Party A INR 1000. Party B tells Party A that he has two options. He can have INR 1000
immediately or they can toss a coin. If the coin lands on heads, Party B will have to pay him INR 2000 instead
of INR 1000 but if the coin lands on tails, Party A will get nothing.
The American research showed that invariably, Party A would accept INR 1000 immediately instead of
running the risk of losing everything. On the other hand, Party B would prefer to gamble and risk the
Page 4 of 4
PSYCHOLOGY OF MEDIATION
prospect of paying double in the hope of having to pay nothing. Hence, in a mediation, parties may have an
aversion to certain loss and hence may be prepared to gamble to avoid certain loss i.e. they may have the
tendency of loss aversion. At the same time they have a ‘risk aversion’ when it comes to gambling and risking
loss in order to make a gain. In the context of litigation, the claimant is more likely to accept an offer rather
than risk going to trial and lose everything (risk aversion). However, the defendant would tend to choose the
option of proceeding to trial preferring to gamble in order to avoid the certain loss (loss aversion).
End of Document
MEDIATION CLAUSES IN COMMERCIAL AGREEMENTS
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
MEDIATION CLAUSES IN COMMERCIAL AGREEMENTS
When parties are shaking hands and entering into a contract, they do not intend for disputes to occur.
However, it is normal that conflicts between contracted parties arise in the course of business. These
contractual disputes need to be dealt with as quickly as possible in order to avoid negative impact on the
performance of the remainder of the contract and the relationship between the parties.
Most commercial contracts involve financial and commercial consequences for both the parties. Hence,
mediation is so essential. Mediation prevents the dissolution of an ongoing contractual relationship by
creating an open line of communication between the parties. This is especially important for parties
committed to long-term contractual relationships, which make it difficult to terminate the contract.
Internationally, various industries are currently including mediation clauses in their business contracts and
implementing mediation at the onset of a dispute arising from the contract. Several of these industries include
infrastructure and real estate claims, medical malpractice claims (for patients, doctors, and insurance
companies), debt recovery, insurance claims, virtually all credit card agreements, online service agreements for
E-commerce, banking agreements, international business contracts, corporate contracts and private business
contracts. The presence of mediation clauses in various business fields’ contracts is evidence of the success
that mediation is having by creating an environment where parties are able to work together to reach a mutual
outcome.
In India, most contracts provide for the parties to meet each other and negotiate a settlement amongst
themselves. Most of the times, these negotiations fail and the parties have to directly take recourse to
arbitration or litigation. Once the parties spend their resources and faculties in an open field confrontation
like arbitration or litigation, it becomes difficult and almost next to impossible to salvage the dispute. In such
cases the med-arb model may work in India where parties can first submit their dispute to a time bound
mediation and if it does not work out, they move to arbitration which in many cases is further moving to
litigation.
By including a mediation clause in the contract, parties involved make a conscious decision at the beginning
of their contractual relationship to avoid the downsides of litigation if a dispute arises. However, in situations
where the parties are unable to resolve their discrepancies through mediation, arbitration and litigation rights
can be utilised. Conversely, this process does not work the other way around. Due to the binding nature of
arbitration, parties who engage in arbitration or litigation and reach a final decision cannot then decide to
mediate. That is why it is important to include a mediation clause in contracts and enforce the practice at the
outset of disputes. If the opportunity to mediate is lost, attorneys, clients, and other involved parties forego a
cost-effective opportunity for a mutually beneficial resolution between parties.
Page 2 of 2
MEDIATION CLAUSES IN COMMERCIAL AGREEMENTS
As mediation continues to flourish, there have been recent concerns regarding the enforceability of mediation
clauses in contracts. There is an ongoing misconception that mediation clauses in contracts are unenforceable.
However, this perception is inaccurate. More and more, courts are willing to recognise public policy favoring
mediation proceedings. If the mediation clause is properly crafted, courts are willing to enforce them. To be
on a safer side, a settlement agreement after mediation can also provide for enforcement or further dispute
resolution through arbitration.
End of Document
PRACTICAL CHALLENGES
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER IV
MEDIATION—THE MAGIC
CHAPTER IV MEDIATION—THE MAGIC
PRACTICAL CHALLENGES
Since mediation does not have any set rules and guidelines on what is ‘right’ and what is ‘wrong’, mediators
regularly face practical challenges in conducting a mediation and taking it forward. Critics, practitioners and
proponents of mediation are also concerned about the element of justice in the outcome of mediations. Some
of these concerns are based on issues such as self-determination or principle of party autonomy and whether
a mediator will really be able to address power imbalances between the disputing parties; the principle of
neutrality and the appropriateness of the mediator to steer the mediation to ensure the justness of outcomes
and on whether the mediator ought to provide relevant information and/or advice to the parties. It is
inevitable in these circumstances for practice challenges and ethical dilemmas to arise. While practicing
mediation, a mediator may confront many of these practical dilemmas and yet, the mediator has very little
reaction time or time for contemplation. The mediator has only one chance to respond successfully. In such
situations with high stakes, it is either ‘do or die’. Some of the dilemmas of a mediation are discussed below.
Unequal Bargaining Power
The concept of bargaining power is highly subjective and vague. Power itself cannot be catalogued, listed or
categorised - wealth, fame, information, guns, numbers of people, principles, popularity, hierarchy/rank,
natural resources, subscribing to a certain religious faith, being in the majority group, being articulate and
persuasive, or an absence of competitors-no person can make any substantial claim of being able to identify
which source is most useful or how much of a particular source one must have in order to ‘have power’. It is
even more difficult, to assess whether the parties’ bargaining power is equal or unequal or who has power
over whom. This exercise requires so many assumptions that the final opinion of the mediator may be
nothing more than a guess. These are things which cannot be measured or calculated with mathematical
precision.
Yet, intuitively, we all know when some people have more influence than others in a situation. Some common
examples are corporate conglomerates and workers, government company and their contractors, head of a
family in a joint family etc. These examples depict a real problem that arises from unequal distribution of
resources.
In a mediation also, the mediator faces disputing parties with different bargaining power. Before deciding to
subject a dispute to mediation, we must assess whether the difference in bargaining power be it financial,
political, legal, experiential or otherwise is so wide that the more powerful party can simply dictate the
outcome and the other party will have no option but to succumb. If this is the case then the dispute may not
be fit for mediation.
Mediation requires collaborative problem solving approach where both parties must have a say in the
Page 2 of 9
PRACTICAL CHALLENGES
outcome. Unilateral decision making either by the mediator for the disputants or by one disputant for another
can never be called mediation.
Theoretically, this answer may sound perfect, but it is difficult in practice to spot a situation involving such
extreme power imbalance. Frequently, a single mediation may have various issues and there may be a different
power imbalance for each issue at different points in time. One party may have more power when dealing
with financial issues. However, another party may have more power when it comes to relational issues.
Sometimes in a multi-session mediation, one party may arrive seemingly dispirited and depressed with an ‘I
surrender’ attitude while the other party may seem energetic and powerful. On another day, at another
session, this disparity may vanish. This makes the job of deciding who has the upper hand tough. Sometimes
one party may have damaging information about the other party and may be threatening to use it as a leverage
and the other party may be too afraid to reveal this to the mediator.
In such situations, the mediator must explore with the parties to understand the background of the dispute.
The mediator must then proceed to determine the parties’ wishes with respect to proceeding. If all the parties
believe that mediated discussions represent their best option for advancing their interests, then doubts about
apparent disparities in bargaining power should be resolved in favor of respecting the parties’ wishes to
proceed.
Power disparities which make mediation an inappropriate tool for dispute resolution are obvious and blatant.
A battered spouse should not engage in mediated discussions with the spouse without protections and a
positive, emotional support system in place. The mediator knows that mediation is a process for fostering
independent decision making. In a situation in which one party lacks the capacity to act independently (for
fear of inebriation, physical retaliation or minimal verbal or analytical skills), then the mediator should prevent
the process from going forward.
Sometimes these disparities do not appear until the parties are engaged in the discussions. What should the
mediator do then? The answer is straight forward: stop participating, but exit without a public denunciation.
The mediator discharges the scapegoat task by informing the parties that in light of the way the discussions
have progressed, he no longer believes he is able to serve them effectively and he ends the mediation.
Responsibility for the Effectiveness of the Final Settlement
Party choice and deliberation are the cornerstones of a mediation settlement. The mediator only acts as a
referee of the process. He ensures that the parties have examined a variety of potential outcomes,
perspectives, applied and consulted relevant principles and norms and have put in effort to come to an
agreement which is a long term solution and is practically doable. The mediator does not, however, dictate the
outcomes to the mediation. The mediator does not veto party preferences because in his personal opinion,
the solution carved out by the parties is not a desirable resolution.
Once a dispute is committed to mediation, the mediator must put in all his effort to lead the process in a way
where party’s self - determination and participatory decision making are the routes through which the final
settlement is reached. If the mediator, judge or the centre coordinator who meets the parties for the first time
and is in charge of committing the dispute to mediation has any doubts about the desirability of resolving a
controversy through mediated discussions, then he should satisfy his doubt before, not after, the dispute has
been committed to mediation. For example, a single employee has a grave issue with the chairman of a huge
company. Of course, there shall be a vast power disparity in terms of finances and hierarchy between the
disputants. In such a situation it is valid to consider whether the dispute should be committed to mediation.
The mediator shall have to determine whether his own commitment to bridge the disparity is consistent with
encouraging the private settlement of such individual charges. The mediator should also factor in the
possibility that the employee may succumb to settlement terms less favorable than those he may be able to
obtain by prevailing in litigation or arbitration. The mediator will have to evaluate the advantages of the
Page 3 of 9
PRACTICAL CHALLENGES
disputants having easy access to a dispute resolution process against the costs of possibly losing a valuable
precedent in court. Yet, once the mediator decides to serve in a dispute, the foremost aim is to assist the
disputant come to a settlement on terms they find acceptable. The mediator should let his own preferences
become decisive and bring the discussion to a close only if what the parties propose is illegal or at odds with
fundamental values that supported the mediator’s original commitment to serve.
Where disputants decide, keeping in mind their priorities, that certain terms of settlement are acceptable, the
mediator should question the settlement terms only to ensure that the settlement terms promote or secure the
parties’ interests. The consideration that a disputing party may have gained more through any other mode of
dispute resolution or that the course of action chosen by the parties is different from prevailing practices or
the mediator’s belief system is also not relevant. Similarly, if the disputants decide that they will prefer to have
no written settlement agreement at all than adopt settlement terms they have considered, that is also alright.
The mediator’s job is to increase informed decision making, spark creativity in the discussions and increase
the probability of the disputants developing an acceptable settlement.
It is significant to appreciate the difference between a mediator who does not let a mediation proceed because
he thinks that the unequal bargaining power among the parties is so tilted that one party is unable to
participate competently in making joint decisions from the mediator who tries to stop a mediation settlement
because the disputing parties are about to accept settlement terms that the mediator personally does not
approve of or in his opinion is not wise, efficient or maximising their general well-being. The former is
appropriate; the latter oversteps the mediator’s role.
Being Neutral
The mediator should not have fixed notions that particular issues should be resolved in a specific way rather
than another. That is sufficient to meet the standard of neutrality. Remaining neutral is of prime importance.
If the mediator is not neutral, then one of the disputing parties will automatically construe, correctly, that the
party is at an immediate disadvantage and that the mediator and the other party are ganging up on her. Such a
hostile situation can never lead to a successful resolution.
Yet, in reality it is difficult to remain neutral. At the end of the day a mediator is also a human being. Our
sense of what is fair not just for our self but also for all others is very acute. A mediator who sees an
individual about to agree to terms that are less favorable than those possibly available in court is particularly
prone to steering discussions in one party’s favor. People have great difficulty in letting others decide for
themselves how they want to live. However, paternalistic attitudes are inconsistent with effective conduct of
mediation.
Hence, mediators must be realistic about how much neutrally they can behave. A mediator can never
guarantee when his sense of fairness will trigger involuntarily. It is not possible for any thinking person to be
neutral on every possible negotiating issue. We all have specific convictions about employment terms, public
safety policies, energy plans, abortion, caste/religious discrimination and a host of other challenges that
confront us in our personal and social life. There is no reason to apologise for our strong convictions. Yet,
when acting as a mediator, a mediator should acknowledge that having strong personal convictions which not
only does he wish to adopt but also wishes to be reflected in the world around him may disqualify him from
being a mediator in disputes involving those issues. Since no one is neutral about all possible negotiating
issues or negotiating parties, no one can plausibly represent himself as being able to mediate all disputes. Once
the mediator realises that the dispute involves issues on which he has strong personal opinions, the mediator
must excuse himself from mediating the dispute and refer the dispute to someone else.
Being perceived as neutral is as important as being neutral. Hence, a mediator should not undertake
assignments in which the mediator’s family, friends or associates are involved. When a mediator mediates a
dispute between known parties, the known parties enter the mediation room with pre conceived notions not
Page 4 of 9
PRACTICAL CHALLENGES
just about each other but also about how the mediator is perceiving them. This makes resolution of the
dispute more complicated than it already is. People do not want their near and dear ones to know the dirty
details of their lives. They do not wish to expose their vulnerabilities in front of someone they may have to
deal with on a regular basis in their life. All these factors affect the perception of the disputing parties about
the neutrality of the mediator. Finally, these factors affect the outcome of the mediation.
It is also important to understand that neutrality and impartiality go hand in hand. Impartiality often means
freedom from bias, favoritism or prejudice. Impartiality requires a mediator to treat parties equally manner.
For instance, the mediator should provide each disputant with an equally comfortable chair, sustain equal eye
contact with each of them for an equal duration, provide all with an opportunity to speak for equal durations
and meet with each party separately when conducting a caucus. This functional equality is, in many ways,
easier to monitor than a mediator’s duty to be neutral with respect to outcome.
Giving your Opinion on whether a Settlement Offer is Fair or Reasonable
It is very common for the disputing parties to ask a mediator what the mediator would do if they were in their
situation. A party always tries to gain the mediator’s support, wanting the mediator to agree that its proposal is
fair or reasonable or that the party is acting ‘in good faith’. The mediator must resist all such attempts.
Consider the consequences.
If the mediator concurs with a disputing party that its offer is ‘fair’ or ‘reasonable’ then any proposal that does
not match the offer will automatically be labeled ‘unreasonable’. No longer will it simply be the disputant
alone who believes that the other party’s proposal is unreasonable. Instead, the disputant will further boast
that even the ‘object, impartial and third party unrelated’ mediator believes the proposal is unreasonable. Post
this statement, the neutrality of the mediator will automatically become questionable and one disputing party
will forever be left with the perception that the mediator is sympathetic towards the other disputant and that
the mediator cannot facilitate a settlement which shall benefit both the parties.
Hence, if a disputing party asks the mediator for what they would do in their situation or whether the offer
being made is reasonable, the mediator’s response must be prompt and uniform. The mediator should put the
responsibility right back on the party asking such question. His ideal response would be: “It is not important
whether I believe the proposal is reasonable. The question is whether it is an arrangement that the two of you
endorse.” However, there may come a point in the mediation proceedings when the disputants are completely
bereft of new ideas, are frustrated with no movement and want the mediator’s best judgment as to what the
settlement terms should be. If the mediator denies this opinion at this point, the parties may feel that the
mediator is not willing to take responsibility and is brushing it off on the disputants.
Making Formal Settlement Proposals
A mediator’s proposal is a formal recommendation of how unresolved issues should be settled. The goal of
such a proposal is to recommend terms that the parties will accept. If the proposal is successful, parties adopt
the recommendations as a package and a resolution is secured.
Generally, due to various practical reasons that hamper the mediation process, a mediator resists the request
to make formal settlement proposals. Firstly, nobody cares for free advice - not even the disputing parties
themselves. There is a great possibility that the proposal submitted by the mediator shall be construed as the
mediator’s opinion on the matter and may be used to disprove his neutrality. Parties often ask for the
mediator’s assessment early in the discussions. If the mediator gives the settlement proposal at the early stages
of mediation, this will undermine the principle that parties must take responsibility for resolving their own
disputes. This will also put the mediator in the posture of making recommendations that are not grounded in
an enriched understanding of the parties’ history and interests.
Instead, the mediator must resist making formal proposals as much as possible. Helping people resolve their
Page 5 of 9
PRACTICAL CHALLENGES
concerns requires effort. If the mediator’s effort to help others resolve their dispute is to succeed, then the
mediator should be more focused in motivating the parties to help him understand the dynamics of the
dispute and facilitate discussion and settlement between the disputants. Offering solutions too quickly
converts a mediator into a consultant. Finally, people are attached to and give greater importance to
settlement terms which they themselves have devised and when they have played a meaningful role in
developing the settlement terms.
However, if the mediation process has extended beyond the preliminary stages and is at a stage where the
disputants are unable to brainstorm mutually acceptable solutions, a mediator may be required to submit a
formal proposal. At such times the mediator should make a proposal not on the basis of what he personally
believes is a fair or reasonable resolution of the dispute. Instead, the mediator should take what he has learned
from the parties in their joint sessions and caucuses, considers their respective needs, interests, and
constraints and propose specific settlement terms that he believes the parties will accept not what he thinks
what will be ‘in their best interest’. The mediator should always remind himself that he is not a judge and does
not have the authority to decide on the rights and duties of the parties, nor does he try to split everything in
half. Instead, the mediator tries to shape a future relationship that is workable and responsive to their most
important interests and concerns.
As explained earlier, once the mediator makes a formal proposal, the mediator may not be perceived as a
neutral, third party by the disputants. His usefulness will be severely restricted, if not eliminated. There are
three possibilities in this situation:
•
If the parties accept the proposal, the mediation may be considered successful and the matter will be
closed;
•
If the parties alter only limited aspects of the proposal, the mediator can help them do so. The parties
will then accept the proposal and the mediation will again be successfully closed with the parties
having a ‘feeling of accomplishing something’; but
•
If the parties do not agree to the majority recommendations made by the mediator or a substantial
number of them, then they will probably not trust his subsequent efforts to help them reach an
agreement, for they will justifiably believe him to be an advocate for his own proposals rather than
someone neutral.
There is a likelihood that the party who feels disfavoured by the proposal shall storm out. Given that reality, a
mediator makes a formal settlement proposal only after:
•
He has persistently tried all avenues for the parties to explore all settlement options and have not
been able to come to a final settlement;
•
All the parties think that the mediator should submit a formal proposal; and
•
The mediator warns the parties that he may not be useful to them as a mediator after making the
recommendation.
The one context in which the mediator’s formal proposal is very useful and certain to be adopted is when the
proposal simply recommends settlement terms that the parties have indicated they will accept during the
private caucus. There are some other times when the parties need a scapegoat to put the entire load on in
order to settle. There may be situations where the parties request the mediator to make a proposal as a means
of saving face. They can then accept the proposal of the mediator (which is internally acceptable to them) and
then boast that they agreed to proposals advanced by a neutral party but did not cave into their counterpart’s
proposal. The mediator’s formal proposal satisfies this need perfectly.
Dealing with an Impasse
Page 6 of 9
PRACTICAL CHALLENGES
When the mediation reaches a situation in which no progress is visible on the horizon, the mediator must
have the disputants examine their BATNA in the event the do not settle. This is a kind of reality check where
the parties examine the costs of not settling. If alternatives to settlement appear more attractive to one or
more parties, there will be no settlement and the discussions will terminate. However, this answer may seem
too easy a response to such an important challenge. But the response is correct; it is the challenge that has
been miscast. What is more important in this situation is the crucial assessment that the mediator must make.
He must assess not what strategy the mediator should employ if the parties reach impasse but rather, are the
parties really at an impasse.
Our conventional image of people at an impasse is that they are deadlocked on some matters. They have
exchanged proposals and ideas, perhaps even made some compromises, but now they refuse to budge from
their announced positions. They may push events to the brink of disaster in order to achieve the most
advantageous outcome. They may break off discussions and pursue independent courses of action to protect
their interests. However, this conventional image of impasse in our heads may be misleading. In mediation,
the mediator must view the concept of impasse as a change that is so slow it is not noticeable at first. An
impasse does not exist for simple reasons like people have proposed incompatible solutions to various
negotiating issues. Had this been the case, disputing parties would reach impasse the moment they offered
different solutions to the various issues in dispute.
The entire process of mediation revolves around people offering incompatible solutions during the
negotiation till the finally come to a mutually acceptable solution. Hence, it is important to evaluate whether
the situation is really an impasse. The key criterion for determining whether impasse really exists is the degree
to which a party is committed in pursuing non negotiated solutions if its preferred solution is not adopted.
Looking at the concept of impasse from this perspective generates two conclusions: first, in some contexts,
parties can reach impasse very rapidly; second, the greater is one party’s need to secure the other’s
cooperation in order to achieve its own goals - the more they are ‘married’ to one another - the less likely it is
that they will ever really reach an impasse (even if they claim to beat that point).
Often during negotiations, we reach impasse over some issue, more often than not on money and we tend to
quickly move on. Many times we do not pursue the discussion because we believe we can get what we want
elsewhere if not here. However, if what we are seeking is scarce and only our negotiating counterpart can
provide it to us, then our mobility is restricted. We must find a way to gain a settlement.
Sometimes the parties claim they are at impasse, but they really are not. They may be stuck; they may breakoff
discussions for a while. In a very practical sense, the parties must reach an agreement. That does not mean, of
course, that the process of doing will not involve anger, grief, harsh words, stoppages in the work, etc.
Ultimately, however, the parties must continue to live with one another - ideally they will strike a deal.
A mediator analyses two elements when assessing whether the parties have reached impasse. First, he
examines whether the parties have a relationship such that non negotiated solutions are a practical alternative.
Second, he examines the parties’ stated and unstated positions to see whether he can detect any flexibility in
them.
The mediator wants to analyse the parties’ relationship to determine their relative degree of interdependence;
the higher it is, the less likely that they will reach impasse. Parties do not need to be ‘married’ to each other in
order for their relationship at a particular time to be such that they have no practical alternative to working
out an acceptable solution.
The stronger the interdependence among the parties, the more susceptible they are to being persuaded to find
an acceptable resolution. That should prod the mediator to redouble her efforts to generate movement from
Page 7 of 9
PRACTICAL CHALLENGES
the parties. He has an arsenal of persuasive techniques at his disposal, and he must try them repeatedly. He
must probe for the slightest hint of flexibility by re-examining the parties’ stated and unstated priorities,
reviewing the facts and their ambiguities, studying the language in which proposed settlement terms are
couched, and monitoring the rate and extent of concessions and counteroffers that the parties have made.
Before appealing to the costs of not settling, the mediator must be certain he has accurately read each party’s
movements and appreciates its constraints. He must not hesitate to acknowledge an impasse if it arises, but,
more than anyone else he must not do so precipitously. The parties and observers quickly become
discouraged by apparently clashing, immobilised public positions; the mediator must be more subtle and
persistent.
Whatever the parties say about their fixed positions, ‘impasse’ is only reached when everyone walks away.
Use of Information Gained through Caucus
The ethical dilemma of using information obtained by a mediator through caucus is more apparent than real.
This challenge arises only because the mediator chose to caucus. Once the mediator has such information he
must immediately realise that he has been given leverage for gaining settlement on any outstanding unresolved
issues. The mediator can pursue that line of inquiry because of additional resources with which she has to
work.
Mediator’s Role in Implementation of Settlement
Ideally, a mediator should not interfere in the implementation of the settlement agreed between the parties. A
mediator must be a catalyst in spurring parties to reach agreement; he must not be an ever-present crutch for
them. At least four problems arise when a mediator assumes an integral role in the implementation of the
settlement. First, the neutrality expected of a mediator can be incompatible with the role of a compliance
officer. Making the transition from a facilitating posture to a monitoring role is particularly difficult where
parties appropriately do not view the mediator as the authoritative figure that the role of compliance officer
requires.
Second, if the people responsible for implementing the agreement are the same as those who developed it,
they may tend unproductively to revisit with the mediator what happened in the mediation. Focusing on the
past rather than the future can impede the effective implementation of the agreement.
Third, if the people implementing the agreement were not participants in the mediation, they may
understandably want the mediator to ‘clarify’ the various terms to which the bargaining parties agreed. Often,
for example, representatives of an employer and a union negotiate an agreement that personnel at the building
or local level are responsible for implementing, or leaders of a community organisation negotiate with officials
of a private corporation to establish a summer employment program for local youths and lower - echelon
personnel from both organisations are charged with implementing the program.
In such situations, the new players need to develop their own dynamics of interaction. They need to take
charge of the terms of agreement and create a shared understanding of their meaning. If the mediator is
viewed by these participants as the expert who can clarify the original intent of a particular term or clause, that
developing synergy among the parties is disrupted and the mediator is converted into an umpire.
Finally, if the mediator anticipates having the role of compliance officer, he may be unproductively cautious in
doing his job. A mediator takes risks when prodding parties to consider their interests and reconsider their
positions. He cannot constrain his efforts for fear that he will undermine his effectiveness during the
implementation phase. A mediator is not irreplaceable; others can monitor the agreement.
There is, of course, another way in which the mediator might be asked to participate in implementing the
agreement: the parties might ask the mediator to participate because he has the requisite expertise that the
Page 8 of 9
PRACTICAL CHALLENGES
parties have agreed to obtain as part of their agreement. Should he agree to serve? Absolutely not. No one is
indispensable. The mediator may be the acknowledged expert in a particular professional field. If he chooses
to serve as a mediator, however, he must not use that role as a conduit for obtaining other business.
Otherwise, no party could ever be certain that a mediator was prodding them toward settlement terms that
matched their priorities rather than the mediator’s business needs.
Requirement of Co-Mediator
Having a team comprised of two or more mediators can serve many purposes. In a divorce mediation, for
example, having female and male mediators who respectively have law and mental health backgrounds can be
helpful - both for gender balance and for bringing in relevant knowledge from two professional fields.
Sometimes, one proposed mediator has process expertise but lacks substantive expertise and can
constructively partner with someone who has relevant knowledge in the subject matter of the dispute intellectual property, securities, or international trade. An apprentice mediator can productively partner with a
seasoned mediator for training purposes. Often, ethnic or religious diversity is helpful on a mediation team.
The synergy of two mediators offers a variety of advantages.
Compared to a solo mediator, two mediators can offer twice the listening capacity; the insights and expertise;
the opportunity for parties to make meaningful connections; the patience and stamina; and the creative
potential. Two mediators can model constructive modes of communication and decision-making. Two
mediators can make the mediation more efficient by dividing up tasks - one mediator can work on the
agreement, for example, while the other continues to wrap up a final issue. A team can also learn from one
another.
On the other hand, co-mediation can be fraught with tensions and difficulties. If the two mediators are not ‘in
synch’, there is the possibility for unproductive competition, for a less dominant mediator to feel ‘side-lined’,
for the mediation to take longer due to difficulty in making decisions, and for efforts to be made that pull the
mediation in different directions. Two heads can be worse than one.
To be effective in serving the parties, a co-mediation team must share the same philosophy and approach. Do
both believe, for example, that parties should participate if possible? That a caucus should be used only if
necessary? That mediators should not give evaluations or make proposals? If co-mediators share similar
perspectives on these matters, they can render significant, efficient service to the parties; if they disagree, they
generate process inefficiencies and quite possibly, significant party frustration.
Multi-Linguistic Mediation
If one or more participants do not speak the language in which the mediation is being conducted, an
interpreter should be used. Mediation is a process to enhance communication and understanding. It is critical
that everyone understand what is being said. A professional interpreter means that the interpreter - like the
mediator - will be neutral and will not selectively translate what has been said or re-frame and re-interpret
parties’ remarks.
A skilled interpreter can provide simultaneous translation so that he translates as a party speaks, just a beat
behind. This allows for conversations to proceed in a natural manner. Where accuracy is critical, the
interpreter might use consecutive translation, allowing a speaker to complete a sentence or a thought before
interpreting.
The interpreter is there for all participants to fully understand the proceedings - for the person who does not
speak the language that the mediation is being conducted in, but, equally important, for others to understand
that person too. The parties should be encouraged not to speak to the interpreter, but rather to speak to one
another with the interpreter enabling comprehension of what is said by all to all.
Page 9 of 9
PRACTICAL CHALLENGES
A practical danger in many mediation settings is that a party’s ‘best friend’ is the only ‘language interpreter’
available. In such instances, a mediator proceeds cautiously, gently prodding the ‘advocate’s interpreter’ to
provide as objective a translation as is possible while acknowledging the difficulty for that person to distance
himself intellectually and emotionally from the substantive controversy.
End of Document
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
Do not be afraid of laws and courts. They are like the monster you thought was hidden under your bed when
you were three years old. The moment you gained courage to peek under your bed, you realised there is no
monster. Always remember that ignorance is not an excuse. You cannot go against the law and tell the court
you did not know such a law existed. So, ignorance of law is no excuse. You cannot pacify yourself by telling
yourself that you did not claim your rights because you did not know you had such a right under Indian laws.
Laws promoting parties to opt for mediation have increased manifold since we first wrote this book which is
encouraging in a way. When legislations start advocating a particular tool repeatedly, it shows the acceptance
of the tool by the legislature. When more courts apart from the Supreme Court of India and some proactive
High Courts start culling out all matters amenable to mediation, it will show an increasing acceptance of the
judiciary towards mediation as a tool to streamline the overburdened court dossier.
But at the same time, it brings us to an important question. Do we really need all the laws to mention
mediation as a tool? Do we need a standalone law governing mediation in India? How many laws are enough
and how much will become too much?
End of Document
A LAW FOR MEDIATION IN INDIA
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
A LAW FOR MEDIATION IN INDIA
The authors have been fortunate enough to work with various branches of the government in promoting the
laws governing mediation in India. The experience of providing inputs on laws and our constant interaction
with law makers, practitioners and consumers brings us face to face with some questions that are commonly
discussed in all these stakeholder groups. We begin with a disclaimer- this is a grey area where every
stakeholder category and every participant of every stakeholder category has very strong views. In this space,
we try to capture our two paisa worth.
There is no doubt that when legislations acknowledge new problem-solving tools like mediation, it gives
mediation a sense of official legitimacy. People tend to start writing about them and reporting them in media.
The outreach and advocacy increases. We stumbled upon an example on this. We all assume that negotiations
are something that do not require legislative sanction or handholding. But a good example of law leading the
sheep is a guidance note issued by the government of United Kingdom on re-negotiating contracts and
settlements in light of COVID-19 outbreak.1 It emphasised on responsible contractual behaviour and acting
responsibly. It also most interestingly requested parties to participate in mediations in good faith and respond
to mediation requests. The guidance note is an example of legislative approval to the practice of
transformative negotiation- a practitioners’ movement that is at least 10 years old and the authors heartily
support. It gives practitioners like us a chance to exhort stakeholders- look even the government of UK
thinks it is important to take this approach to contract re-negotiation and contractual mediations. Those are
perhaps some positive attributes of legislating on mediation.
Then one comes to the substance of the legislation. The substance of the legislation depends a lot on the
quality of background work, forethought and expert consultation that has gone behind preparing the
legislation or delegated legislation (like rules, regulations, notifications and circulars). This is especially
important in new and misunderstood subjects like mediation. It is also fraught with governmental constraints.
There have been times when arbitrators and counsels have been consulted and quoted in reports backing
mediation legislations. But then there is the problem of easy availability of mediation experts for consultation
and also, knowledge on who is actually an expert in the subject. When it comes to the substance of mediation
legislations in India, the provisions mostly link usage of mediation upon commencement of or during the
court proceedings. This has then led to the myth that mediation is a court annexed tool or a tool that can be
used along with arbitration only. Unfortunately, although this has made mediation popular, it has dwarfed the
most powerful aspect of mediation- the confidentiality and quickness of private mediation that happens much
before any of the parties even consider going to court. Internationally, practitioners agree that private
mediations that happen right after parties discover their disputed claims (before or after issuing a legal notice)
have higher possibility of successful settlement and are much quicker to settle.
Page 2 of 2
A LAW FOR MEDIATION IN INDIA
From a cost-benefit analysis perspective, one would have thought that this would be the most impressive
aspect of using mediation for consumers. However, consumer consultation shows that business users of
mediation are more concerned about the enforceability of the outcome of mediation settlement agreements.
This goes to show how continuously using legislative and judicial approvals to promote a mechanism is a
double-edged sword. The common market perception is that arbitration is more preferable as compared to
mediation because an arbitration award or an arbitration consent award or even a conciliation agreement is
enforceable in a court of law under the Arbitration and Conciliation Act, 1996. At the same time, as per a survey
conducted by Centre for Mediation and Conciliation, Bombay Chamber of Commerce and Industry, 80-90%
arbitration users in India are not satisfied by the speed and efficacy of arbitration enforcement in India. At the
essence of it all lies the fact that mediation settlement does not need the sanction of any third-party authority
to increase its enforceability. Parties come to the mediation table to a facilitated negotiation voluntarily. They
are free to walk out whenever they please. They model their own settlement terms. They sign the settlement
agreement only when they are fully satisfied it makes sense to them. If this is the case, it does not make
commercial sense for a party to spend so much effort in negotiating settlement terms and then not follow
through on what it agreed. Regardless, giving mediation settlement equivalent sanctity to arbitration consent
awards is a popular movement in India and has been captured in recent legislations as you shall read below.
The next necessary questions are whether legislation is necessary and the importance of legislation that
translates to real practice instead of remaining a paper tiger. The authors believe that the beauty of mediation
is in the minimalism of rules and flexibility of process design. Even if a legislation is brought in, its purpose
shall be to act as a soft tool to debunk common myths on the key tenets of mediation- party autonomy,
confidentiality, the principle of without prejudice specially in relation to evidence and good faith participation.
Excessive legislation on adherence to various steps and formalities to initiate mediation or at various stages in
the mediation take away the focus of the parties from the essence of the matter- problem solving and dispute
resolution. Jurisdictions like Italy and Spain faced the problem of failing mediation due to excessive paper
work and procedural formalities. It also ties the hands of practitioners to tailor make suitable environment for
mediation discussions. Legislation however, is important for uniformity in terms of not just the key principles
but also training, grading, accreditation and specialisation of mediators. It is also important to relook at the
common entry qualification criterion laid down for mediators in India.
1
Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency,
Cabinet Office of the Government of United Kingdom dated 7 May 2020.
End of Document
INDUSTRIAL DISPUTES ACT, 1947
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
INDUSTRIAL DISPUTES ACT, 1947
The Industrial Disputes Act is a law which was passed at the cusp of independence in India on 11 March 1947.
Post-independence, this law has been barely seen any drastic changes. Nevertheless, it was the first law to
mention ‘conciliation’ as a mode of settling disputes in India.
The Industrial Disputes Act is a detailed law dedicated to solving disputes between the workmen and the
industry. When a common man hears the word ‘industry’, we tend to visualise a huge factory with chimneys
coughing smoke intermittently in our minds. Yet, the term ‘industry’ under the Industrial Disputes Act has a
very wide scope. This Act applies to all establishments and undertakings carrying on any systematic activity by
co-operation between an employer and his workmen for the production, supply or distribution of goods or
services. Many sectors like agriculture are excluded from the scope of this law. Many States through their
industrial policy also exclude many industries from compliance of the Industrial Disputes Act. One very
common example of such excluded sectors is the Information Technology (IT) and Information Technology
Enabled sector (ITES). Also, employees working in managerial and administrative capacity cannot avail any
benefits under this Act.
The conciliation process under the Industrial Disputes Act is meant for disputes between the employer and the
employees which is connected with the employment or non-employment or the terms of employment or with
the conditions of labour. Again, although the process under the Industrial Disputes Act is called ‘conciliation’,
the process is more or less similar to the court system.
Firstly, the Industrial Disputes Act provides for two ways in which a settlement can be reached in an industrial
dispute between an employer and an employee.
1. A settlement which is arrived at in the course of conciliation proceedings, i.e., which is arrived at with
the assistance and concurrence of the conciliation officer who is duty bound to promote a settlement
and to do anything he can to induce the parties to come to a fair and amicable settlement of dispute,
and
2. A written agreement between the employer and employee arrived at otherwise than in conciliation
proceeding.
The legal effect of both the kinds of settlement is different. The written agreement between the employer and
the employee is a private settlement. The terms of this settlement will be binding only on the parties signing
the agreement. The other employees cannot use the agreement as a precedent in their future negotiations.
Since this is a private agreement, the employer can also require the employee to keep the terms of the
Page 2 of 3
INDUSTRIAL DISPUTES ACT, 1947
settlement confidential and not disclose it to any other person concerned with the establishment or any third
party such as the media.
On the other hand, an agreement arrived at during the conciliation proceedings binds all the present and
future agreements and all the workmen, whether or not party to the dispute who are part of the establishment
at the time of the dispute as well as persons who join the establishment in the future.
Under the Industrial Disputes Act, the conciliation machinery consists of the following two tiers:
1. Conciliation Officer
2. Board of Conciliation
1. Conciliation Officer: Required numbers of conciliation officers are appointed by the Government in whose
jurisdiction the disputes fall under the Industrial Disputes Act. At the State level, the Commissioner/Additional
Commissioner/Deputy Commissioner are appointed as conciliation officers. These conciliation officers can
undertake conciliation for undertakings employing 20 or more persons, at the State level. At the Centre,
officers from Central Labour Commission office are appointed as conciliation officers. Every conciliation
officer enjoys the powers of a civil court. Hence, he functions like civil court. He listens to both the parties
and is allowed to take evidence. The conciliation officer is required to deliver a judgment within fourteen days
from the date on which the conciliation proceedings commence. The judgment delivered by the conciliation
officer is binding on the disputing parties just like a judgment of any other court in India.
2. Board of Conciliation: When the conciliation officer is unable to resolve the conflict between the disputing
parties, the Government can appoint a Board of Conciliation as an appellate stage in the dispute resolution
process.
Thus, the Board of Conciliation is not a permanent institution like the conciliation officer. It is an ad hoc body
consisting of a Chairman and two or four other members nominated in equal numbers by the parties to the
dispute.
The Board of Conciliation also exercises the powers of civil court. So, the appointment of a Board is similar
to reference of a matter to a larger bench of a court with more judges and more authority to bind the parties.
The Board also undertakes conciliation between the disputing parties by following the same conciliation
process used by the conciliation officer. The Board is required to deliver a judgment in two months from the
date on which the dispute was referred to them.
Appointment of the Board of Conciliation is very rare for the settlement of disputes in India. In practice,
disputes under the Industrial Disputes Act are generally settled by a conciliation officer.
In case of failure of conciliation (FOC) a report is sent to Government (IR Desks in Ministry of Labour). The
Ministry of Labour after considering the FOC Report exercises the powers available to it either referring the
dispute for adjudication or refusing to do so.
In practice, the process of conciliation under the Industrial Disputes Act has repeatedly failed to resolve disputes
between the employers and the workmen. Many recent conciliation proceedings under the Industrial Disputes
Act have come to a deadlock and consequently, become entangled in court proceedings. The deadlock
between the Bank Employees Union and the Indian Bank Association has led to repeated strikes of the
employees which gravely affects the Indian banking sector. Similar deadlock was seen some time back
between Air India and its employees’ union.
One of the reasons why conciliation has been placed as a mechanism to resolve industrial disputes is because
Page 3 of 3
INDUSTRIAL DISPUTES ACT, 1947
when workers go on strike, the wheels of production and economy come to a standstill. This results in loss
for the industry as well as the employees. An amicable agreement which can fortify the relationship of the
industry with the employees and prevent repetition of the same dispute is needed in such cases.
However, in reality, the essence of conciliation is lost under the proceedings of the Industrial Disputes Act. The
parties do not get any say in the final outcome or terms of settlement of the matter. They put forth their
problems in the formal format of written pleadings which are also drafted for them by a professional. There is
no scope to explore the actual underlying issue in the dispute. There is no scope to eliminate the root cause of
the problem. The conciliation under the Industrial Disputes Act is nothing short of the court adjudication of a
dispute. It is too formal and distant to be actually associated with conciliation, let alone mediation, which is a
more informal and a personal means of alternate dispute resolution. It may not be right to lay the entire blame
of system failure on the persons implementing the system like the Government or the conciliation officer.
When the tools provided to a workman are ineffective, you cannot expect the workman to work miracles.
End of Document
CODE OF CIVIL PROCEDURE, 1908
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
CODE OF CIVIL PROCEDURE, 1908
The Code of Civil Procedure, 1908 (generally called CPC) lays down the procedure which the courts will follow to
adjudicate any dispute brought before them. Section 89 of CPC empowers the civil courts to refer matters to
alternative dispute resolution methods - arbitration, conciliation, judicial settlement including Lok Adalat and
mediation.
However, this section should not be read in isolation. To give full meaning to the provision, it must be read
with rules 1A, 1B and 1C of Order X, CPC. Upon reading section 89 with rules 1A, 1B and 1C of Order X of
CPC, the procedure which can be culled out is as follows:
•
The court will record the admissions and denials of the parties in relation to the dispute;
•
If it appears to the court that there exist elements of a settlement which may be acceptable to the
disputing parties;
•
The court shall formulate the terms of settlement;
•
Such terms of settlement will be given by the court to the parties for their observations;
•
After receiving the observations of the parties, the court will further have the power to change the
terms of a possible settlement as per its discretion;
•
Next, the court will give an option to the parties to choose any one of the four dispute resolution
mechanisms listed above (arbitration, conciliation, judicial settlement including Lok Adalat and
mediation);
•
Finally, the court will refer the matter to one of the following four modes of alternative dispute
resolution:
•
○
Arbitration;
○
Conciliation;
○
Judicial Settlement including Lok Adalat; and last but definitely not the least,
○
Mediation.
The court will fix the date of appearance before the forum or authority for the alternate dispute
mechanism (ADR) chosen by the disputing parties;
Page 2 of 5
CODE OF CIVIL PROCEDURE, 1908
•
The parties will then appear before the ADR authority opted by them on the date set by court and try
to resolve the dispute through the alternate method. This generally takes more than one meeting or
appearance;
•
However, if the ADR authority is of the opinion that it would not be proper in the interest of justice
to proceed with the matter further, then it shall again refer the matter back to the court and direct the
parties to appear before the court on the date fixed by it.
Where a dispute is referred to mediation, the court endeavours to affect a compromise between the parties
through a further process which may be prescribed. Unfortunately, there are no prescribed rules which
uniformly govern all mediations in India. Generally, each mediation centre formulates its own rules and has its
own procedural practices.
This provision of law which is presently the most often used mechanism in India to refer the parties to
mediation is also considered one of the most incorrectly drafted pieces of law in India. The Supreme Court of
India in Afcons Infrastructure Ltd. v Cherian Varkey Construction Co. (P) Ltd.2, a landmark judgment on Section 89 of
CPC expressed this anguish of the bar and bench in the following words:
If section 89 is to be read and required to be implemented in its literal sense, it will be a Trial Judge’s nightmare. It puts the cart before the horse and lays down an
impractical, if not impossible, procedure in sub-section (1). It has mixed up the definitions in sub-section (2). In spite of these defects, the object behind section 89 is
laudable and sound. Resort to alternative disputes resolution (for short ‘ADR’) processes is necessary to give speedy and effective relief to the litigants and to reduce the
pendency in and burden upon the courts. As ADR processes were not being resorted to with the desired frequency, Parliament thought it fit to introduce section 89 and
rules 1A to 1C in Order X in the Code, to ensure that ADR process was resorted to before the commencement of trial in suits. In view of its laudable object, the
validity of section 89, with all its imperfections, was upheld in Salem Advocate Bar Association v UOI reported in 2003 (1) SCC 49 - for short, Salem Bar - (I)
but referred to a committee, as it was hoped that section 89 could be implemented by ironing the creases.
Section 89 of CPC was first challenged before the Supreme Court in the famous Salem Bar Association cases
(popularly known as Salem Bar Association Case I and Salem Bar Association Case II). In Salem Bar Association
Case II3 the Supreme Court has made the following important observations about the mediation mechanism
under section 89 of CPC:
•
Under section 89 of CPC, when it is provided that the Court will formulate a ‘settlement’ and refer it to
one of the ADR mechanisms, it only means that what is referred to one of the ADR modes shall be
the dispute which is summarised in the terms of settlement.
•
The provision is drafted such that a doubt arose whether the terms of compromise are to be finalised
by or before the mediator or by or before the court. The Supreme Court clarified that all the four
alternatives, namely, arbitration, conciliation, judicial settlement including settlement through Lok
Adalat and mediation are meant to be the action of persons or institutions outside the Court and not
before the Court. In fact, the court is not involved in the actual mediation/conciliation.
•
When mediation succeeds and parties agree to the terms of settlement, the mediator will report to the
court and the court, after giving notice and hearing the parties, ‘effect’ the compromise and pass a
decree in accordance with the terms of settlement accepted by the parties.
•
The court which refers the matter to mediation/conciliation is not debarred from hearing the matter
where settlement is not arrived at. The judge who makes the reference only considers the limited
question as to whether there are reasonable grounds to expect that there will be settlement and on
that ground he cannot be treated to be disqualified to try the suit afterwards if no settlement is arrived
at between the parties.
•
With a view to enable the court to refer the parties to mediation, where parties are unable to reach a
consensus on an agreed name, there should be a panel of well-trained mediators to which it may be
possible for the court to make a reference.
Page 3 of 5
CODE OF CIVIL PROCEDURE, 1908
•
The court acknowledged that section 89 maintains a fine distinction between conciliation and
mediation, accepting the views of an international author that in ‘conciliation’ there is little more
latitude and conciliator can suggest some terms of settlements too (which a mediator cannot).
•
When the parties come to a settlement upon a reference made by the court for mediation, as
suggested by the committee, there has to be some public record of the manner in which the suit is
disposed of and, therefore, the court has to first record the settlement and pass a decree in terms
thereof and if necessary, proceed to execute it in accordance with law. It cannot be accepted that such
a procedure would be unnecessary. If the settlement is not filed in the court for the purpose of
passing of a decree, there will be no public record of the settlement. It is, however, a different matter
if the parties do not want the court to record a settlement and pass a decree and feel that the
settlement can be implemented even without decree. In such eventuality, nothing prevents them from
informing the court that the suit may be dismissed as the dispute has been settled between the parties
outside the court.
Yet, the provision was difficult to implement and again the Supreme Court4 intervened and further clarified:
•
The stage at which the court should explore whether the matter should be referred to ADR
processes, is after the pleadings are complete, and before framing the issues, when the matter is taken
up for preliminary hearing for examination of parties under Order 10 of the Code. However, if for
any reason, the court had missed the opportunity to consider and refer the matter to ADR processes
under section 89 before framing issues, nothing prevents the court from resorting to section 89 even
after framing issues. But once evidence is commenced, the court will be reluctant to refer the matter
to the ADR processes lest it becomes a tool for protracting the trial.
•
Though in civil suits, the appropriate stage for considering reference to ADR processes is after the
completion of pleadings, in family disputes or matrimonial cases, the position can be slightly different.
In those cases, the relationship becomes hostile on account of the various allegations in the petition
against the spouse. The hostility will be further aggravated by the counter-allegations made by the
respondent in his or her written statement or objections. Therefore, as far as Family Courts are
concerned, the ideal stage for mediation will be immediately after service of respondent and before
the respondent files objections/written statements.
•
If the reference is to arbitration or conciliation, the court has to record that the reference is by mutual
consent. Nothing further need be stated in the order sheet.
•
If the reference is to any other ADR process (including mediation), the court should briefly record
that having regard to the nature of dispute, the case deserves to be referred to Lok Adalat, or
mediation or judicial settlement, as the case may be. There is no need for an elaborate order for
making the reference.
•
The requirement in section 89(1) that the court should formulate or reformulate the terms of
settlement would only mean that court has to briefly refer to the nature of dispute and decide upon
the appropriate ADR process.
•
If the judge in charge of the case assists the parties and if settlement negotiations fail, he should not
deal with the adjudication of the matter, to avoid apprehensions of bias and prejudice. It is therefore
advisable to refer cases proposed for judicial settlement to another Judge.
•
If the court refers the matter to an ADR process like mediation but other than arbitration, it should
keep track of the matter by fixing a hearing date for the ADR Report. The period allotted for the
ADR process can normally vary from a week to two months (which may be extended in exceptional
cases, depending upon the availability of the alternative forum, the nature of case etc.). Under no
circumstances should the court allow the ADR process to become a tool in the hands of an
unscrupulous litigant intent upon dragging on the proceedings.
Page 4 of 5
CODE OF CIVIL PROCEDURE, 1908
•
Normally the court should not send the original record of the case when referring the matter for an
ADR forum. It should make available only copies of relevant papers to the ADR forum. For this
purpose, when pleadings are filed, the court may insist upon filing of an extra copy. However if the
case is referred to a court annexed mediation centre which is under the exclusive control and
supervision of a judicial officer, the original file may be made available wherever necessary.
To give finality and clarity for the use of section 89 of CPC, the Supreme Court summarised the way in which
matters should be referred to ADR mechanism as follows:
•
When the pleadings are complete, before framing issues, the court shall fix a preliminary hearing for
appearance of parties. The court should acquaint itself with the facts of the case and the nature of the
dispute between the parties.
•
The court should first consider whether the case falls under any of the category of the cases which are
required to be tried by courts and not fit to be referred to any ADR processes. If it finds that the case
falls under any excluded category, it should record a brief order referring to the nature of the case and
why it is not fit for reference to ADR processes. It will then proceed with the framing of issues and
trial.
•
In other cases (that is, in cases which can be referred to ADR processes) the court should explain the
choice of five ADR processes to the parties to enable them to exercise their option.
•
The court should first ascertain whether the parties are willing for arbitration. The court should
inform the parties that arbitration is an adjudicatory process by a chosen private forum and reference
to arbitration will permanently take the suit outside the ambit of the court. The parties should also be
informed that the cost of arbitration will have to be borne by them. Only if both parties agree for
arbitration, and also agree upon the arbitrator, the matter should be referred to arbitration.
•
If the parties are not agreeable for arbitration, the court should ascertain whether the parties are
agreeable for reference to conciliation which will be governed by the provisions of the Arbitration and
Conciliation Act. If all the parties agree for reference to conciliation and agree upon the conciliator/s,
the court can refer the matter to conciliation in accordance with section 64 of the AC Act.
•
If parties are not agreeable for arbitration and conciliation, which is likely to happen in most of the
cases for want of consensus, the court should, keeping in view the preferences/options of parties,
refer the matter to any one of the other three other ADR processes: (a) Lok Adalat; (b) mediation by
a neutral third party facilitator or mediator; and (c) a judicial settlement, where a Judge assists the
parties to arrive at a settlement.
•
If the case is simple which may be completed in a single sitting, or cases relating to a matter where the
legal principles are clearly settled and there is no personal animosity between the parties (as in the case
of motor accident claims), the court may refer the matter to Lok Adalat. In cases where the questions
are complicated or cases which may require several rounds of negotiations, the court may refer the
matter to mediation. Where the facility of mediation is not available or where the parties opt for the
guidance of a judge to arrive at a settlement, the court may refer the matter to another judge for
attempting settlement.
•
If the reference to the ADR process fails, on receipt of the report of the ADR Forum, the court shall
proceed with hearing of the suit. If there is a settlement, the court shall examine the settlement and
make a decree in terms of it.
Mediation in Representative Suits
The Supreme Court in Afcons Infrastructure Ltd. v Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24,
Page 5 of 5
CODE OF CIVIL PROCEDURE, 1908
famously held that representative suits are not suitable for mediation. A representative suit is a suit where one
or more persons files a suit representing to protect the rights and interests of a group or a community.
However, the Apex Court recently in the high profile Babri Masjid-Ram Janmabhoomi dispute held that there
is no bar to refer representative suits to mediation under Order I rule 8 of the Code of Civil Procedure, 1908. The
court qualified this by saying that once the parties reach a settlement, the court may decide on the required
grant of leave by the court for settlement as well as the required public notice which is required for
representative suits under O XXIII rule 3-B of the Code of Civil Procedure, 1908.5
Although the mediation did not reach settlement, the authors are of the opinion that the mediation definitely
assisted in de-escalation of the dispute and maintenance of peace in the area after the final order of the
Supreme Court was passed.
On the same day as the final arguments in the matter before the Supreme Court, the Sunni Central Waqf
Board submitted a signed term of settlement agreeing to relinquish all its rights, titles and interests subject to
certain terms and conditions. The Supreme Court held that since the settlement was not signed by all the
parties to the matter and was further conditional, it could not be treated as a binding, concluded agreement.6
So, it remains to be seen in the future how the application of O XXXIII rule 3-B plays out in mediation
settlement in representative suits. Any such settlement outside of court is generally called a community
mediation.
2
Afcons Infrastructure Ltd. v Cherian Varkey Construction Co. (P) Ltd, (2010) 8 SCC 24.
3
Salem Advocate Bar Association, Tamil Nadu v UOI, (2005) 6 SCC 344.
4
Afcons Infrastructure Ltd. v Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.
5
M. Siddiq v Suresh Das, (2019) 4 SCC 641.
6
M. Siddiq v Suresh Das, (2020) 1 SCC 1.
End of Document
ARBITRATION AND CONCILIATION ACT, 199656
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
ARBITRATION AND CONCILIATION ACT, 199656
As previously discussed, conciliation and mediation are considered to have the same meaning in India. Many
resource websites may tell you that mediation and conciliation are words that are used interchangeably in
dispute resolution. However, they are not. A brief overview of their difference is discussed in chapter IV
(Mediation - the Magic).
Conciliation prescribed under the Arbitration and Conciliation Act is very different from the procedure for
conciliation provided under Industrial Disputes Act. The differences can be tabulated as follows:
Industrial Disputes Act
Arbitration and Conciliation Act
Conciliation resembles the judicial process
Conciliation is prescribed as an alternate dispute resolution mechanism
Preliminary adjudication
Final adjudication of the dispute
Appointment of conciliator by the government
Conciliator is appointed by the disputing parties
Conciliator is duty bound to promote settlement of dispute
Conciliator is required to assist the disputants reach amicable settlement
Final outcome is passed as a judgment
Final outcome is recorded as a settlement agreement
Applicable only to industrial disputes
Applicable to all civil and commercial disputes
Conciliation under Arbitration and Conciliation Act may be resorted to for any disputes arising out of a legal
relationship whether contractual or not. Hence, the disputes that can be referred to conciliation under
Arbitration and Conciliation Act can be any dispute with a legal foundation. The scope of disputes which can be
referred to conciliation is wide and is not restricted to a commercial dispute or a dispute between an employer
and employee as under the Industrial Disputes Act.
However, a dispute cannot be referred to conciliation under Arbitration and Conciliation Act if any of the
following two conditions are met:
•
If an existing law provides a different dispute settlement mechanism and the disputants have executed
an agreement to get the conflict settled by a method other than conciliation, e.g., by resorting to
arbitration; or
•
There is a law barring conciliation for the kind of dispute in question.
Page 2 of 4
ARBITRATION AND CONCILIATION ACT, 199656
The net result is that the parties may get their disputes settled under Arbitration and Conciliation Act even if any
other mode of settlement is provided by any other law except, of course, where the conciliation proceedings
are absolutely barred by any law in force at that time or the parties have agreed that they will resolve their
disputes through a mechanism prescribed by any other law like arbitration or Lok Adalat.
The only lacuna in the law is that the term ‘conciliation’ is not defined. Since structured practice of mediation
and conciliation is new in India compared to many other countries in the world, a clear definition of
conciliation would have gone a long way in explaining the Do’s and Don’ts of the process.
The process of conciliation is initiated when one of the disputing parties wishes to initiate conciliation
proceedings and sends to the other party a written invitation to conciliate under the Arbitration and Conciliation
Act. This notice to initiate conciliation should also briefly identify the subject of the dispute. Conciliation
proceedings shall commence when the other party accepts in writing the invitation to conciliate. If the other
party rejects the invitation, there will be no conciliation proceedings.
Conciliation begins when the other party accepts in writing the invitation made in writing by the party
initiating the conciliation proceedings. Hence, initiating conciliation proceeding is similar to the acceptance of
offer under contract law but with some differences. Under contract law, once the acceptance of the offer is
communicated as against the acceptor, the contract is concluded, final and binding on the contracting parties.
On the other hand, in conciliation, the communication of offer and acceptance to initiate arbitration
proceedings should be in writing. However, this does not make the conciliation proceedings binding on the
disputants. They may at any time before executing the settlement agreement terminate the conciliation
proceedings. However, an executed settlement agreement is enforced by the court as if it is a decree.
Adopting a more timeline-based approach, the party sending the conciliation notice may specify a specific
timeline within which he expects a reply. If the party initiating conciliation does not receive a reply within 30
days from the date on which he sends the invitation, or within such other period of time as specified in the
invitation, he may elect to treat this silence of the other party as a rejection of the invitation to conciliate and
to make things more clear, the party who wished to initiate conciliation may inform the other party in writing
acknowledging the rejection of the offer to conciliate.
If the other party accepts the offer to submit the dispute to conciliation, the next step will be appointment of
a conciliator. Generally, there will be only one conciliator for reconciling the differences. However, the parties
may agree to appoint more than one conciliator also.
In conciliation proceedings with one conciliator, the parties may agree on the name of a sole conciliator. In
conciliation proceedings with two conciliators, each party may appoint one conciliator. In conciliation
proceedings with three conciliators, each party may appoint one conciliator and the parties may agree on the
name of the third conciliator who shall act as the presiding conciliator. Parties may also enlist the assistance of
a suitable institution or person in connection with the appointment of conciliators. Where there is more than
one conciliator, they are mandated, as a general rule, to act jointly. The conciliator and the parties are
obligated by law (i.e. Arbitration and Conciliation Act) to keep all matters related to the conciliation proceedings
confidential. This requirement to maintain confidentiality also extends to the settlement agreement except
where disclosure is necessary for the purpose of implementation and enforcement.
Another interesting thing to note is that the Arbitration and Conciliation Act permits the parties to engage in
conciliation process even while the arbitral proceedings are on. While the arbitration proceedings are ongoing,
the disputing parties may on their own initiate and settle the dispute through conciliation or authorise the
arbitrator himself to use mediation or conciliation and settle the dispute. Any settlement reached through
mediation or conciliation will again be recorded by the arbitrator in the form of an arbitral award. However,
the Act bars the initiation of any arbitral or judicial proceedings in respect of a dispute which is the subject
Page 3 of 4
ARBITRATION AND CONCILIATION ACT, 199656
matter of conciliation proceedings, except for the purpose of preserving the rights of the disputing parties.
That is, when the arbitral or judicial proceedings are on, the parties are even encouraged to initiate conciliation
proceedings but when the conciliation proceedings are ongoing, they are barred from initiating arbitral or
judicial proceedings.
The role of a conciliator during the course of conciliation proceeding is as follows:
•
Upon appointment, the conciliator may request each party to submit a statement explaining the
nature of the dispute and the issues involved. A copy of the statement submitted with the conciliator
should also be given to the other party. If the conciliator thinks it is necessary, he may require the
parties to submit additional written statements and evidence.
•
The conciliator shall at all times be independent and impartial.
•
The conciliator shall be fair, objective and just in his approach.
•
The conciliator shall consider the following:
○
rights and obligation of the parties;
○
trade and usage, and
○
circumstances surrounding the dispute, including previous business practices between the parties.
•
The conciliator can propose a settlement at any time and at any stage of the conciliation, either orally
or in writing, without giving any reasons for his proposals.
•
The conciliator can invite the disputants for discussion or communicate with them jointly or
separately.
•
When the conciliator receives any factual information from one party, he may disclose that
information to the other party and ask for any required explanation. The conciliator shall not disclose
this information if the party disclosing the information requires the conciliator to maintain
confidentiality.
•
If the conciliator thinks that there are acceptable elements of settlement between the disputants, he
can draft the terms of a possible settlement and submit the proposal to the disputing parties for their
observation.
•
The conciliator shall record the observations of the disputants and then reformulate the settlement
terms based on the parties’ observations.
•
If the parties reach a settlement, the disputing parties may draw up and execute a written settlement
agreement. If the disputants request, the conciliator can help them draw up the settlement agreement.
The settlement agreement prepared under the conciliation proceedings of Arbitration and Conciliation Act has
the same status and effect as if it is an arbitral award.
The process of conciliation under the Arbitration and Conciliation Act differs from the international best
practices of mediation in certain aspects. A conciliator is allowed to submit written proposals of possible
settlement terms and conditions to the disputing parties. He is allowed a power of suggestion and interference
in the decision-making process. On the other hand, a mediator can only use mediation techniques to remove
communication roadblocks between the parties, help disputing parties to communicate more effectively,
explore underlying needs and interests. In mediation, a mediator cannot prompt solutions to a dispute. He can
only aid the parties to remove the various hurdles which are not allowing the parties to effectively resolve the
disputes themselves. The disputing parties after extensive negotiation and effective communication come up
Page 4 of 4
ARBITRATION AND CONCILIATION ACT, 199656
with their own solution to the mediator. Only then the mediator draws up a written agreement reflecting the
solution the disputing parties consider most appropriate.
In the process of conciliation under the Arbitration and Conciliation Act, the conciliator becomes a go-between
between the disputing parties. Even if the parties wish to make any suggestion for the settlement of the
dispute, they are required to submit it to the conciliator. From the point of view of effective communication
and repairing the breakdown in a personal or professional relationship, this may not work in favour of the
disputing parties. In an ideal scenario, parties should work on mending the broken lines of communication
amongst themselves with the mediator only as a referee and freely brainstorm solutions to resolve their own
disputes. After all, only the wearer knows best where the shoe pinches.
End of Document
COMPANIES ACT, 2013
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
COMPANIES ACT, 2013
Section 442 of Companies Act, 2013 provides for mediation or conciliation of disputes under the Companies Act.
Some of the kinds of disputes under Companies Act which may be referred to mediation are as follows:
•
Oppression
•
Mismanagement
•
Transfer of shares
•
Transmission of shares on death of a shareholder
•
Rights of shareholders as recorded in Shareholders Agreements
•
Rights of Minority Shareholders
•
Deadlock relating to management of company between joint venture partners
•
Class action proceedings
•
Claims in summary proceedings for winding up
The Supreme Court of India in Booz Allen case has held that parties are allowed to resort to mediation for
any matters, except:7
•
the matters relating to proceedings in respect of inspection or investigation under Chapter XIV of the
Act; or the matters which relate to defaults or offences for which applications for compounding have
been made by one or more parties.
•
cases involving serious and specific allegations of fraud, fabrication of documents forgery,
impersonation, coercion etc.
•
cases involving prosecution for criminal and non-compoundable offences.
•
cases which involve public interest or interest of numerous persons who are not parties before the
Central Government or the Tribunal or the Appellate Tribunal as the case may be.
The matter can be referred to mediation at any time after filing the matter before the relevant National
Company Law Tribunal (NCLT) or before National Company Law Appellate Tribunal (NCLAT). The parties
can seek leave of the court for mediation. The Tribunal/Appellate Tribunal also has the power to direct
parties to attempt mediation.
The Companies (Mediation and Conciliation) Rules, 2016 provides the expanse rules for carrying out
Page 2 of 4
COMPANIES ACT, 2013
mediation, setting eligibility standards for empanelment of mediators and conciliators, laying down ethical
standards under the Companies Act, 2013.
For mediation between the parties during the pendency of any proceedings before the Central Government or
the Tribunal or the Appellate Tribunal, the Central Government shall maintain a panel of experts to be called
as the ‘Mediation and Conciliation Panel’. This power has been delegated to the Regional Director, Ministry
of Corporate Affairs, Government of India who invites applications from persons interested in getting
empanelled as mediator or conciliator with the NCLT and NCLAT in February each year.
The 2016 rules lays down the eligibility criteria for the empanelment of mediator and conciliator, to include:
•
Retired Judges of the Supreme Court of India
•
Retired Judges of the High Courts
•
Retired District & Sessions Judges
•
Retired Members or Registrar of National Tribunal constituted under any law for the time being in
force
•
Retired Indian Corporate Law Service Officers or Indian Legal Service Officers with the equivalent
pay scale of Joint Secretary to the Government of India or more
•
Advocates with at least fifteen years standing at any Bar Council
•
Professionals with at least fifteen years of continuous practice as Chartered Accountant (CA) or Cost
Accountant or Company Secretary (CS)
•
Retired Members and Presidents of State Consumer Forums; and
•
Persons who are experts in mediation/conciliation to be decided by the Central Government from
time to time.
The following persons will automatically be disqualified from appointment as mediators:
•
any person who is interested or connected with the subject-matter of dispute(s) or is related to any
one of the parties or to those who represent them; and
•
any authorised representative who has appeared or is appearing for any of the parties in the suit or in
other proceedings(s).
Any of the parties to the proceedings may apply for referring the matter pertaining to such proceedings to the
Mediation and Conciliation Panel. The Central Government or the Tribunal or the Appellate Tribunal before
which any proceeding is pending may on its own initiative also refer any matter under Companies Act to
mediation or conciliation by the Panel.
The Mediation and Conciliation Panel shall be obligated to dispose off the matter referred to it within a
period of three months from the date of such reference and forward its recommendation to the Central
Government or the Tribunal or the Appellate Tribunal.
The procedure to be followed in the mediation or conciliation proceedings may be decided by the parties.
Where the parties do not agree on any particular procedure to be followed by the mediator/conciliator, the
mediator/conciliator shall follow the following procedure:
•
He shall fix, in consultation with the parties, a time schedule, the dates and the time of each
mediation/conciliation session, where all parties have to be present;
Page 3 of 4
COMPANIES ACT, 2013
•
He shall hold the mediation/conciliation at the place decided by the Central Government, the
Tribunal or the Appellate Tribunal or the place where the parties and the mediator/conciliator jointly
agree;
•
He may conduct joint or separate meetings with the parties;
•
Each party shall, 10 days before a session, provide to the mediator/conciliator a brief memorandum
setting forth the issues, which according to it, need to be resolved, and its position in respect to those
issues and all information reasonably required for the mediator/conciliator to understand the issue;
such memorandum shall also be mutually exchanged between the parties. However, in
suitable/appropriate cases, the period of ten days may be curtailed at the discretion of the
mediator/conciliator;
•
Each party shall furnish to the mediator/conciliator such other information as may be required by
him in connection with the issues to be resolved.
The mediator/conciliator shall endeavour to facilitate voluntary settlement of the conflict between the parties.
He shall communicate what each disputing party opines about the dispute to the other disputing party. His
role is to help the disputants in identifying issues, bridge misunderstandings, clarify their priorities, explore
possible permutations of compromise and generate practical options in an effort to resolve the conflict. At all
times the mediator should emphasise that it is the disputing parties’ responsibility to take decisions which
affect them. A mediator cannot impose his own settlement terms on the parties. However, if both the parties
consent, he may impose such terms and conditions on the parties for early settlement of the dispute.
He must make the disputing parties understand at the very outset that the mediator/conciliator only assists in
communication between the parties so that they themselves can arrive at a decision to resolve the conflict(s)
and that the mediator will not and cannot impose any settlement terms on the disputants. Also, it is important
to emphasise that the mediator/conciliator cannot give any assurance that the mediation/conciliation will
definitely result in a settlement. The mediator/conciliator cannot conclude the mediation by drawing
settlement terms in a judgment-like manner.
The mediator/conciliator and the parties shall be obligated by law to keep all matters related to the
mediation/conciliation proceedings confidential. To maintain this confidentiality, there shall be no
communication between the mediator/conciliator and the Central Government or the Tribunal or the
Appellate Tribunal except in writing and copies of the same shall be given to the parties or the authorised
representative. This communication may only be with regard to the following:
•
About the failure of the party to attend the proceedings;
•
About the consent of the parties;
•
Regarding the mediator/conciliator’s assessment that the case is not suited for settlement through the
mediation/conciliation;
•
That the parties have settled the dispute(s).
What is interesting is that where there is more than one mediator/conciliator, the mediator/conciliator
nominated by one party may first concur with the party nominating him before interacting with the other
mediator/conciliator, with a view to resolve the dispute(s).
In the mediation proceedings, where the disputing parties reach an agreement on some or all of the issues, the
terms of settlement shall be put down in writing and executed by the parties like any other commercial
agreement. The mediator is required to submit this agreement between the parties with a covering letter
signed by him to the Central Government or the Tribunal or the Appellate Tribunal. Where the disputing
Page 4 of 4
COMPANIES ACT, 2013
parties are unable to arrive at an agreement within the time limit of ninety days or where, the
mediator/conciliator is of the view that no settlement is possible, he shall report the same to the Central
Government or the Tribunal or the Appellate Tribunal in writing.
The Central Government or the Tribunal or the Appellate Tribunal shall fix a date of hearing normally within
14 days from the date of receipt of the report of the mediator or conciliator. On such date of hearing, if the
Central Government or the Tribunal or the Appellate Tribunal is satisfied that the parties have settled their
dispute(s), it shall pass a decree in accordance with terms of settlement. If the settlement disposes of only
certain issues arising in the suit or proceeding, on the basis of which any decree is passed as stated in sub-rule
(a), the Central Government or the Tribunal or the Appellate Tribunal shall proceed further to decide
remaining issues.
Any party aggrieved by the recommendation of the Mediation and Conciliation Panel shall have the power to
file its objection to the Central Government or the Tribunal or the Appellate Tribunal.
7
Booz Allen & Hamilton Inc v SBI Home Finance Limited, (2011) 5 SCC 532.
End of Document
COMMERCIAL COURTS ACT, 2015 AND RULES
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
COMMERCIAL COURTS ACT, 2015 AND RULES
The Indian parliament passed the Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts (Amendment) Bill, 2018 on 10 August 2018. In a potentially significant development,
section 12A of the Amendment 2018 stipulates mandatory pre-institution mediation i.e. the plaintiff is
mandatorily required to exhaust the remedy of mediation prior to filing a suit in accordance with the
Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018, unless the suit contemplates any
urgent interim relief under the parent Commercial Courts Act, 2015.
The step has also been taken with the motive to enhance India’s performance in the World Bank’s Ease of
Doing Business Index. The change is sought to be introduced by inserting section 12A to the Act.
The Amendment 2018 inserts section 12A in the Act where a suit does not contemplate urgent interim relief,
the plaintiff has to undergo pre-institution mediation. In this regard, authorities constituted under Legal Services
Authorities Act, 1987 i.e. National Legal Services Authority (NALSA) has been notified to ensure that
mediation is undertaken in such matters. It further entails that the settlement arrived at by such mediation
shall have the status and effect of an arbitral award under section 30(4) of the Arbitration and Conciliation Act,
1996.
The Commercial Courts (Pre-institution Mediation and Settlement) Rules, 2018 govern the procedural aspects
of the mediation. The respective state legal services authority constituted under Legal Services Authorities Act,
1987 is required to overlook and ensure the implementation of the provision for mandatory mediation. The
authority is required to maintain a panel for mediators attached to itself.
The Conundrum of ‘Urgent Interim Relief’
As discussed above, the parties are required to mandatorily undergo pre-institutional mediation for
commercial dispute under the 2015 Act. If put simply, before the parties go knocking on the doors of the
judiciary (Commercial Court), they need to attempt mediation. If the proceedings are not successful, they may
approach the Commercial Court. However, the 2015 Act also provides for an exception for commercial
disputes with ‘urgent interim relief’ (which may not eventually stand true to its meaning). If an application for
the same is submitted to the Commercial Court, the requirement to pursue mediation is waived. As will be
discussed in the later parts of this book, the relief is grossly misused owing the lack of clarity and boundaries
on the principles which may assist to determine the truth behind this ‘urgency’.
Commercial Courts (Pre-institution Mediation and Settlement) Rules, 2018
The 2018 rules lay down in detail the procedure to be followed for initiation of mediation, drawing of
settlement agreement, fee for the mediators, ethics to be followed by the mediator. On one of the parties
Page 2 of 2
COMMERCIAL COURTS ACT, 2015 AND RULES
approaching the Authority under 2018 Rules, notice is served to the other party. The entire process between
first serving of notice to first session is required to be finished within 10 days.8
When is the mediation considered to be a non-starter?
•
When no acknowledgment is received on final serving of notice to the other party
•
When the other party request for an alternative day and fails to turn up for the session
The parties may choose to appear in person, through a representative or a counsel.
Conduct of the Mediator
The 2015 rules lay the down the procedure in great detail. It begins with the Mediator explaining the process
of the mediation to the parties. The Rules pay specific attention to the convenience of the parties while
deciding the dates for consultation. The mediator is at the liberty to conduct meeting with the parties together
or separately or a mixture of both, where parties may submit their settlement proposals to the Mediator.9
The mediator is required to only disclose those facts to the other party with the explicit permission of the
party while consulting separately.
Settlement Agreement
The parties are required to complete the entire process of mediation in maximum three months, which is
extendable to an additional two months on the mutual consent of the parties. The time spent during
mediation is not considered while calculating the limitation period.
It the parties reach a settlement, the same is reduced to writing and is signed by the parties along with the
mediator. This settlement agreement will have the same enforcement and effect as an arbitration award under
Section 30 of the Arbitration and Conciliation Act, 1996.
In case a settlement is not reached or where in the opinion of the mediator there is no scope for one, a report
in prescribed format will be submitted to the relevant legal services authority.10
8
Juhi Gupta, Mandatory Pre-Institution Commercial Mediation In India: Premature Step In The Right Direction?, available at
http://mediationblog.kluwerarbitration.com/2018/09/01/mandatory-pre-institution-commercial-mediation-india-premature-step-right-direction/
(last
accessed in April 2021).
9
Mohammad
Kamran
and
Ashish
Kabra,
Amendments
to
the
Commercial
Courts
Act,
available
http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/article/amendments-to-the-commercial-courtsact.html?no_cache=1&cHash=e86a1919f9cad03e864c9675ee60325f (last accessed in April 2021).
10
Vishal Hablani and Pankaj Agarwal, Mandatory Pre-Institution Mediation in Commercial Matters: Is India Ready? available at
https://indiacorplaw.in/2018/06/mandatory-pre-institution-mediation-commercial-matters-india-ready.html (last accessed in April 2021).
End of Document
at
CONSUMER PROTECTION ACT, 2019
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
CONSUMER PROTECTION ACT, 2019
Chapter IV sections 37-38 of the legislation provide for reference of consumer disputes to mediation. The
District Commission, State Commission and National Commission as envisaged under the 2019 Act are
required to maintain a mediation cell attached to it. These cells will maintain a list of empanelled mediators,
list of cases handled by it, record of proceedings etc. The Consumer Protection (Mediation) Rules, 2020 came
into force from 24 July 2020.
Reference to Mediation
The parties may be referred to mediation, if it appears to the District Commission that there exists an element
of settlement with certain exceptions. If District Commission opines so, the parties may be directed to give
their acceptance within 5 days. When such communication is received, within the next 5 days the commission
allocates a mediator from it attached Mediation Cell.
Empanelment of Mediators
The Commissions shall prepare a panel of mediators, on the recommendation of a selection committee of the
President and a member of commission. The empanelment of such mediators shall be maximum for five
years, with scope for re-empanelment.
Eligibility:
(i) retired Judges of Supreme Court of India;
(ii) retired Judges of the High Courts;
(iii) retired Members of a Consumer Commission;
(iv) retired District and Session Judges, retired Additional District and Session Judges or other retired Members of the
Higher Judicial Services of a State;
(v) retired Judicial officers, having experience of not less than ten years;
(vi) an advocate with a minimum experience of ten years at Bar;
(vii) the mediators empanelled with the Mediation Cell of the Supreme Court of India, High Court or a District Court;
(viii)a person having experience of at least five years in mediation or conciliation;
(ix) experts or other professionals with at least fifteen years’ experience or retired senior bureaucrats or retired executives.
The mediator is required to undergo mandatory training by the concerned Mediation Cell.
Conduct of the Mediator
Page 2 of 2
CONSUMER PROTECTION ACT, 2019
The mediator shall be required to disclose any personal, professional or financial interests in the dispute and
reasons which may cause justifiable doubts.
The mediator shall attempt to facilitate a voluntary resolution of the disputes between the parties, assist them
in removing the misunderstandings. The mediator will explain the terms of the agreement, to the parties,
before obtaining their respective signatures on it. The Mediator is required to maintain confidentiality
regarding the process of mediation and hence not video or audio recording of proceedings shall be allowed.
Settlement Agreement
If the parties reach an agreement with respect to some or all aspects of the issues, the same shall be reduced
to writing and signed by the parties or their representatives. The agreement along with a settlement report
shall be forwarded to the concerned Commission. Within seven days of receipt of this report, the concerned
Commission shall pass an order for the consumer dispute in whole or in part, as the case may be.
When the parties are unable to reach a settlement, a report needs to be prepared and forwarded to the
concerned Commission as well. If the dispute is not settled or is settled only in part, the Commission shall
continue to hear the matter.
End of Document
REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016
The legislation provides for regulation of the real estate sector in India requiring compulsory registration of
under construction property, statutory approval for extension of construction timelines and redressal for real
estate consumers. Section 32(g) of Real Estate (Regulation and Development) Act, 2016 (popularly known as
RERA) allows the authority constituted under the legislation to recommend to the State Government to
constitute a conciliation committee. If the State Government constitutes the conciliation committee, the real
estate developers and aggrieved parties shall be first required to attempt to resolve their dispute through
conciliation. Only if the conciliation fails or terminates without settlement, the parties may approach the State
Real Estate Regulatory Authority for redressal. The power to setup and provide rules for conciliation is with
the state government and varies from state to state.
End of Document
INSOLVENCY AND BANKRUPTCY CODE, 2016
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
INSOLVENCY AND BANKRUPTCY CODE, 2016
There is no express provision for mediation under the Code. However, rule 8 of the Insolvency and
Bankruptcy (Application to Adjudicating Authority) Rules, 2016 allows withdrawal of insolvency application
before its admission by the National Company Law Tribunal. Post admission of the application it is argued
that an insolvency proceeding assumes the character of a representative suit and hence, settlements with
creditors should not be allowed unless the settlement is with all the creditors. Practically, this becomes
difficult because this includes not just bank loans and vendors but also debenture, bond and deposit holders,
tax authorities, labour and utilities like electricity, water etc. Hence, section 12A of the Code provides that the
adjudicating authority may allow the withdrawal of application admitted under section 7, 9 or 10 of the Code,
on an application made by the applicant with the approval of 90% voting share of the committee of creditors.
This is allowed before the publication of notice inviting expressions of interest and commencement of bids.
The aim of the statute is to promote corporate recovery and bounce back. Mediation and facilitated
negotiation can act as a soft policy tool to facilitate this aim. They are also useful in the pre-insolvency phase
of stressed assets turnaround. Although many insolvency matters have been mediated and remain unreported,
the first reported case of mediation in insolvency proceedings is discussed below in the chapter.
End of Document
RBI ONLINE DISPUTE RESOLUTION (ODR) SYSTEM FOR DIGITAL
PAYMENTS
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
RBI ONLINE DISPUTE RESOLUTION (ODR) SYSTEM FOR DIGITAL
PAYMENTS
The Reserve Bank of India introduced a circular on Online Dispute Resolution (ODR) System for Digital
Payment in August 2020. It mandates for maintenance of an ODR platform for authorised Payment Systems
Operators (PSOs), including banks, non-banks and their participating members [Payment System Participants
(PSPs)]. Disputes and grievances related to failed transactions in their respective payment systems shall be
addressed by these platforms. The entities are required to comply with this by 1 January 2021. The PSOs shall
provide access to such a system to its participating members, i.e., Payment System Participants (PSPs). Any
entity setting up a payment system in India thereafter or participating therein, shall make available the ODR
system at the commencement of its operations.
End of Document
MEDIATION IN FAMILY DISPUTES
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
MEDIATION IN FAMILY DISPUTES
The family laws of matrimony and succession in India are mostly governed by the personal religious tenets of
the people. Mediation and conciliation in India is resorted to mostly to settle matrimonial disputes in India.
Under Islamic Law an express provision to this effect is given in the Holy Quran (Chapter IV) as follows:
And if you fear breach between twain (husband and wife) appoint a conciliator from his folk and a conciliator from her folk. If they desire amendment Allah will
make them of one mind. Lo! Allah is ever knower, Aware.
This verse is perhaps the oldest codified tenet providing for appointment of a panel of mediators or
conciliators for resolving a dispute. Again the Holy Quran stresses on neutrality of the dispute resolution
mechanism by providing that the folks of each disputing party must appoint a mediator to the panel. The
religious text gives us words of wisdom when it explains that a dispute can be resolved only when a mediator
is able to establish a mid-path, a workable solution for the disputing parties and make them of ‘one mind’.
What was so clearly codified in a religious text of the country has definitely been lost in translation while
making the laws of India.
Under the classical Hindu Law, the concept of conciliation has no place because the philosophy of Hindu
marriage is that once a marriage means always a marriage. The concept of divorce or judicial separation was
alien to the ancient Hindu Marriage laws. However, with the enactment of Hindu Marriage Act, 1955, the
concept of divorce and judicial separation have become possible in a Hindu Marriage. Both the husband and
wife have been given the right to petition to court for divorce on any of the following grounds:
•
Adultery
•
Cruelty
•
Deserting the spouse for not less than two years
•
Converting to another religion
•
Being of unsound mind
A similar provision to petition to court for judicial separation is also available to the parties. Furthermore, if
the court has granted judicial settlement, the order for judicial settlement can also be nullified by the court on
the application by petition of either party and on being satisfied of the grounds and statements made by a
party to nullify judicial separation if it considers it just and reasonable to do so. Therefore, in a sense, court
may perform the role of conciliator if it is requested to do so.
Page 2 of 2
MEDIATION IN FAMILY DISPUTES
The matters of divorce submitted in the family courts of India are being referred to mediation under section 89
of CPC as discussed above. Various Government aided mediation centres have come up for this purpose in
India.
In practice, it is seen that matters which are brought into mediation before initiating any other court
proceedings have a very high chance of amicable settlement. However, many matters referred to mediation
after initiation of court proceedings are also successfully resolved by mediation.
End of Document
OTHER IMPORTANT JUDICIAL PRECEDENTS ON MEDIATION IN INDIA
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER V LAW
GOVERNING MEDIATION IN INDIA
CHAPTER V LAW GOVERNING MEDIATION IN INDIA
OTHER IMPORTANT JUDICIAL PRECEDENTS ON MEDIATION IN INDIA
1. Moti Ram v Ashok Kumar11- On confidentiality of mediation proceedings
Facts: A dispute was referred to the Supreme Court Mediation Centre. The mediation was unsuccessful. The
mediator sent a report to the Hon’ble Court informing of the same and also summarised all the offers and
counter offers made during the mediation sessions and the reason for the deadlock between the parties.
Judgment: The Supreme Court of India has held that the report sent by the mediator to the court informing the
failure of the mediation should not mention the proposals made by the parties, but should only state that the
mediation was unsuccessful. Mediation proceedings are totally confidential proceedings. This is unlike
proceedings in court which are conducted openly in the public gaze. If the mediation succeeds, then the
mediator should send the agreement signed by both the parties to the Court without mentioning what
transpired during the mediation proceedings. If the mediation is unsuccessful, then the mediator should only
write one sentence in his report and send it to the Court stating that the ‘Mediation has been unsuccessful’.
Beyond that, the mediator should not write anything which was discussed, proposed or done during the
mediation proceedings. This is because in mediation, very often, offers, counter offers and proposals are
made by the parties but until and unless the parties reach to an agreement signed by them, it will not amount
to any concluded contract. If the happenings in the mediation proceedings are disclosed, it will destroy the
confidentiality of the mediation process.
2. K. Srinivas Rao v D.A. Deepa12- All efforts ought to be made to refer matrimonial disputes to mediation
at pre-litigation or at the first instance where they appear before a Court
Facts: A couple got married as per the Hindu rites and customs. On the very next day, dispute arose between
the members of the two families and the husband and wife were separated without consummation of
marriage. The wife filed a criminal complaint through the Women Protection Cell alleging that the husband is
harassing her for more dowry. Both husband and wife filed various complaints and counter-complaints
against each other. Both parties got dragged to the court and the relationship got extremely strained. Then the
wife approached the Family Court and requested the court to pass an order for the couple to stay together
again (in legal terminology it is called ‘restitution of conjugal rights’). The husband informed the counselor at
the court that by filing repeated false complaints against him and his family the wife had caused extreme
cruelty to the husband and his family and therefore it was not possible to take her back. The family court
ruled in the husband’s favour. The wife went to the High Court. The High Court ruled in the wife’s favour,
the husband went to the Supreme Court (which is this judgment).
Judgment: The Supreme Court has made detailed observations on how filing multiple cases in matrimonial
Page 2 of 5
OTHER IMPORTANT JUDICIAL PRECEDENTS ON MEDIATION IN INDIA
disputes leads to so much breakdown in relationships that it is difficult to reconcile the husband and wife so
that they can live with each other. The Apex Court observed that by her conduct, the wife had caused mental
cruelty to the husband. However, it is not possible to say that fault lies only with the wife. In matrimonial
disputes there is hardly any case where one spouse is entirely at fault. But, then, before the dispute assumes
alarming proportions, someone must make efforts to make parties see reason. In this case, if at the earliest
stage, before the wife filed the complaint making indecent allegations against her mother-in-law, she were to
be counseled by an independent and sensible elder or if the parties were sent to a mediation centre or if they
had access to a pre-litigation clinic, perhaps the bitterness would not have escalated. Things would not have
come to such a pass if, at the earliest, somebody had mediated between the two. It is possible that the wife
was desperate to save the marriage. Perhaps, in desperation, she lost balance and went on filing complaints. It
is possible that she was misguided. Perhaps, the husband should have forgiven her indiscretion in filing
complaints in the larger interest of matrimony. But, the way the wife approached the problem was wrong. It
portrayed a vindictive mind. She caused extreme mental cruelty to the husband. Now the marriage was
beyond repair.
Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted. Mediation
as a method of alternative dispute resolution has got legal recognition now. The Hon’ble Court observed that
at the earliest stage i.e. when the dispute is taken up by the family court or by the court of first instance for
hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody
of child, maintenance, etc. are pre-eminently fit for mediation. The law requires Family Court to make efforts
to settle the matrimonial disputes. In these efforts, family courts are assisted by Counsellors. Even if the
counsellors fail in their efforts, the family courts should direct the parties to mediation centres, where trained
mediators are appointed to mediate between the parties. Being trained in the skill of mediation, the mediators
at mediation centres produce good results.
The idea of pre-litigation mediation is also catching up in India. In pre-litigation mediation, the parties appoint
a mediator to resolve the dispute before filing any complaints or court cases. If all mediation centres set up
pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for prelitigation settlement, many families will be saved of hardship if, at least, some of them are settled.
The Supreme Court has directed that the family courts shall make all efforts to settle the matrimonial disputes
through mediation. Even if the counsellors submit a failure report, the family courts shall, with the consent of
the parties, refer the matter to the mediation centre. In such a case, however, the family courts shall set a
reasonable time limit for mediation centres to complete the process of mediation because otherwise the
resolution of the disputes by the Family Court may get delayed. In a given case, if there is a good chance of
settlement, the family court, in its discretion, can always extend the time limit.
The Supreme Court has also directed all mediation centres to set up pre-litigation desks/clinics, give them
wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage.
3. M.R. Krishna Murthi v The New India Assurance Co. Ltd.13
A two-judge bench of the Supreme Court asked the government to examine the feasibility of setting up a
Motor Accident Mediation Authority in every district so that road accident claims can be settled in a speedy
and amicable manner. What is most notable about this ruling, however, is that the Supreme Court held that
the need for more mediation efforts in the country is generally felt, and is not limited to motor vehicle claims
alone. The bench noted that:
the way [the] mediation movement is catching up in this country, there is a dire need to enact [an] Indian Mediation Act as well.” Acting
upon this note, it held that “we impress upon the government to also consider the feasibility of enacting [an] Indian Mediation Act to take
care of various aspects of mediation in general.
Page 3 of 5
OTHER IMPORTANT JUDICIAL PRECEDENTS ON MEDIATION IN INDIA
Some interesting policy arguments were made before the Hon’ble Court owing to which the direction to
consider a mediation authority was made to the Government of India. It was pointed out that out of total
average road accidents with 1,40,000 deaths and 5,00,000 injuries annually, less than 10% claims reach the
Motor Accident Claims Tribunals annually leaving 90% claimants without access to justice. A roadmap of
where and how mediation should be introduced was also proposed which is replicated and makes interesting
policy consideration on how to create flowcharts to study efficacy of introducing mediation as a process tool.
4. Parvinder Singh v Intec Capital Ltd.14
This is the first reported case of mediation under Insolvency and Bankruptcy Code, 2016. For relevant provisions
of the Code, please refer to the discussion on statutes above in this chapter.
In this case, the financial creditor dropped the insolvency proceedings against a corporate debtor upon the
promoter of the corporate debtor agreeing to substitute himself as a party in the matter and clear the dues of
the corporate debtor negotiated and settled through mediation. The Interim Resolution Professional
facilitated the mediation by holding the constitution of Committee of Creditors till the mediation proceedings
ended. The National Company Law Appellate Tribunal (NCLAT) used its extraordinary powers to hold the
Page 4 of 5
OTHER IMPORTANT JUDICIAL PRECEDENTS ON MEDIATION IN INDIA
terms of settlement enforceable as an order of the Hon’ble Appellate Tribunal allowing appeal and other relief
on breach. To maintain confidentiality of the mediation process, the mediator’s report and the terms of
settlement were ordered to be kept in a sealed envelope.
5. Rama Aggarwal v PIO, Delhi State Legal Service Authority15
Party cannot seek information pertaining to mediation proceedings under the Right to Information Act, 2005
Facts: The appellant sought to have details of the proceedings about the case of Rama Agarwal before Delhi
State Legal Services Authority (erstwhile Delhi Legal Aid and Advice Board) through a RTI application. The
Central Public Information Officer (CPIO) replied stating that information sought is confidential. First
appellate authority upheld CPIO reply. Appellant approached the Central Information Commission. She was
referred to counseling under Delhi State Legal Services Authority (DSLSA). She is seeking copy of details of
the proceedings of the case under DSLSA. Appellant claims that these details are required for her domestic
violence and divorce case pending at Patiala House Court.
Judgement: The Central Information Commission (CIC) stated that proceedings during mediation are protected
under the exceptions in the Right to Information Act, 2005 and are not subject to be disclosed as no public
interest is served on disclosure and there exists larger public interest protecting the information.
The CIC clarified that the RTI Act, 2005 will override the Arbitration & Conciliation Act, 1996 and information
has to be disclosed subject to RTI Act. However, upon closer analysis of section 8 of the RTI Act, 2005 – it
enlists special instances when the authorities are exempted from disclosing information sought for. Despite
these exemptions, we need to note that in the interest of conciliation in general as an alternative dispute
proceeding there is a need to protect the confidentiality. The moment the proceedings of the mediation are
allowed to be disclosed in the form of certified copies under RTI Act, or evidence in other proceedings or
publicised openly, the parties will not prefer mediation or conciliation, which will increase pendency, stress
and burden on the courts besides delaying the marital dispute resolutions affecting several families.
Thus, the public interest in disclosure of the information, if any, is not higher than that in protection of
mediation proceedings as per section 8(2). Comparatively there is a higher public interest in protecting the
confidentiality and privacy of the proceedings of mediation and there is no public interest in disclosure.
Hence under section 8(2) information about mediation proceedings cannot be given. As there is no larger
public interest, the mediation information attracts provisions of exemptions under section 8(1)(e) and (j).
Hence cannot be disclosed.
In the recent case of The High Court of Judicature at Madras Rep. by its Registrar General v M.C Subramaniam16,
parties settled their dispute in a private out-of-court settlement in parallel to court proceedings. They sought
for a refund of court fees and were denied on the grounds that refund of court fees is available under section
89 of Code of Civil Procedure, 1908 only when parties avail one of the options of alternative dispute resolution
under the provision and that this was restricted to court annexed mediation at a government run mediation
centre. The Hon’ble High Court of Madras held that such a restrictive interpretation cannot be provided to
section 89 of Code of Civil Procedure, 1908 and that parties are free to avail mediation or other out of court dispute
resolution services so long as they finally resolve their dispute and withdraw the court proceedings to avail
refund of court fees. After several appeals, this order was challenged in the Supreme Court by the Registrar.
The Apex Court said that there should not be a strict interpretation of the section 89 of the Code of Civil Procedure
and section 69A of The Tamil Nadu Court Fees and Suit Valuation Act, 1955. This precedent now clarifies
that parties can opt for institutional mediation services by private service providers, settle their disputes and
apply for refund of court fees as an added incentive. It is a good step in the liberalisation of mediation market
in India.
Page 5 of 5
OTHER IMPORTANT JUDICIAL PRECEDENTS ON MEDIATION IN INDIA
11
Moti Ram v Ashok Kumar, (2011) 1 SCC 466.
12
K. Srinivas Rao v D.A. Deepa, (2013) 5 SCC 226.
13
M.R. Krishna Murthi v The New India Assurance Co. Ltd, 2019 SCC OnLine SC 315.
14
Parvinder Singh v Intec Capital Ltd, 2019 SCC OnLine NCLAT 1365
15
Rama Aggarwal v PIO, Delhi State Legal Service Authority,CIC/SA/A/2015/900305 (Central Information Commission)
16
The High Court of Judicature at Madras Rep. by its Registrar General v M.C Subramaniam, Special Leave Petition (Civil) Nos. 3063-3064 of 2021
(Mad HC).
End of Document
CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER VI
STATUS OF MEDIATION ACROSS THE GLOBE
CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
Mediation is a widely used dispute resolution mechanism across the world. While India is courting global
business and the world now truly fits in the palm of our hands, knowledge of how things are done outside
India always comes handy. If you do not deal with anybody outside India, knowing about ways and laws of
other countries can always broaden your horizons and give you new, innovative ideas to implement in your
business and personal life.
End of Document
UN CONVENTION ON INTERNATIONAL SETTLEMENT AGREEMENTS
RESULTING FROM MEDIATION (SINGAPORE CONVENTION)
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER VI
STATUS OF MEDIATION ACROSS THE GLOBE
CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
UN CONVENTION ON INTERNATIONAL SETTLEMENT AGREEMENTS
RESULTING FROM MEDIATION (SINGAPORE CONVENTION)
The United Nations Convention on International Settlement Agreements Resulting from Mediation, famously
known as the Singapore Convention on Mediation was adopted on 20 December 2018 and entered into force
on 12 September 2020. India was one of the first countries which signed the convention which as of date has
54 signatories and six parties. The purpose of the Singapore Convention is to provide a general framework to
streamline the enforcement of settlement agreements arising out of mediation in cross border business
disputes.
The Singapore Convention is applicable where parties to a settlement agreement:
(a) have their place of business in two different states; or
(b) have their place of business different from the state where substantial part of the obligations exists; or
(c) have their place of business different from state which is most closely connected to the obligation.
The Singapore Convention does not include settlement agreements arising out of mediation related to parties
for personal, family or household purposes, inheritance or employment law. It also does not apply to
settlement agreements approved within the course of proceedings of a court, court-annexed mediation and
those enforceable as arbitral awards. The Convention paves the way for reciprocity of ease of enforcement of
international mediation settlement agreements between countries who have ratified the convention. The
Government of India is now required to bring necessary changes in the domestic laws to enforce the
convention in India.
The convention is an important development in the usage of the term ‘mediation’ instead of conciliation. Till
this convention was brought in, United Nations Commission on International Trade Law (UNCITRAL) only
used the word ‘conciliation’ in all its discussions on alternative dispute resolution. Even the Working Group
that has brought this convention is called the Working Group II: Arbitration and Conciliation / Dispute
Settlement. It was owing to the UNCITRAL Model Law that only acknowledges conciliation that the Indian
legislation provides for conciliation but not mediation. The convention now defines mediation as s a process,
irrespective of the expression used or the basis upon which the process is carried out, whereby parties attempt
to reach an amicable settlement of their dispute with the assistance of a third person or persons (“the
mediator”) lacking the authority to impose a solution upon the parties to the dispute.1
The convention allows domestic courts to seek evidence proving that the agreement arose out of mediation in
Page 2 of 2
UN CONVENTION ON INTERNATIONAL SETTLEMENT AGREEMENTS RESULTING FROM MEDIATION
(SINGAPORE CONVENTION)
the form of (a) Mediator’s signature on the settlement agreement; (b) Document signed by mediator that the
mediation was carried out; (c) In case of institutional mediation, an attested document by the institution that
administered the mediation; or (d) any other evidence acceptable to the enforcing authority.2 The convention
promotes execution of mediation settlement through electronic means so long as the method allows for
identification of parties and shows intention of parties to settle through mediation.3 It also requires the
electronic communication to be reliable and appropriate for the purpose of execution of a mediation
settlement agreement. These requirements shall promote use of appropriate online dispute resolution software
for executing mediation settlements and also promote software that provide confidentiality and identification
of parties. The convention empowers the domestic court or authority to refuse relief on the grounds that the
agreement was void, not binding or final, has been subsequently modified, is not clear or comprehensible or
has been performed. The relief may also be denied on the grounds that one or both of the parties where
under incapacity to enter into contract or if granting relief would be contrary to terms of settlement
agreement.
The convention also allows for grounds of denying relief in circumstances where (a) there was a serious
breach by the mediator of standards applicable to the mediator or the mediation without which breach that
party would not have entered into the settlement agreement; or (b) there was a failure by the mediator to
disclose to the parties circumstances that raise justifiable doubts as to the mediator’s impartiality or
independence and such failure to disclose had a material impact or undue influence on a party without which
failure that party would not have entered into the settlement agreement.4 This raises slight cause for concern
in nascent jurisdictions. It is important that the domestic laws are drafted in a manner that clarify what shall
be the standards of mediation or mediator including allowing waiver of conflict of interest the breach of
which shall be grounds to deny relief. It is also important that domestic laws do not allow for leading evidence
and affidavits that disclose discussions during mediation or any subject matter that was deemed confidential as
part of mediation in the garb of seeking relief.
1
Article 2(3) of Singapore Convention on International Settlement Agreements Resulting from Mediation.
2
Article 4(1)(b) of Singapore Convention on International Settlement Agreements Resulting from Mediation.
3
Article 4(2) of Singapore Convention on International Settlement Agreements Resulting from Mediation.
4
Article 5(1)(e) and (f) of Singapore Convention on International Settlement Agreements Resulting from Mediation.
End of Document
SINGAPORE
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER VI
STATUS OF MEDIATION ACROSS THE GLOBE
CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
SINGAPORE
Mediation is not a new concept to Singapore. Many Asian cultures practiced mediation in one form or
another in their communities, often by using respected elders as mediators. However, urbanisation and
industrialisation and a focus on legal rights has led to an emphasis on litigation and dwindling of mediation
and other informal dispute resolution mechanisms. Mediation and other alternative dispute resolution
practices were reintroduced into Singapore in the 1990s as the 1970s Western mediation movement spilled
over to Singapore. It is these practices that determine Singapore’s mediation culture today. Currently,
mediation is not only used for private disputes but forms an integral part of the Singapore legal system. It is
widely used as a mechanism of dispute resolution in courts, government departments, businesses and other
specific industries.
The Approach
Singapore mostly has a non-interventionist approach towards mediation. Party autonomy and non
intervention by persons other than the main disputing parties forms the basis for this approach. The disputing
parties are deemed to know more than their mediator about the situation and are presumed to be more than
capable of making their own decisions. The parties are therefore empowered to take responsibility to shape
the outcome of the dispute.
Formalities in the manner of standard mediation procedure, model standards of practice, mediator’s code of
conduct and documentation such as mediation agreements and case summaries are accepted practices of the
mediation process. Mediators in Singapore are generally required to be trained, certified, qualified and/or
accredited to undertake mediation.
The Law
Singapore is one of the few countries with a standalone law that governs mediations in Singapore i.e.
Singapore Mediation Act, 2017. The law applies to all mediations except family mediations as the provision
has not been notified. Singapore Mediation Act, 2017 provides for practice of mediation only by certified
mediators. It applies to all mediations conducted in Singapore or where the underlying agreement to the
mediation is governed by laws of Singapore. It also allows for foreign practitioners to practice mediation and
represent clients in Singapore. The statute promotes institutional mediation i.e. mediation through mediation
centres instead of private individual practitioners by providing for registration of mediation service providers
and provision for specifying quality standards and specifications. It provides equivalent enforcement to
mediation settlement agreements as court judgments. It also allows third party funding of mediation
proceedings. It further promotes mediation by expressly empowering courts to grant stay in matters where
mediation proceedings are ongoing. It provides legislative confidentiality to all mediation communication
which is very widely worded including anything said or done; any document prepared; or any information
provided.
Page 2 of 5
SINGAPORE
Singapore is one of the few jurisdictions which has also enacted domestic legislation adopting the UNSingapore Convention on Mediation Settlements called Singapore Convention on Mediation Act 2020. It has
come into force on 12 September 2020.
If a dispute resolution clause in Singapore provides for mediation before arbitration, parties’ obligation to
mediate was viewed as a pre-condition to a valid arbitration in the case of International Research Corp PLC v
Lufthansa Systems Asia Pacific Pte Ltd.5
Brand Mediation Singapore
The authors allude to Singapore every time someone asks us: (a) How can we build our mediation practice; or
(b) What can we do to make India a true international mediation hub?
Singapore is the grand example of how to promote ones’ brand as a jurisdiction for mediation services. Apart
from having clear, fast moving and updated laws governing mediation proceedings, grading and accreditation
of mediators and service providers, Singapore has also adopted a soft policy approach. For example,
Singapore offered its jurisdiction for the signing of the United Nations Convention on International
Settlement Agreements Resulting from Mediation and the convention is now more popularly known as
Singapore Mediation Convention making Singapore synonymous with international commercial mediation.
Similarly, Singapore offered its jurisdiction for hosting the meeting between the State heads of United States
of America and North Korea for peace talks as a jurisdiction promoting mediation as a means of dispute
resolution.
The Setup
The mediation movement in Singapore is largely institutionalised.
There are two main categories of mediation practice in Singapore-court based mediation and private
mediation. Court based mediation is mediation that takes place in the courts after parties have commenced
litigation proceedings. This mechanism is similar to the court based mechanism for mediation in India as
discussed in Chapter V of this book. Court based mediation is mainly carried out by the Subordinate Courts
and is coordinated by the Primary Dispute Resolution Centre (PDRC). A third prong of mediation practice in
Singapore takes place in government agencies and industry based bodies such as the Community Mediation
Centres, Tribunal for the Maintenance of Parents and the Consumers’ Association of Singapore.
Court Annexed Mediation: In Singapore the majority of court-connected mediations are court based, in that they
take place in the Subordinate Courts and are part of the Primary Dispute Resolution Centre. However, the
courts may refer cases to external mediation centres like SMC and the Community Mediation Centres, in
appropriate cases. In such a situation, the court, on its own initiative, suggests or recommends that the parties
proceed to mediation or encourages the parties to consider mediation.
The court may also refer cases to mediation with the consent of parties. In Singapore, the mediations
conducted in the Family Court are examples of this category of court-connected mediation. The Women’s
Charter imposes a duty to consider the possibility of reconciliation for parties to divorce or judicial separation
proceedings. Under the Community Mediation Centres Act, a magistrate, upon receiving a complaint, may
refer the complaint to a Community Mediation Centre if he is of the opinion that the matter may be more
appropriately resolved by mediation and if the parties are agreeable to such a referral.
Court-based mediation is practiced in the Subordinate Courts in Singapore. In fact, a ‘Singapore Courts
Mediation Model’ has been developed. The model was created with the diverse ethnic and cultural
backgrounds of Singaporeans, and present day social conditions, in mind. The model involves a Settlement
Page 3 of 5
SINGAPORE
Conference presided over by a Settlement Judge. The Settlement Judge plays a pro-active role in guiding the
parties and offering advice and suggestions on possible solutions. The directive and evaluative approach was
adopted as it is believed that Singaporeans are less vocal in a formal setting. Given the foregoing, a greater
degree of intervention is required in order to facilitate negotiations.
Mediation in tribunals, government departments and agencies and other professional and trade bodies: The Insolvency and
Public Trustee’s Office maintains a Bankruptcy Mediation Unit where post-bankruptcy mediation is provided
to resolve differences concerning the nature and quantum of debt between bankrupts and their creditors. The
Community Mediation Centres assist in the resolution of neighbour and community disputes. The Ministry of
Manpower provides conciliation services to employer employee disputes. Mediation is also an integral part of
the process at the Tribunal for Maintenance of Parents.
Several professional associations and trade and industry bodies have set up their own mediation services.
These include the Singapore Institute of Surveyors and Valuers, the Singapore Institute of Architects, the
Consumers’ Association of Singapore, the Institute of Estate Agents, the National Association of Travel
Agents Singapore, the Renovation and Decoration Advisory Committee and the Real Estate Developers’
Association of Singapore. These organisations usually maintain their own panel of mediators and some
institutional tie ups with private mediation centres for the promotion of the proper use of mediation.
Private Mediation: Singapore is considered one of the most favourable destinations for arbitration globally.
Since the 1990s, mediation practice in Singapore has also grown. With the support of judiciary and
government, mediation practice has become very prevalent in Singapore. Along with community based and
court annexed mediation, private mediation practice in Singapore is very developed. The key players in this
segment and their approach towards dispute resolution are discussed below.
The institutions maintain their own panel of trained and experienced mediators comprised of distinguished
members of different professions and fields. For a person to approach these institutions for dispute
resolution there is no requirement that the dispute should have any link to Singapore or its laws. Any person
from anywhere in the world can approach an institution for dispute resolution.
Singapore Mediation Centre (SMC)
SMC is the flagship mediation centre of Singapore. It has been functioning since 1997. SMC is a non-profit
organisation guaranteed by the Singapore Academy of Law (a body created by statute). It is linked
institutionally with many professional and trade associations and receives the support of the Supreme Court
of Singapore, the Subordinate Courts of Singapore and the Singapore Academy of Law. All mediations are
held at Singapore Mediation Centre which is located in the Supreme Court of Singapore.
The types of cases mediated at SMC include (but are not limited to) banking disputes, construction disputes,
contractual disputes, corporate disputes, contested divorces and divorce ancillary matters, employment
disputes, family disputes, information technology disputes, insurance disputes, negligence claims, partnership
disputes, personal injury claims, shipping disputes and tenancy disputes.
Majority of the disputes mediated at SMC are cases pending before and referred by the Supreme Court of
Singapore for mediation with the consent of the parties. Other sources of referral include the Subordinate
Courts, lawyers and professional bodies with whom SMC has put in place a dispute management scheme.
The process required to be followed for mediation at SMC is as follows:
•
The mediation process at the SMC may be initiated in two ways; either the case may be referred to
SMC by the courts or one or more of the parties may contact SMC directly with a request for
mediation.
Page 4 of 5
SINGAPORE
•
Where only one of the parties makes the initial request, the Centre will contact all the other parties to
persuade them to attempt mediation. When all the parties agree to mediate their dispute, the SMC
arranges for the Mediation Agreement to be signed, designates a date, time and place for mediation,
appoints a mediator and attends to all other administrative details.
•
The disputing parties will have to sign an ‘Agreement to Mediate’ with SMC. The draft agreement is
provided by SMC. The Agreement to Mediate requires the parties to abide by the SMC’s mediation
procedure and to give effect to the terms of any settlement reached.
•
As per the Agreement to Mediate, the parties are bound not to undertake or initiate any other legal
proceedings besides mediation when the mediation is on going.
•
On the day of the mediation, the mediator will lead and guide the parties through a problem-solving
process. The lawyers of the parties will attend to play the important role of assisting the mediator and
advising the parties throughout the settlement process. When a settlement is reached, the terms or
main points of the settlement will be reduced to writing and signed by or on behalf of the parties.
Singapore International Mediation Centre (SIMC) and Singapore International Arbitration Centre (SIAC)
The Singapore International Mediation Centre (SIMC) was officially launched on 5 November 2014. SIMC
focuses mainly on mediation of international commercial disputes. SIMC aims to provide best-in-class
mediation services and products targeted at the needs of parties in cross-border commercial disputes,
particularly those based in Asia. SIMC aims to cater to resolution of international commercial disputes
whether or not the dispute has any connection at all with Singapore. SIMC’s Panel of Mediators comprising
of (at the time of writing) over 60 experienced mediators from around the world.
SIMC has specific rules which govern their mediation proceedings.6 The process of mediation under SIMC
can be briefly summarised as follows:
•
Any party or parties wishing to commence mediation with SIMC shall submit a written request for
mediation.
•
A copy of the Request should be sent to all other parties to the mediation.
•
If the Request is made pursuant to an agreement which contains provision for mediation in the event
of dispute, evidence of such an agreement shall be attached to the Request.
•
If the Request is not made pursuant to an agreement to mediate, SIMC will promptly contact the
parties regarding the proposal for mediation and may assist the parties in considering the proposal.
•
Where all the parties agree to refer their dispute for mediation under the Rules, the mediation shall be
deemed to commence on the date on which SIMC sends written confirmation to the parties that an
agreement to mediate has been reached.
•
The parties may jointly nominate a mediator to conduct the mediation for confirmation by SIMC and
may do so from SIMC’s Panel of Mediators published online.
•
Where the parties are unable to agree on a mediator to be nominated within 10 days from the date of
commencement of the mediation, SIMC shall appoint a mediator.
•
SIMC will, in consultation with the parties, determine the location of the mediation and may engage
in the following in order to facilitate the achievement of full settlement at mediation:
○
Assisting parties with entering into a mediation agreement;
○
Arranging a suitable venue and date for mediation;
○
Organising the exchange of any pertinent information and documents;
Page 5 of 5
SINGAPORE
○
Providing administrative and logistical support; and
○
Providing case management services.
•
At least 10 days, or such other time as the mediator may specify, before the scheduled mediation, the
parties shall submit to SIMC and exchange statements of their cases and any relevant documents.
•
Where appropriate, SIMC may arrange for a pre-mediation conference to discuss the manner and
procedure for the conduct of the mediation, including setting relevant timelines.
•
In determining the manner and procedure for the conduct of the mediation, the mediator shall give
due respect to the wishes of the parties and be fair and impartial.
•
Any settlement agreement reached in the course of mediation shall be in writing and signed by or on
behalf of the parties.
•
Where any settlement agreement has been reached, the mediator shall promptly notify SIMC of the
same, and provide SIMC with a copy of such agreement.
SIMC has the added advantage of having a tie up with Singapore International Arbitration Centre (SIAC)
which allows SIMC to provide not only mediation services but also provide a hybrid dispute resolution
service called ‘arbitration–mediation-arbitration’ (Arb-Med-Arb).
Multi-tiered dispute resolution mechanisms have become common practice over the past decades. Parties to
international commercial contracts regularly provide for two or more tiers for settling their disputes, hoping
that a settlement at an early stage of the dispute will save them the time and cost of having to go to arbitration
or state court litigation.
Arb-Med-Arb is a three-step process which involves first the initiation of an arbitration. The arbitration is
then held in abeyance when mediation before a separate mediator starts as a second step. Whatever the
outcome of the mediation, the parties will usually go back to arbitration as a last step to either have their
mediated settlement recorded as a consent award, or if the mediation failed, to (continue to) resolve their
dispute by way of arbitration.
As such, Arb-Med-Arb must be distinguished from two other hybrid mechanisms, ‘Med-Arb’ and ‘Arb-Med’.
In Med-Arb, as mentioned above, the role of mediator and then arbitrator is assumed by the same individual.
Arb-Med, in turn, is usually understood as a process by which the arbitrator prepares an award which then
remains under seal until the end of the proceedings. The arbitrator then puts on the mediator’s hat and
encourages the parties to reach an agreement, failing which the pre-drafted award is issued.
Parties wanting to benefit from the Arb-Med-Arb procedure must enter into an agreement to submit their
dispute to Arb-Med-Arb under the SIMC Protocol, be it by including the Arb-Med-Arb Clause or a similar
clause in their contract or by entering into a separate agreement.
5
International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd, [2013] SGCA 55.
6
The rules are available at http://simc.com.sg/mediation-rules/ (last accessed in February 2021).
End of Document
JAPAN
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER VI
STATUS OF MEDIATION ACROSS THE GLOBE
CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
JAPAN
The concept of mediation is not an unfamiliar one in different parts of Asia, particularly in places like China,
Japan and South Korea where Confucianism has a certain influence. Culturally, Japan like India gives
immense importance to social order, harmony and face saving. While Indians have become fierce litigants
over the years, the attitude of Japanese can be seen reflected in an ancient Japanese proverb which translates
as - “In a quarrel, both parties are to blame.” The Japanese society expects tolerance and empathy for others
and a duty to save and give face. In fact, open confrontation such as litigation in court may be viewed as an
admission of personal failure.
When a Japanese goes to court, he or she is in a sense admitting personal failure. In a dispute the parties are
both held responsible for the lack of harmony and they are expected to rectify this deficiency. Their society
expects them to tolerate others and not disturb them but maintains empathy. A contemporary characteristic
of the Japanese is the need to save and give face. Traditionally, the Japanese have valued honour highly, and
consideration of the other’s honour is very important in social relations. Therefore, they will try to avoid open
confrontation.
Confucianism
Confucianism is an ethical and philosophical system, on occasion described as a religion, developed from the
teachings of the Chinese philosopher Confucius. It is often described as a philosophy of ‘harmony, peace and
conciliation’. The Confucian tradition was instrumental in shaping Japanese social relationships and moral
thought. Confucius said heaven and the afterlife were beyond human capacity to understand, and one should
therefore concentrate instead on doing the right thing in this life. The earliest records from his students
indicate that he did not provide many moral precepts; rather he taught an attitude toward one’s fellow humans
of respect, particularly respect for one’s parents, teachers, and elders. He also encouraged his students to learn
from everyone they encountered and to honor others’ cultural norms.
Confucian values emphasised not the rights of the individual but the functioning of the social order, the
maintenance of the group. A lawsuit symbolised disruption of the natural harmony that was thought to exist
in human affairs. Law was backed by coercion, and therefore tainted in the eyes of Confucians. Their view
was that the optimum resolution of most disputes was to be achieved not by the exercise of sovereign force
but by moral persuasion. Moreover, litigation led to litigiousness and to shameless concern for one’s own
interest to the detriment of the interests of society.
The tenets of Confucianism which promote mediation as a natural option in many Asian cultures is as
follows:
Page 2 of 5
JAPAN
1. Social harmony is the overall goal in human affairs.
2. Society is composed of hierarchical relationships. These relationships are based on reciprocal and
complementary duties.
3. Relationships are the source of an individual’s humanity. Family is considered the cornerstone of
social fibre.
4. Compromise, yielding and non-litigation are considered virtues.
The Approach
Japan is well known for its persistent lack of litigation when compared with most other countries of the
world. Settling disputes by mediation is hardly new to Japan. Until the Meiji Era (1868), there were no lawyers
in Japan, at least as we use the term in India. Nor was there any specialised legal training in counseling others
or in representing them in court. In fact, the legal and political systems in concert with Japanese social values
exerted a strong, virtually overwhelming, pressure on the people to resolve their problems by themselves and
without the aid of a third party.
In a domestic context, judges often act as de facto mediators and work hard to encourage settlement between
the parties. The mediation practiced in Japan is more facilitative and similar to conciliation. The mediator
retains the right to make suggestions to the parties on how to resolve the dispute.
Hence, out of court dispute resolution in Japan is a social norm. In case litigation is resorted to in a business
matter, the intention is often to use this ‘tool’ flexibly as a tactical weapon and not to fight to the end. The
idea is to strike a heavy blow with the expectation that it will then be easier to come to a settlement. However,
it is important to note that international business houses have learnt the importance of a written commercial
contract and robust dispute resolution clause in agreements. When dealing with a Japanese business, engage in
unhurried, patient settlement negotiations. Jumping the gun and resorting to stream of litigation may lead to a
deadlock which will be difficult to resolve.
Difference between Mediation and Conciliation
Mediation (assen) is defined as an informal kind of dispute resolution, where the mediator will not insist on an
agreement but instead only facilitate the discussion with more open-ended suggestions. Conciliation is defined
as when the conciliator is active by making settlement proposals. In discussing Japan, the separation of the
terms is of importance since Conciliation (chôtei) is a statutory means of dispute resolution with specific legal
meaning and prescribed procedure.
The Law
In Japan there are several types of judicial court-connected mediation - family (kaji chotei) and civil (minji chotei).
These are regulated by the following statutes: the Civil Conciliation Act (1951), the Law for the Determination
of Family Affairs (1947), the Labour Union Law (1949), the Labour Relations Adjustment Law (1946), the
Pollution Dispute Settlement Law (1970) and the Construction Business Law (1949).
While mediation is mandatory in family courts, it is optional in civil disputes.
Court Connected Conciliation (chôtei)
On average, 33% of the newly filed civil case goes to chotei. About 55% of the chôtei are successfully settled.
Court-connected conciliation (chotei) is based on an agreement between the parties that is facilitated by the
intervention of a summary or a district court. However, the term chotei is used in at least five different
technical senses in the Japanese legal material:
•
the institution or whole system of court-connected mediation,
Page 3 of 5
JAPAN
•
the court-connected mediation procedure,
•
the act of mediating itself,
•
the substance of the agreement or compromise embodied in writing,
•
the ‘meeting of the minds’ in making agreement.
Application for chotei may be made by one or both of the parties in writing or orally to the court. Where civil
matters are concerned, application can be made at any time since mediation is voluntary. Court-connected
mediation procedures may also be invoked by the judge during a pending lawsuit, without the consent of the
parties.
In chotei, the court appoints a mediation committee, which is usually composed of a presiding judge and one
or two non-judge mediators, or rarely, a judge only. The non-judges are appointed by the Supreme Court as
court staff and are trained accordingly. The committee can, in consultation with the parties, ask others to
assist them.
The procedure is not open to the public, and there are penalties against disclosure by the conciliators.
However, in mediations before the civil courts, third parties that have an interest in the outcome of the courtconnected mediation may participate in the procedure, with the committee’s approval. Also, the committee
itself may ask interested persons to participate. In this regard, the Japanese mediation practice differs from the
predominant international practice, where other interested persons can be admitted only when the parties
agree. The committee fixes a date for court-connected mediation and serves summons on the parties.
All parties are obliged to come to the mediation session, unless they are represented by an attorney. If a party
is in default and not excused, it has to pay a penalty of up to 50,000 Yen which is approximately Rs 25,800.
The initial hearing serves to acquaint the parties with the procedure. Subsequent hearings are often held with
each party alternatively to identify the nature of the dispute and the relevant issues. In practice, the procedure
often resembles a chain of private caucuses. In general, each disputant meets the mediators individually at
every conference, so that there is almost no chance that the disputants meet and negotiate with each other.
The rationale of this is that the mediators are afraid that, the disputants’ negative emotions will burst out at
the conference, which would violate the court’s dignity and make it more difficult to reach an agreement. The
latter assumption is in clear contrast to the international mediation practice, where the parties are often
allowed a so-called ‘controlled burn’ i.e. a venting of emotions. ADR theory generally works on the assumption
that a venting of emotions may sometimes be necessary to enable an enraged party to engage in rational
discussion. But in Japan uncontrolled rage and venting of emotions is considered against the Confucian
principle of social harmony.
It seems difficult to imagine how the parties can work out an amicable solution that meets their underlying
interests and that saves their relationship if they are deprived of the opportunity to hear the other party’s side
of the story and to bargain with him or her. In compensation for the disputants’ own negotiation, the chotei
mediators often make a concrete proposal and try with enthusiasm to persuade the disputants to accept it.
However, considering the success rate, this form of mediation seems to be culturally acceptable and
appropriate for Japan.
Moreover, the committee may examine the person or places involved, summon witnesses, or procure expert
opinions. At subsequent hearings, the parties are encouraged to make concessions. The committee may forbid
parties to pursue certain conduct, if it is thought that the conduct would make it ‘impossible or extremely
difficult’ to settle. Court-connected mediation proceedings often extend over several months with either party
or the court-connected mediation committee free to terminate the court-connected mediation at any time.
Page 4 of 5
JAPAN
If the parties decide to settle, the outcome is registered in court, as long as it is not contrary to law or public
policy. Subsequently, a formal court-connected mediation agreement (‘chosho’) is drawn up. Then, the courtconnected mediation is deemed to have been concluded and the chosho has the same effect as an absolute
judgment. In cases where the parties cannot come to an agreement, the court may on its own motion make an
‘order of determination in lieu of court-connected mediation’ (‘chotei ni kawaru saiban’ or ‘chotei ni kawaru kettei’).
Private Mediation
Private Mediation or assen is more in line with the international ideology of mediation. Yet, even the style of
private mediation in Japan tilts towards international practices in conciliation. Private mediation in Japan is
also institutionalised. We can study the rules of one such institution - Japan Commercial Arbitration
Association (JCAA) to understand private mediation in Japan. These rules specifically target resolution of
international commercial disputes.
The process of initiating a mediation with JCAA is as follows:
•
A request for mediation shall be submitted which shall set forth the name and contact details, a
summary of the dispute and the desired outcome, if the parties have agreed to refer the dispute to
mediation under these Rules, such agreement and if the party has any preferred language to be used in
the proceedings, such language.
•
JCAA shall request all other persons who shall be to be the parties to the mediation to inform JCAA
in writing, within twenty one days of receipt of the notice of the request for mediation, as to whether
or not they agree to mediation under the JCAA Rules if there is no existing agreement between the
parties to refer the dispute to mediation under the Rules or, if there is an agreement, whether or not
they intend to proceed with the mediation proceedings. Any party who agrees to mediation or who is
willing to participate in the mediation proceedings shall submit a written answer.
JCAA plays more of a secretarial role rather than being actively involved in the mediation. JCAA prefers the
parties to nominate their own mediator. However, if they are unable or unwilling to do so, JCAA can
nominate one or more mediators to handle proceedings. JCAA do not have a ‘panel’ of mediators in the same
way that they have a panel of approved arbitrators but are able to provide a mediator if requested.
As with party-led mediations the parties will have a free hand to decide, along with the mediator, how they
wish the proceedings to be managed and in what form. Depending on the preference of the parties a mediator
can, broadly speaking, act either as a facilitator or an evaluator. But Japanese companies may prefer the latter
approach, with a mediator taking a view on the merits of the case and trying to persuade the parties of what
an appropriate settlement might look like - this is similar to the approach used by judges in the court assisted
conciliation proceedings or chôtei. A mediator can make a settlement proposal at any time.
There is also a positive approach to ‘Arb-Med’. The mediator can be an arbitrator in relation to the same
dispute if the parties agree. Following a settlement, it allows the parties to appoint the mediator as an
arbitrator in order to make an arbitral award which incorporates the terms of the settlement. The intention of
this provision is, presumably, to aid enforcement of any settlement.
In 2020, A newly set up organisation, Japan International Mediation Center (JIMC) and Singapore
International Mediation Center (SIMC), signed a Memorandum of Understanding to operate a joint protocol
that provides cross-border businesses, including companies along the Japan-Singapore corridor, with an
economical, expedited and effective route for resolving amid the COVID-19 pandemic.
This is the first joint online mediation protocol between two international dispute resolution centers
committed to providing expedited mediation during the pandemic. Some of the key aspects of the protocol
Page 5 of 5
JAPAN
such a smaller fee as compared to the services offered by JIMC and SIMC, resolution of matters by two
mediators (one nominated by each Centre) and the settlement agreements being enforced under the Singapore
Convention.
End of Document
UNITED STATES OF AMERICA (USA)
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER VI
STATUS OF MEDIATION ACROSS THE GLOBE
CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
UNITED STATES OF AMERICA (USA)
Discourage litigation. Persuade your neighbor to compromise whenever you can… As a peacemaker the lawyer has a superior opportunity of being a good man. There
will be business enough.
—Abraham Lincoln
The practice of mediation and out of court settlement in USA has been in place since ages and is well
developed. Some say that it is in fact the birth place of mediation. But that statement is also debated by many
others. Regardless, a burgeoning area of American commercial law is alternate dispute resolution (ADR), the
term encompassing recognised methods of pre-trial or a substitute for trial settlements. Mediation is one of
the most often used methods of ADR in USA. Various institutions in USA provide specialised mediation
services in various fields of law such as matrimonial, construction, contractual, employer-employee disputes
etc.
Uniform Mediation Act (UMA)
In USA, over the past thirty years more than 2500 different state laws have been enacted in relation to
mediation and more than 250 of them address the topic of mediation privilege. Not surprisingly, there is a
great deal of inconsistency in approach not only between the different States but also within a State.
To make the laws governing mediation proceedings throughout USA uniform, the National Conference of
Commissioners of Uniform State Laws, officially endorsed by the American Bar Association have drafted the
Uniform Mediation Act (UMA). The UMA is a proposed uniform law. It does not have the force of law until
it is adopted in a given State. Presently, UMA has been enacted by Nebraska, Illinois, New Jersey, Ohio, Iowa,
Washington, Indiana and the District of Columbia. Although they did not adopt the UMA, Delaware, Florida,
Montana, Nevada, Oregon and Wyoming have adopted similar bills. Virginia adopted a similar bill before the
UMA was finalised. Florida’s statute §44.406 provides confidentiality and allows for many of the same UMA
exceptions, however, those who ‘knowingly and willfully’ disclose mediation communications will be liable for
damages. The remedies provided by the statute include equitable relief, compensatory damages, attorney’s
fees, mediator’s fees and costs incurred in the mediation.
The UMA has been legislated to ensure that mediation communications are kept confidential. For mediation
to be successful, the disputants participating in the proceedings as well as non-party participants should be
able to speak honestly and frankly. To meet this objective, the cornerstone of UMA is that all mediation
communication shall be confidential, and if the communication is also privileged, the mediation
communication shall not be subject to discovery. It can also not be admitted into evidence in any formal
proceedings. Hence, in any legal proceedings initiated after mediation, a party can refuse to disclose and also
stop any other person from disclosing, any mediation communication. Similarly, mediators and other non-
Page 2 of 2
UNITED STATES OF AMERICA (USA)
party participants can also deny disclosing the statements made by them or submitted in writing during
mediation without any leg consequence. They may also prevent others from disclosing their statements. The
only way in which mediation communication can be disclosed in subsequent formal legal proceedings is if the
person himself and the parties in the mediation agree to such public disclosure. There is no waiver only on the
basis of conduct.
There are of course exceptions to this general rule. First, this privilege of confidentiality extends only to
mediation communications. Mediation does not make underlying facts of the dispute confidential. Also,
evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from
discovery merely due to use of mediation mechanism. Also, a person who intentionally uses mediation as a
tool to commit or conceal a crime cannot assert the privilege.
Also, if the mediation session is open to the public, a privilege of confidential mediation communication
cannot be asserted. Other instances where the privilege of confidential mediation communication cannot be
asserted are as follows:
•
An arbitration panel, court or administrative agency finds in a felony proceeding that need for the
information outweighs the interest in confidentiality.
•
Communication is sought or offered to prove or disprove neglect, abuse, abandonment, or
exploitation in a proceeding where a child or adult protective agency is a party.
•
Communication contains a threat to inflict bodily injury.
•
Communication would prove or disprove a claim of professional misconduct filed against a mediator,
or against a party, party representative, or non-party participant based on conduct during a mediation.
•
In a proceeding to prove a claim of defense to reform or avoid liability on a contract arising out of
the mediation, there is no privilege.
UMA is intended to have wide application and at the same time preserve party autonomy of the mediation.
UMA also allows parties to opt out of the confidentiality and privilege rules prescribed. Also, UMA does not
provide for any qualifications or other professional standards for mediators and allows the parties to make
that determination for themselves. UMA generally prohibits a mediator, other than a judicial officer, from
submitting any written record or other communication to a court or any other authority that may pass
judgment on the conflict which was subject of the mediation. However, the mediator may report the facts of
the dispute and can also inform whether the mediation is ongoing or the mediation has concluded, the
participants of the proceedings and the matters listed above which do not enjoy the privilege of being
confidential under UMA. UMA also prescribes model code of adherence requiring a mediator to disclose any
conflicts of interest in relation to a dispute or disputants before accepting to mediate the dispute. The
mediator is also bound to disclose his qualifications as a mediator to any requesting disputing party.
UMA aims to enhance the usage of alternative dispute resolution mechanism by providing safeguards and
encouraging frankness of the parties which is necessary to unearth the underlying issues and hidden interests
in a mediation. UMA aims to increase predictability of the process and protecting confidentiality of the
proceedings according to the expectations of the participants.
End of Document
EUROPE
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER VI
STATUS OF MEDIATION ACROSS THE GLOBE
CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
EUROPE
In the EU, the increasing focus on mediation was a consequence of years of mounting concern about court
costs and congestion, and other obstacles to cross-border dispute resolution in the single market.
Mediation techniques have been used in Europe for many centuries. The institutionalisation of mediation as a
mechanism of dispute resolution in the European Member States, however, dates back only a few decades, in
some cases only a few years. Hence, mediation as a method of dispute resolution is still developing and
legislatures are in the middle of the process of establishing adequate rules. Some Member States have
embraced mediation longer or quicker than others, for example the United Kingdom and the Netherlands.
They offer valuable in-sights on the success factors for mediation as an institution as well as in the individual
case. Other Member States have a rather short history of mediation legislation, but have prepared their rulemaking by extensive comparative research and exchange with stakeholder groups, for example Austria and
Germany.
The European Union ‘Directive 2008/52/EC of the European Parliament and of the Council on Certain
Aspects of Mediation in Civil and Commercial Matters’ provides a framework for cross-border mediation.
The Mediation Directive dates from 21 May 2008, has been in force since 13 June 2008 and requires the
European Member States (except Denmark) to implement the necessary laws, regulations and administrative
provisions by 20 May 2011 at the latest.
The European Union intends to encourage use of out of court dispute resolution mechanism specially
mediation through the Directives. The Directives apply to cross-border, civil and commercial conflicts.
However, customs, revenue, administrative matters or the liability of the State for acts or omissions in the
exercise of state authority are excluded from the purview of the Directives. The Directive require Member
States of European Union to enact laws which empower the courts to suggest mediation to the disputing
parties. However, use of mediation is not mandatory.
While the Directive only applies to cross-border disputes, it does not restrict the Member States to enact laws
that cover cross-border as well as purely national mediations. Generally, one set of rules for national and
international mediations is desirable, as this fosters the understanding and practice of mediation and avoids
arbitrarily different regulation.
In EU, mediation is practiced as per the accepted international practices. According to the EU Directive,
mediation means a structured process, however named or referred to, whereby two or more parties to a
dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute
with the assistance of a mediator. It includes mediation conducted by a judge who is not responsible for any
Page 2 of 7
EUROPE
judicial proceedings concerning the dispute in question. It excludes attempts made by the court or the judge
to settle a dispute in the course of judicial proceedings concerning the dispute in question.
Since, the disputants device their own terms of settlement in mediation, the likelihood of the voluntary
implementation of the settlement agreement is high. However, as an added protection, the Directive requires
Member States to also put in place a mechanism through which the disputing parties can request for
confirmation of the settlement agreement through a decision, judgment or authentic act by a public authority
or court. This provision has been made to allow recognition and enforcement of settlement agreements
throughout the EU under the same conditions as those established for the recognition and enforcement of
court decisions in parental responsibility matters, civil and commercial matters.
The larger picture of the evolution of mediation regulation in the European Union shows a trend towards a
more extensive and more intensive regulation. A strong regulatory impetus has emanated from the Mediation
Directive. Many Member States reacted by not only regulating cross-border mediations as required, but
extended their law reforms to cover purely national mediations as well. Member States that have come
forward with a comprehensive reform of mediation law since June 2008, when the Mediation Directive came
into force, are, for example France, Germany, Greece, Italy and Spain. The development towards more
intensive regulation of mediation seems to follow the example in the USA, the pioneer jurisdiction of
mediation, which has seen a regulatory increase over the years.
A brief outline of some jurisdictions in Europe is as follows:
Jurisdiction
Law
Other Particulars
Cost of Mediation
Italy
Legislative Order (decreto legislativo)
No 28/2010
Mediation services are provided
by mediation organisations which
may be public or private and
which are entered in a register of
mediation organisations (registro
degli organismi di mediazione) kept by
the Ministry of Justice.
The criteria that determine the
mediation fee (indennità di
mediazione), comprising the fee for
initiating the procedure and the
fee for mediation proper, are laid
down in Ministerial Order No
180/2010.
Mediation organisations can help
to arrive at out-of-court
settlements in any dispute that
concerns entitlements that the
parties are free to renounce or
transfer (diritti disponibili).
The amounts are specified in
Table A annexed to the Order.
They vary depending on the value
in dispute.
Mediation is voluntary, though it
may be suggested by a judge or
required by a contract between
the parties.
Germany
Mediation Act of 21 July 2012
(Federal Law Gazette I, p. 1577)
Mediation is a confidential and
structured process in which the
parties strive, on a voluntary basis
and autonomously, to achieve an
amicable resolution of their
conflict with the assistance of one
or more mediators. A mediator is
an independent and impartial
person without any decisionmaking power who guides the
parties through the mediation.
Subject to agreement between the
private mediator and the parties
concerned. It is realistic to assume
that hourly fees may range
approximately from EUR 80 to
EUR 250.
Page 3 of 7
EUROPE
The scope of the German
Mediation Act exceeds the
requirements of the European
Directive; while the Directive
provides only for cross-border
civil and commercial disputes, the
German Mediation Act covers all
forms of mediation in Germany,
irrespective of the form of dispute
or the place of residence of the
parties concerned.
Austria
Zivilrechts-Mediations-Gesetz
Austria is the European pioneer
in mediation law and practice.
Austria had already established
legal rules for mediation in family
law cases back in1999, and in
2004 it enacted the first Mediation
Act in Europe, the ZivilrechtsMediations-Gesetz. Austrian
mediators are organized into
several professional associations;
the Österreichische Bundesverband für
Mediation (ÖBM) claims to be the
biggest special interest group in
Austria and in the European
Union. The Austrian Act
influenced legislation in Europe
and serves as a role model,
especially for the German
Mediation Act (Mediationsgesetz).
Unlike the German Mediation
Act, which transposed the
Mediation Directive into German
law, the Austrian Mediation Act
relates only to disputes in civil law
matters. While theiterary
translation of the mediation act is
‘Civil Law Mediation Act’, it may
be properly referred to as the
‘Mediation Act’ since it is the only
Austrian act which deals solely
with mediation.
Parties to a dispute must be
allowed to submit a request for
the content of a written
agreement resulting from
mediation to be made
enforceable. It is up to the
Member States to indicate which
courts or other authorities are
responsible for receiving such
requests.
In Austria the content of an
agreement resulting from
mediation is enforceable only if
the agreement takes the form of a
settlement (Vergleich) before a
court or a notary.
The mediation fee is as agreed by
the private mediator and the
parties to the dispute.
Page 4 of 7
EUROPE
Ireland
Order 63A Rules of the Superior
Courts, [Commercial Proceedings]
2004
When hearing a matter entered in
the commercial list of the High
Court, a judge may (under order
63A Rules of the Superior Courts,
[Commercial Proceedings] 2004),
on the application of any of the
parties or on his own initiative,
decide to adjourn the proceedings
or any issue for up to twenty-eight
days to allow the parties, time to
consider whether the issue could
be referred to a process of
mediation, conciliation or
arbitration.
Payment is subject to agreement
between a private mediator and
the parties. In some cases, if a
party has refused to use mediation
as an attempt to resolve a dispute
before taking the dispute to court,
this may affect the monetary
awards they receive.
Mediation is generally entered
into on a voluntary basis (it is
however on a statutory footing in
relation to the areas of personal
injuries, equality, disability,
commercial cases, family
mediation, labour disputes and
private residential tenancy
disputes) and so is potentially
admissible in almost all cases,
assuming the parties agree on that
course of action and the intention
is that the outcome would be
legally binding.
It is common to have a mediation
or conciliation clause in many
business contracts in Ireland and
if that is the case, the parties will
usually be bound by that clause in
the contract. Mediation is most
commonly used in connection
with personal injury, workplace,
family and commercial cases, and
in cases of complaints of unlawful
discrimination under equality
legislation. Mediation is popular
in these areas as it saves money,
enables parties to reach a
compromise and facilitates the
maintenance of a work or
personal relationship.
Many employers, particularly in
the public service, have available
mediation services which aim to
resolve workplace disputes, for
instance, in relation to bullying
and harassment or other interpersonal disputes.
Spain
Law 5/2012 of 6 July 2012 on
mediation in civil and commercial
matters transposes Directive
2008/52/EC of the European
Parliament and of the Council of
Mediation is very common in
labour disputes. It is sometimes
compulsory to attempt mediation
before resorting to the courts.
Mediation connected with the
court is free of charge. Outside of
mediation connected with the
court, the parties are free to use a
mediator and to pay freely agreed
Page 5 of 7
EUROPE
21 May 2008 into Spanish law.
This Law establishes a minimum
framework for the practice of
mediation without affecting the
provisions adopted by the
Autonomous Communities.
Law 5/2012 on mediation in civil
and commercial matters includes
the possibility of informing the
parties at the preliminary hearing
that they have the option of using
mediation to try to resolve the
dispute and, taking into account
the purpose of the court
proceedings, the court may invite
the parties to attempt to reach an
agreement that would end the
proceedings or allow the parties
to request a stay so that they can
undertake mediation or
arbitration. As far as the Spanish
system is concerned, it is in the
area of family law that the
mediation process is most
structured and reaches its
maximum development.
fees. Regarding the cost of
mediation, Law 5/2012 expressly
provides that whether or not
mediation has ended in an
agreement, the cost will be
divided equally between the
parties unless otherwise agreed.
It is one of the few jurisdictions
where mediation is also done
under criminal law. Mediation in
the criminal field is aimed, on the
one hand, at reintegrating the
offender and, on the other, at
compensating the victim.
England and Wales
Civil mediation is not regulated by
law, nor is it a prerequisite to
court proceedings. However,
parties in civil cases are required
to consider mediation seriously
before going to court.
Cross-Border Mediation (EU
Directive) Regulations 2011
governs cross border disputes
Mediation can be used to resolve
a whole range of everyday civil
and commercial disputes –
including housing issues, business
disputes, workplace disputes,
small claims, debt claims,
boundary disputes, employment
disputes, contractual disputes,
personal injury and negligence
claims as well as community
disputes such as nuisance or
harassment issues.
Mediation can also be used in
relation to family disputes,
including divorce, dissolution,
civil partnership dissolution,
Children Act applications,
including contact and residence. It
is not restricted to former
partners or spouses. For example,
grandparents could use family
mediation to help agree on
arrangements for them to
continue a relationship with their
grandchildren.
While mediation is entirely
voluntary, the civil procedure
rules set out the factors to be
taken into account when deciding
the amount of costs to award.
The cost of mediation varies by
provider and is not generally
regulated by the state. In civil
matters, the cost of mediation
relates to the value of the issues in
dispute and the time required to
undertake the mediation process.
Page 6 of 7
EUROPE
The court must have regard to the
efforts made, if any, before and
during the proceedings in order to
try to resolve the dispute.
Consequently, if a winning party
has previously refused a
reasonable offer of mediation, the
judge could decide that the losing
side will not be required to pay
the winning side’s costs.
France
Order (ordonnance) No 2011-1540
of 16 November2011 transposed
EU Directive 2008/52/EC into
French law.
Under French law, parties may
refer a matter to mediation in any
area of law, provided the
mediation does not undermine
rules of public policy governing
social and economic conduct
(ordre public de direction). For
example, it will not be possible to
conclude a mediation agreement
in order to circumvent mandatory
rules on marriage or divorce.
Payment is subject to agreement
between a private mediator and
the parties.
Mediation is used most often in
family cases (at the family court,
through a family mediator
(médiateur familial) and in small
claims cases (before the local
court or the district court,
through a legal conciliator
(conciliateur de justice).
The Order of 2011 broadened the
scope of the provisions in the
Directive to cover not just crossborder mediation but also
mediation inside the country, with
the exception of disputes relating
to a contract of employment or
involving administrative law
within the sovereign power of the
State (droit administratif régalien).
Hungary
Act LV of 2002
Act LV of 2002 on mediation
covers civil litigation, but excludes
mediation in libel proceedings,
administrative proceedings,
guardianship proceedings,
proceedings on the termination of
parental responsibility,
enforcement proceedings,
procedures establishing paternity
or ancestry, and constitutional
appeals.
Participation in mediation entitles
parties to reduction in court duty
(court fees). Mediation is not free
of charge; payment is subject to
agreement between the mediator
and the parties.
Recourse to mediation is
voluntary.
Netherlands
No law
Recourse to mediation is entirely
voluntary. There is a code of
conduct for mediators.
Costs depend on the type of case.
Some procedures are complex
and time-consuming and
Page 7 of 7
EUROPE
Mediation is always allowed and is
most frequently used in civil law
and public law.
The Dutch Mediation Institute
(NMI) provides information on
mediation and registers mediators.
The NMI provides independent
quality assurance in respect of
mediation and mediators
nationwide, and maintains a
public Register of Mediators.
End of Document
therefore more expensive. There
are also cases where the parties
are advised to involve specialized
lawyers in the mediation.
BRAZIL
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER VI
STATUS OF MEDIATION ACROSS THE GLOBE
CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
BRAZIL
Among emerging market economies, Brazil’s ADR regime, specifically mediation has faced a significant delay
in appearing in the legal practice. After the introduction of four bills for mediation in the past, it was only in
2015 on the basis of the expert commission under Judge Luis Felipe Salomão, the first Mediation Law was
enacted.
Brazilian Mediation Law
The National Congress of Brazil enacted the Law N. 13,140 (known as the Brazilian Mediation Law) on 29
June 2015. It came into effect from March 2016. The law provides for mediation for individuals, private
entities, as well as public entities. It regulates extrajudicial and judicial mediation. The provisions on judicial
mediation are required to be read together with the new Brazilian Civil Procedure Code, 2015. It provides for a
mediation or a conciliation hearing in the early stages of most lawsuits. The Code also regulates the activities
of mediators in judicial proceedings. Under the law, a mediation clause is binding in an agreement and the
parties are required to undergo mediation, similar to the effect of an arbitration clause. This binding effect
contributes to the acceptance of mediation as a mode of dispute resolution and conflict resolution.
Article 3 of the Mediation Act states that any dispute related to disposable rights, or to inalienable rights
susceptible to settlement may be mediated. Hence mediation is very commonly used for family disputes,
consumer disputes, commercial disputes, labour disputes and intellectual property disputes. The Mediation
Act also allows for mediation for controversies involving public issues and expressly for settlement of
disputes involving organisations or entities of public administration and collective mediation of disputes
related to public services.
For judicial mediation, the Civil Procedure Code requires mediators and private chamber to submit the details of
the mediation before a state court and to form a part of a federal chamber with details such as the mediator’s
performance, the number of cases a mediator is participated in, if a settlement was reached, relevant sector.
This data is required to be released for public periodically.
Public entities as parties to mediation
The Mediation Act envisioned for creation of administrative resolution and conflict chambers for disputes
involving public entities. However, meanwhile it allowed for the immediate use of mediation via ad hoc
forums till appropriate chambers are constituted.
In the Civil Procedure Code, 2015 requires every dispute to undergo a phase of mediation or conciliation, before
the defendants present their answers. This is done with the intention of inculcating a culture of preinstitutional mediation and thereby reduce the stress on the parties and the judiciary. Under article 166 of the
Page 2 of 3
BRAZIL
Code, the mediation shall be governed by the free will of the parties while also providing the definition of
procedural rules. The Mediation Act lays down the general provisions for procedures to be followed in a
mediation.
For extra-judicial mediation, the Mediation Act requires the party to send a formal invite with the scope of the
matter, along with the date, time and venue of the first meeting. If the receiving party does not respond within
30 days, it is deemed that the mediation has been rejected. For judicial mediation, the parties are required to
declare their interest in mediation on record. Upon the party’s interest, the judge will schedule a
conciliation/mediation hearing. Only upon the failure of the mediation, the court may hear the matter. As for
extrajudicial mediation, the parties may define the time frame for themselves.
Mediation clause and eligibility of a mediator
The Mediation Act also states that each mediation clause in an agreement is required to include the terms,
place of the first meeting, the associated penalties on failure of either party to show up in the first meeting and
the criteria for choosing a mediator. Alternatively, the parties may also choose to refer to the rules of reputed
institutional mediation centre. The mediation rests the choice of the mediator with the parties themselves. For
extrajudicial matters, the mediator is not required to be part of a particular association, council or any such
entity. Any third party with legal capacity, a university degree requiring two years of study or more along with
a training course qualification from an accredited body is eligible to be a mediator for extra-judicial matters.
Depending on the complexity of the issues, the parties may involve more than one mediator.
Principles to follow in a mediation
In congruence with the general principles of a mediation, the mediators are required to follow impartiality,
independence, free will of the parties while formulating the settlement with strong emphasis of confidentiality
and good faith. To strengthen this, the Mediation Act specifies that it is the duty of the mediator to inform
the parties of any potential facts that may raise doubt regarding their impartiality. The parties have the right to
refuse the involvement of the mediator on the basis of such facts. The general disqualification factors for
judges such as personal relationships for the parties or their lawyer or any personal interest in the dispute shall
also apply for mediators. At the end of the mediation, the parties may enter into a written agreement or state
that the matter was not able to be settled. This record may not be used as an evidence for the next stage of
dispute resolution including arbitration procedures. The mediators are not allowed to reveal information
declared by a party during private session, unless authorised. However, if the information is required to be
disclosed as required under any law or necessary for execution of the settlement that the parties have reached
through mediation. This duty of confidentiality requires the parties, their representatives, lawyers and any
person that directly or indirectly participates in the proceeding with the mediator briefing parties about this
duty. The mediator is also prohibited from appearing as a witness with regard to the facts coming to light
during a mediation.
Mediation agreement and its enforcement by the judiciary
The settlement agreement entered into by the parties shall be binding on the parties as an extrajudicial
enforcement instrument. If the parties submit these terms to the confirmation of the court, it shall be treated
as a judicial execution title. If the parties reach a settlement agreement about a matter involving inalienable but
susceptible to settlement rights, it is mandatory that the same is submitted to the judicial confirmation after a
state attorney’s opinion.
The Mediation Act does not mandate the settlement agreements to follow a particular format. The
agreements usually contain a report, brief of a dispute, the parties rights and obligations, date and place of
delivery of the agreement along with the signature of the parties and the mediator.
Any changes, revisions, withdrawal or challenge are required to be made through the judiciary as it is treated
as an execution title. For enforcement of final terms of mediation concluded in foreign jurisdictions to decide
Page 3 of 3
BRAZIL
whether the settlement agreement constitutes title to execution. According to article 784 of the Civil
Procedure Code, the final agreement of a mediation carried out in other jurisdiction are enforceable in Brazil.
To be eligible for this, the agreement is required to fulfil legal requirement of the place where it was drawn
and indicate that Brazil shall be the place for fulfilment of the obligation.
Online mediation
The Mediation Act under Article 46, mediation through the internet or any other communication means that
allows settlement on agreement of the parties. The Civil Procedure Code allows online mediation hearings to take
place online. In March 2016, the National Council of Justice launched a platform for online dispute resolution
(ODR). Several banks and a large telephone company use this service.
End of Document
HONG KONG
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER VI
STATUS OF MEDIATION ACROSS THE GLOBE
CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
HONG KONG
Mediation in Hong Kong originated in the mid-1980s in certain public sector construction contracts. In 1994,
the Hong Kong Mediation Council (HKMC), a division of the Hong Kong International Arbitration Centre
(HKIAC) was established to promote mediation in relation to commercial, construction, family and general
disputes. Mediation practice is diverse in Hong Kong and includes court-connected, private and community
settings. In 2013, the Hong Kong Mediation Accreditation Association Limited was established as a uniform
industry-based mediator accreditation body for the territory of Hong Kong. In 2017, Hong Kong became the
first Asian jurisdiction to pass apology legislation to further facilitate the use of mediation and the settlement
of disputes generally. In terms of practice, mediation has expanded as a practice area in relation to
construction, building management, commercial, workplace, medical, family and community disputes. The
Hong Kong Working Group on Mediation published a Code of Conduct for mediators called the Hong Kong
Mediation Code, and recommended its wide promulgation among mediation service providers.7 In Hong
Kong, the internal mediation process is largely regulated by private contracts and industry norms, such as
institutional rules of dispute resolution organisations. They also regulate the qualifications and eligibility of a
professional mediator. The mediation industry body with the support of the government is responsible for
setting the credentials required by a mediator.
Mediation Ordinance (Cap. 620)
The Mediation Ordinance (Cap 360) was enacted on 1 January 2013 for Hong Kong and mediations which
choose Hong Kong law to be the relevant law. The ordinance makes all mediation communication
confidential and inadmissible as evidence in any proceedings. This mediation communication includes
communication for the purpose of mediation or in the course of mediation. It however excludes agreement to
mediate and settlement agreement. Mediation communication may be admitted in court on the court’s leave.
The following information may be disclosed without such permission, where:
•
The parties and mediator give consent;
•
The information is already available in public domain;
•
The information is subject to discovery/disclosure; or
•
The information is similar to disclosures already required to be made by parties.
The Practice Direction 31 (PD 31) came into force on 1 January 2010. It imposes a duty on civil litigants to
consider and reasonably engage in mediation before trial with cost sanctions for failing to do so.
The Mediation Ordinance (MO) was issued in 2013 and is considered to be a major milestone in the
development of mediation in Hong Kong. The MO applies to domestic mediations, mediation where parties
Page 2 of 2
HONG KONG
choose Hong Kong law as the relevant law for mediation and mediation involving government as well. It
deals with various aspects of the mediation process, including rights and obligations of participants for
confidentiality and non-admissibility of mediation evidence.
The agreement to mediate is required to be in writing, which allows for appointment of mediator before or
after the dispute has occurred. The main aim of this legislation is to provide sanctity to the mediation and
protect the confidentiality of the process.
Confidentiality of mediation communication
The ordinance gives protection to the mediation communication. This communication includes any
information about anything that is said and done during mediation, any document prepared for it and any
information provided during the mediation. This protection is not extended to the agreement to mediate and
settlement agreement arising out of the mediation. The confidentiality has the following restrictions:
•
Where on the consent of the parties, mediator and the person who makes the communication to
commence mediation agree for such disclosure;
•
Where the mediation communication is subject to discovery for civil proceedings;
•
Where there are reasonable grounds that the disclosure is necessary to prevent or minimise danger of
injury to a person or harm to a child;
•
Where the disclosure is required for research, evaluation or educational purposes;
•
Where the disclosure has been made for the purpose of seeking legal advice;
•
Where the disclosure is made in accordance with a requirement imposed by law.
Third Party Funding
The Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance, 2017 allows for
third party funding of mediation.
7
Available at http://www.jointmediationhelpline.org.hk/pdf/pdf4.pdf (last accessed in April 2021).
End of Document
INTERNATIONAL ORGANIZATIONS
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn
Anuroop Omkar and Kritika Krishnamoorthy
Anuroop Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > Anuroop
Omkar and Kritika Krishnamurthy : The Art of Negotiation and Mediation, 2nd Edn > CHAPTER VI
STATUS OF MEDIATION ACROSS THE GLOBE
CHAPTER VI STATUS OF MEDIATION ACROSS THE GLOBE
INTERNATIONAL ORGANIZATIONS
World Intellectual Property Organization (WIPO) Arbitration and Mediation Centre
The WIPO Arbitration and Mediation Center was established in 1994 and forms part of the World
Intellectual Property Organization (WIPO) in Geneva, Switzerland. Its purpose is to offer arbitration,
mediation and expert determination services for the resolution of commercial disputes between private parties
involving intellectual property.
The WIPO Arbitration and Mediation Center is a neutral, international and non-profit dispute resolution
provider that offers time and cost efficient alternative dispute resolution (ADR) options. WIPO mediation,
arbitration, expedited arbitration, and expert determination enable private parties to efficiently settle their
domestic or cross-border intellectual property (IP) and technology disputes out of court. The WIPO Center
also offers domain name dispute resolution services.
The Rules governing the WIPO dispute-resolution procedures contain features that are especially suitable for
disputes involving intellectual property, such as licensing agreements or other forms of transaction relating to
patents, trademarks, copyright or know-how. However, the Rules can be used for the resolution of all
commercial disputes, including those not involving intellectual property.
WIPO has introduced new rules for mediation at WIPO with effect from 1 June 2014. A brief overview of
the mediation procedure as per the rules is as follows:
•
A party to a Mediation Agreement that wishes to commence a mediation shall submit a Request for
Mediation in writing to the Center. It shall at the same time send a copy of the Request for Mediation
to the other party.
•
The Request for Mediation shall contain or be accompanied by contact details of disputing parties or
the representative of the party filing the Request for Mediation, a copy of the Mediation Agreement
and a brief statement of the nature of the dispute.
•
The Center shall forthwith inform the parties in writing of the receipt by it of the Request for
Mediation and of the date of the commencement of the mediation.
•
The parties shall appoint a mediator as per the detailed procedure prescribed.
•
The mediation shall be conducted in the manner agreed by the parties. If, and to the extent that, the
parties have not made such agreement, the mediator shall, in accordance with these Rules, determine
the manner in which the mediation shall be conducted.
Page 2 of 4
INTERNATIONAL ORGANIZATIONS
•
The mediator shall be free to meet and to communicate separately with a party on the clear
understanding that information given at such meetings and in such communications shall not be
disclosed to the other party without the express authorization of the party giving the information.
•
As soon as possible after being appointed, the mediator shall, in consultation with the parties,
establish a timetable for the submission by each party to the mediator and to the other party of a
statement summarising the background of the dispute, the party’s interests and contentions in relation
to the dispute and the present status of the dispute, together with such other information and
materials as the party considers necessary for the purposes of the mediation and, in particular, to
enable the issues in dispute to be identified.
•
The mediator may at any time during the mediation suggest that a party provide such additional
information or materials as the mediator deems useful.
•
Any party may at any time submit to the mediator, for consideration by the mediator only, written
information or materials which it considers to be confidential. The mediator shall not, without the
written authorisation of that party, disclose such information or materials to the other party.
•
The mediator shall promote the settlement of the issues in dispute between the parties in any manner
that the mediator believes to be appropriate, but shall have no authority to impose a settlement on the
parties.
Each person involved in the mediation, including, in particular, the mediator, the parties and their
representatives and advisors, any independent experts and any other persons present during the meetings of
the parties with the mediator, shall respect the confidentiality of the mediation and may not, unless otherwise
agreed by the parties and the mediator, use or disclose to any outside party any information concerning, or
obtained in the course of the mediation. Each such person shall sign an appropriate confidentiality
undertaking prior to taking part in the mediation.
The Center operates on a non-profit basis. In respect of each procedure, fees are payable to the Center and to
the mediator, arbitrator or expert, which are calculated in accordance with a standard schedule of fees on the
basis of the amount in dispute. The Center believes that effective dispute resolution must be affordable.
Unless the parties agree otherwise, the administration fee, the fees of the mediator and all other expenses of
the mediation, including, in particular, the required travel expenses of the mediator and any expenses
associated with obtaining expert advice, shall be borne in equal shares by the parties.
In addition to its role in administering disputes under WIPO procedures, the Center provides the following
services:
•
Assistance in the drafting of contract clauses providing for the submission of future disputes to
WIPO procedures.
•
Development of tailor-made dispute resolution procedures for specific commercial circumstances or
industry characteristics.
•
Training programs for mediators and arbitrators as well as conferences on intellectual property
dispute resolution.
•
Good Offices services, facilitating discussion by the parties of whether a specific dispute should be
submitted to a WIPO procedure.
World Bank
The World Bank appoints mediators on contract basis for mediation of its various disputes. The role of
mediators within the World Bank Group’s mediation offices is to assist the bank’s country offices in Africa
Page 3 of 4
INTERNATIONAL ORGANIZATIONS
with their dispute resolution needs. This includes mediation, facilitation and training. A small number of
mediators are selected to assist the bank as external consultants on the basis of their extensive knowledge of
workplace and labour law, civil rights law, dispute resolution theory, and practice and mediation. A contract
appointment also provides a potential springboard to the mediation offices of a number of other international
organisations, including the International Finance Corporation (IFC), the United Nations’ Ombudsman and
Mediation Services office and the Africa Development Bank.
Additionally, the World Bank also has a panel of mediators to specifically resolve employment disputes within
World Bank. The Office of Mediation provides World Bank Group staff with processes for resolving
workplace disputes, including mediation and group facilitation. In mediation, an impartial mediator helps
parties better understand their issues, concerns, needs and interests. The mediator also helps parties make
decisions on how to resolve their matter. The mediation process is informal and confidential. When issues are
settled through mediation, a memorandum of understanding sets out the specific agreements reached by the
parties, and the parties’ agreement is final and binding.
Mediation Support Unit (MSU), United Nations Peacemaker
The United Nations (UN) offers mediation services as part of its overall peacemaking and preventive
diplomacy efforts. UN engages in a wide range of activities including operational support to mediation,
facilitation and dialogue processes, strengthening the mediation capacity of partners and developing mediation
guidance and best practices.
UN Peacemaker is part of the UN’s overall effort to provide advice and support to the Secretary-General and
his Representatives in their efforts to resolve international disputes and internal conflicts. It is also intended to
be useful to UN partners actively engaged in peacemaking efforts, including Member States, regional
organisations, civil society, non-governmental organisations and national mediators. Recognising the need for
a more professional approach to mediation, the United Nations has enhanced its operational readiness to
implement and support mediation efforts. A key innovation in this regard was the establishment of the
Mediation Support Unit (MSU) within the Policy and Mediation Division (PMD) of the UN Department of
Political Affairs (DPA) and, within the unit, the creation of a Standby Team of mediation experts. With the
goal of supporting relevant actors to achieve a just and sustainable peace through the pacific settlement of
disputes, the unit engages in and supports a wide range of operational activities and projects and works closely
with a number of partners.
United Nations mediators work within the framework of the Charter of the United Nations, relevant Security
Council and General Assembly resolutions and the Organisation’s rules and regulations. Mediators also
conduct their work within the framework constituted by the rules of international law that govern the given
situation, most prominently global and regional conventions, international humanitarian, human rights and
refugee laws and international criminal law, including, where applicable, the Rome Statute of the International
Criminal Court. In addition to binding legal obligations, normative expectations impact on the mediation
process, for example regarding justice, truth and reconciliation; the inclusion of civil society; and the
empowerment and participation of women in the process.
In the United Nations, the act of mediation describes the political skills utilised in efforts carried out by the
United Nations Secretary-General or his representatives, through the exercise of the Secretary-General’s
‘Good Offices’, without the use of force and in keeping with the principles of the UN Charter.
The United Nations mediator engages in a process as a third party, when those in conflict either seek or
accept the assistance of the United Nations with the aim to prevent, manage or resolve a conflict. Mediation
skills, therefore, could be employed in all of the following contexts:
•
prior to conflict through preventive diplomacy;
Page 4 of 4
INTERNATIONAL ORGANIZATIONS
•
during a conflict through peacemaking activities;
•
after a conflict to promote implementation modalities and agreements;
•
during peace building efforts to consolidate peace and lay the foundation for sustainable
development.
A United Nations mediation mandate, however, is more specifically defined. When the United Nations is
called upon to mediate a resolution to a conflict, the parties accept what is called a mediation mandate. This
means that they accept that the UN mediator is there to help and provide them find solutions to resolve their
conflict. A United Nations mediation mandate provides the authority for the Secretary-General or his envoys
to:
•
meet and listen to all parties to the conflict;
•
consult all relevant parties for the resolution of the conflict;
•
propose ideas and solutions to facilitate the resolution to the conflict.
While the final outcome has to be agreed to by the parties, being a mediator entails a much greater
responsibility and involvement in the outcome of the conflict.
As in other mediations, a United Nations mediated outcome is not binding, unless the Security Council takes
actions to enforce the agreement. Final implementation of the mediated agreement rests upon the
commitment of the parties. A United Nations mediation mandate is particularly useful to the parties as it gives
them the opportunity to avail themselves of the experience and best practices that the United Nations, as an
organisation, has gained in the field of conflict resolution.
World Trade Organization- Dispute Settlement Understanding
The current dispute settlement system as envisioned in the WTO Agreement is embodied in the
Understanding on Rules and Procedures Governing the Settlement of Disputes, commonly known as the
Dispute Settlement Understanding (DSU). In the dispute resolution mechanism, the first stage is for the
consultations among the relevant governments with the option to use consultation and mediation at any stage.
The parties often choose to solve their disputes through mediation and conciliation. For this, the parties may
settle a dispute by finding a mutually agreed solution in bilateral negotiations or reference to the good offices,
conciliation or mediation. More than half of all disputes registered with the WTO are settled amicably.
Article 3.7 of the DSU gives preference for the parties to settle their disputes through mutually agreed
solutions. However, the parties are required to not nullify or impair benefits accruing to the WTO agreement.
If the matter has been formally raised in a request for consultations, the solution must be notified to the
Dispute Settlement Board (DSB), the relevant councils and committees as the case may be. The parties shall
also be required to inform other members and provide them with an opportunity to respond.
In the first stage of the dispute resolution, which may extend up to 60 days, the parties to a dispute are
required to talk to each other to see if the differences may be solved among themselves. On the failure of this,
the Director-General, WTO may attempt mediation.
End of Document