There could be various scenario for considering mediation to resolve existing or probable conflict. The first and foremost common sense approach is to resolve disputes through mediation just because it saves time and cost involved in arbitration or litigation in court. Further, there is no certainty about the final outcome in litigation or arbitration. More often, neither parties are happy with the final outcome in court proceedings or arbitration. Many a times, after initially launching litigation – parties regret as that is not what they wanted. There could be multiple challenge and appeals to even interim rulings and relief. And where one goes through the roller coaster of loosing, winning, loosing, winning, the final winner faces the harsh reality that final decree is not honoured by opposite party. And one need to apply for execution proceedings, which itself can take several years. Just look at number of pending cases and for how many years from here.
As contrast, in mediation, parties to dispute resolve their differences themselves and it helps them relation, preserve confidentiality and more importantly maintain reputation / brand image. Mediation can perhaps be used to establish long lasting peace without sacrificing concerns of justice, fair play and equity.
Since mediation is not adversarial, it presents a possibility of looking at disputes not as “either or” approach or zero-sum games. In mediation, parties creates and evaluates several possible options – which could be their solutions and evaluates them. And, finally they may agree to settle the dispute on a mutually agreed terms.
Mediation provides an opportunity to reformulate relationships in the interests of all stakeholders.
Where mediation fails, parties still have options for conciliation, arbitration and court litigation.
There could be other scenario calling for mediation.
- Say, businesses / corporates do negotiations. And when negotiations have reached an impasse, but both sides agree that they need help resolving the dispute. In this scenario a neutral mediator is engaged to help resolve the disputes. Rather than acting as a judge or arbitrator who decides who “wins” or “loses,” a third-party mediator in such mediation assists parties in reaching an agreement.
- Also, when talks between negotiators turns into a dispute, they often develop negative opinions about each other. A negotiator might think, if only the other side was bargaining in good faith, we would have resolved this issue, probably long ago. Such views of parties sows seeds of skepticism and every proposal of other party gets biased with skepticism, which prevents them from reaching settlement. Your mediator can help you overcome this barrier.
Consider what the Chief Justice of India, N. V. Ramana has to say about mediation:
- “Reasons for conflicts are many. Misunderstandings, ego issues, trust and greed can lead to conflicts. Ultimately, small differences of opinion can lead to a major conflict. And even major conflicts can be resolved with some effort in understanding one other,” the CJI said. “My advice, after remaining in the legal profession for over 40 years, is that you must keep the option of knocking on the doors of a court as a last resort. Use this last resort only after exploring the option of ADR- arbitration, mediation and conciliation. Arbitration and mediation are efforts at restoring a relationship,” Justice Ramana said. See here.
- Mahabharata teaches us significance of mediation, conciliation: CJI Ramana to business community Read here and here.
We assist you resolve dispute / impasse – by acting as Advocate in Mediation.