Nowadays, Alternate Dispute Resolution is becoming more and more popular among the masses due to its easy procedures and effective results. There and many types of alternate dispute resolutions, and mediation is one of them.
To define mediation, it is a negotiation process wherein disputes are amicably resolved by the disputing parties through a neutral third party’s assistance. However, its nature is voluntary and it is usually non- binding on the parties in dispute. This whole process is said to revolve around the disputing parties and this factor makes the process more party-centered. The parties get to make the decision of the final outcome and reach an outcome. The mediator is there just as a facilitator.
FUNCTIONS OF A MEDIATOR
The major function of having a mediator is to basically have someone who takes an active role in order to help reach a consensus and decide on a settlement that is beneficial for both the parties and is inclusive of the participants’ needs. The most important elements required for people to accept the process of mediation are dignity and trust. The next characteristic elements that are crucial in a mediation process are impartiality and neutrality. The mediator is supposed to be completely unbiased at all times during the mediation process, and not take sides. The purpose of the mediator is to serve as a catalyst between the parties. He must ensure that he does not end up giving his opinions on the presiding case. However, he possesses power to give his suggestions and make the parties aware of the consequences that might arise of their actions if they take the case to court.
There are a number of functions that a mediator has to carry out, for example:
- To establish a framework for cooperative decision making,
- To promote constructive communication,
- To provide for appropriate evaluations,
- To empower the parties, and
- To ensure outcome fairness.
These functions clearly highlight that mediation follows a specifically creative and flexible nature and its paves a way to allow direct confidentiality, direct participation, and control by the parties. This further goes on to increase the parties’ self- determination and faith in the ongoing mediation process. Throughout this process, mediator assumes the roles of a neutral third party, and only aims at enhancing better communication and assisting the parties to work out a mutually acceptable resolution.
TYPES OF MEDIATION APPROACH
The mediation approach can be divided three categories on the basis of role playing by the mediator.
- Facilitative or ‘interest-based’ mediation, where the mediator does not direct the parties towards any particular settlement;
- Evaluative mediation, here the mediator makes suggestions as to the likely outcome of the dispute; and
- Rights-based mediation, here the mediator ensures that any mediated agreement reflects statutory rights and legal entitlements.
None of the above prescribed categories are to be followed by the principle and it is on the discretion of the mediator to better match the method with the framework set up by the participants. Even if during the process, in the middle of the session, if the mediator realizes that the approach he started with doesn’t fit anymore, he is free to recognize whichever approach suits the process more and make the necessary shift in orientation through reframing the approach.
ROLES OF THE MEDIATOR
The roles of the mediator are as follows:
- Convener
It is the mediator’s job to contact the other party and conduct the process of the initiation of the introductory meeting.
- Educator
Having full knowledge on the subject of mediation, the mediator educates the disputing parties about the mediation process, suggests any other conflict resolution alternatives that could be adopted to solve the dispute at hand, lays down the issues to be addressed and elaborates on the options and principles that might be taken into consideration for research, states court standards, etc.
- Communication Facilitator
One of the most important duties of a mediator is to facilitate communication among the disputing parties. The mediator seeks to ensure that each party is fully heard in the mediation process.
- Translator
So as to ensure that there is no communication gap and none of the intentions of the parties are misunderstood in any way, the mediator can aid them by rephrasing or reframing communications so that they are better understood and received.
- Questioner and Clarifier
In order to ensure that the parties and the mediator have a full understanding; it is the mediator’s job to probe issues and confirm understandings.
- Process Advisor
Mediator often plays the role of an advisor who can be trusted to give suggestions during the mediation process for making progress in mediation discussions, which may include caucus meetings, consultation with outside legal counsel and consultation with substantive experts.
- Angel of Realities
It is the mediator’s discretion to play devil’s advocate with one or both the parties. This can be done with respect to the practicality of the solutions that are being considered by any of the parties or the extent to which certain options are consistent with participants’ stated goals, interests and positive intentions.
- Catalyst
The mediator mostly acts as a catalyst and can, from time to time, offer options for considerations, stimulate new perspectives and offer reference points for consideration. By doing so, mediator serves as a stimulant for the parties reaching agreement.
- Responsible Detail Person
It is the mediator’s duty to manage and keep track of all necessary information, writes up the parties’ agreement, and may assist the parties to implement their agreement.
Due to this description, the mediator has a very sensitive and difficult job. S/he should respect and encourage self-determination of the parties and preserve their objectivity and impartiality, while at the same time carry out their own role effectively. The key is for the mediator to move the parties through the mediation process in a way that is responsive to the parties’ needs and interests, as opposed to the self-interest of the mediator. If mediator become aware that s/he cannot maintain impartiality then s/he must immediately disclose this to the parties and withdraw from the mediation.
The mediator tries to set an agenda and lays down a road map to be followed for the smooth running of the mediation process. These process decisions end up having a major impact on the way the content of mediation materializes. If the mediator, at any time during the process, feels that the dispute resolution communications are going array, he may encourage the discussion of certain topics so as to set up a common ground. The mediator can also, however keep certain topics off the table if s/he expects a clash of views and positions.
CONCLUSION
It may be argued that mediation is supposed to be flexible and creative; hence mediators should be given wide discretion to achieve the goals of mediation. However, the dilemma is that by leaving it up to the mediators to exercise their discretion, they have to exercise their ethical judgment “constantly, intuitively, and often unconsciously.”
They have to decide what is fair and reasonable, when they should intervene, how far they should intervene, how they should exercise the various dimensions of their power (or refrain from exercising it), and so on.
Like any other profession, the mediator too has four cardinal ethical principles:
“Do no harm,
Do good,
Let the client be self-determining
And ensure fairness and justice.”
Mediator should not press any kind of undue un-ethical influence violating the four ethical principal is amount to coercion, violating the four cardinal ethical principles.