The role of mediation and a mediator is paramount in the adversarial system of litigation, explores Man Mohan Sharma
Charles Dickens’ novel, Bleak House is based upon the story of two brothers fighting over a house. At the end of the day, the siblings sat down together with better sense to give peace a chance. When the accounts were reconciled, the brothers discovered to their horror that the cost of litigation suffered by the duo matched the value of the house. Of course, they had taken only the monetary cost into consideration, not the agony of the trial. Precious years of their lives went down the drain. The perennial litigation had deprived them of many countless bliss of life. Many good things in life bypassed them. The litigation eclipsed their lives.
What would have happened had any of them won the case? The logical corollary is that other would have lost. However, things would not have settled then and there. It could have been only a battle won by one of the siblings. It would not have heralded the end of the war. The loser would have challenged the verdict in the higher court, opening up another round of litigation. This would have continued till the court of last resort.
Whoever wins in the end is immaterial. Beyond the fact of who wins and who loses, there is certainly one gain to both and it is a basketful of acrimony, bitterness and hatred, which will tend to grow itself. Whether the winner would be able to pass on the fruits of his victory to his next generation is not the question but one thing is certain that both would have passed down the acrimony, bitterness and hatred to their progeny.
These are the unavoidable and undesirable side-effects of litigation. Of course, litigation sometimes becomes necessary and some prefer to term it as ‘necessary evil’, the definition itself is pregnant with meaning.
The moot question is, “For whom the bells toll?” Do they toll for the poor man in the street? Do they toll for the child, who is forced to work? Do they toll for the peace and harmony in the society? Do they toll for brotherhood in the people?
Let us seek the answers. Legal paraphernalia is means to an end, not an end in itself. Its objective is to ensure that there should be less friction and more peace in the society.
However, when there is litigation explosion and the delay defeats the justice, there is a need to do some introspection. Litigation explosion generates delays and this creates a vicious circle. Law delays give an opportunity to vested interests to exploit the system and the legal system is loaded with frivolous and vexatious litigation. This kick-starts a chain reaction, which leads to further delays. In the long run, people tend to move away from the legal system and resort to extra-legal system. This parallel system ultimately leads to litigation exclusion. Rule of law becomes the first casualty. This creates a state of anarchy – annihilation of the rule of law.
Adversarial litigation system creates a ‘Win-Lose’ situation. However, if one goes by the words of Voltaire, a famous French writer and philosopher, it is not even so. Voltaire has said, “I was never ruined but twice, once when I lost a lawsuit and once when I gained one.” Can’t we have a system which creates a ‘Win-Win’ situation for both the parties? The answer is ‘Yes’.
The fact of the matter is that we become so much obsessed with the existing system that we tend to overlook the available options. There is a need to change this outlook but to have ‘possibility thinking’.
Everyone wants peace. Any departure from such thinking is only an exception, not a rule. A conflict arises only when there are different thoughts or aspirations. Once a conflict arises, the general tendency of parties at conflict is to seek resolution. The conflict itself generates an auto-suggestion for resolution through an independent and neutral third party. It is nothing but reference of conflict to mediation. Thus, mediation is a search for a onsensual solution of a dispute through negotiations with the help of a third party facilitator.
The definition of mediation is as simple as the word ‘simple’ itself. The hallmark of all the great things of people is that they are down to earth, simple and plain. Mediation is no exception to the rule. A mediator is a neutral third person. He only helps the parties to explore themselves. The solutions are not forced upon. It is the parties to the conflict, who evolve a solution from within. The questions are of their own, the probable solutions are of their own and the ultimate answer is also of their own. If the democracy is ‘the government of the people, for the people and by the people’, then there is no stopping why the same cannot be said of the mediation.
Mediation is in fact, a synthesis, a churning process. It develops the psyche of hearing the other person’s point of view, suggesting your own, do the evaluation and the solution emerges from within. As it is the very own baby of the parties to the conflict, they love and nurture it as a self owned responsibility. It is not for them ‘dictate’ from a third person, who they are bound to follow as they say, “Like it or lump it.” A mediator is not an adjudicator. He is only a catalyst. A catalyst, as we have learnt in chemistry, participates in a reaction only to speed it up and ultimately leave in the same form as it had entered. The mediation only facilitates the settlement. He explores the parties to evolve the solution from within. A mediator does not look backward. The focus is not on the past events or faultfinding. If we compare mediation and adjudication, then mediation is like the windscreen of a car and adjudication is like the rear view mirror. The windscreen is large but the rear view mirror is very small. Thus, mediation has a compass, which is very large. Its agenda is only to promote the prospects of a settlement by developing options.
With so many good features, it is certain that mediation is here to stay.
Director, National Mediation Board Washington, USA Dennis is a union leader who has been named the chief spokesperson for a coalition of thirteen unions working together to negotiate a collective bargaining agreement with a railroad. In addition to the usual complexity involved in collective bargaining (managing his bargaining committee, communicating with the carrier, keeping track of proposals and counter-proposals, etc.) he has the added difficulty of managing communication and consensus among the union coalition members. In addition to the complexity generated by the number of unions and all of their competing interests, the coalition representatives are spread over a wide geographic area, and have work schedules that make synchronous meetings difficult.
This combination of complexity, multiple parties, geographic challenges, and schedule conflicts is, in microcosm, the reason why the National Mediation Board (NMB) more than a decade ago established a policy of aggressively applying Information And Communication Technology (ICT) to its dispute resolution work in the areas of Representation, Mediation, Arbitration, and Alternative Dispute Resolution (ADR). The application of technology to dispute resolution is generally known as Online Dispute Resolution (ODR), even though some of the technology that is used in dispute resolution is not, technically “online.” At the NMB, ODR technology has been used to do many things, including:
Among ODR professionals around the world, the National Mediation Board is acknowledged as a leader in governmentbased ODR.
The National Mediation Board has been in an advantageous position to develop its expertise in ODR technology. The parties who regularly work with the NMB bring complex issues, dealt with over extended periods of time, by individuals who are separated geographically and scattered through multiple time zones.
The NMB is the U. S. Federal agency charged with administering the Railway Labour Act (RLA), which governs labour relations in the airline and railroad industries in the United States. Under the RLA, the NMB has both statutory authority and nonstatutory, mission related goals regarding the preservation of harmonious relations between carriers and unions in the rail and air industries. The railroad coalition case outlined above touches both the statutory obligations of the NMB under its Mediation program and the non-statutory goals pursued through its ADR programs.
Mediation matters involve negotiation of collective bargaining agreements once a union has been certified to represent workers. Mediation in the industries covered by the RLA is mandatory, not voluntary, and until the parties are released from mediation, the status quo must be maintained by both parties. During this period of “status quo,” NMB mediators are in control of the negotiations and can establish the time and place of meetings, influence who can be at the bargaining table, and enforce mediation meetings until the Board determines that all reasonable measures to achieve a voluntary agreement have been expended. While the NMB mediator controls the case, it is still up to the parties to bargain with each other and reach a consensual agreement on the terms of the collective bargaining agreement.
In the coalition example, the parties applied for mediation under the RLA and the NMB assigned a mediator to formally handle their case. The mediator has responsibility for calling and conducting meetings and for working with the parties as they try to reach agreement on a contract. The mediator would not, in most circumstances, be involved in the internal discussions among the coalition members.
The coalition situation involves the NMB ADR program because the unions in the coalition expressed a desire for assistance with the communication difficulties arising from the large number of coalition members, and the environment in which they were working. The NMB has, as a policy, extended the offer of ODR assistance to both parties when they are engaged in negotiations and to individual parties on either the carrier or union side when they seek assistance in preparing for negotiations. The NMB’s policy has been that any assistance given to the parties that improves communication, clarity of position, and preparation to bargain contributes to creating labour or management harmony in the industries served by the NMB.
In this coalition case, the NMB is assisting the union coalition as they prepare for bargaining sessions by making available both a secure online workspace with full capacity to share and store documents, and a new online communications tool that is particularly suited to the collective bargaining committee setting: ShapeStuff. Using these tools, Dennis, the coalition leader, can share information, poll his coalition members to ascertain support for bargaining positions, develop proposals, examine and discuss counter-proposals, and generally manage the communication and preparation process so that all members of the coalition are fully prepared and supportive of coalition positions as they go into negotiation sessions with the carrier and the mediator.
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