Abraham Lincoln once said- “Discourage litigation, persuade your neighbors to compromise whenever you can, Point out to them how the normal winner is often a loser in fees, expenses, cost and time”
This quote clearly describes the significance of Alternative Dispute Resolution even in the historical times. Mediation is not a new concept; it has been used as a method of alternative dispute redresser centuries before the British came to India. Back then the informal panchayat used to resolve the disputes between the parties where the village elderly or the Mahajans were appointed as the neutral party. Mediation was quite famous among the businessmen in pre-British India. Mediation gained recognition as a formal and legalized ADR mechanism after the onset of the British.
Mediation gained popularity as an ADR mechanism with the re-introduction of Lok Adalat in the Indian Judicial system. With the Legal Service Authority Act enacted in 1987, a statutory status to Lok Adalat was given for the first time in India and the decisions of Lok Adalat were awarded the same status as that of civil court.
In modern times Mediation is seen as a process that dignifies, upholds, and uplifts humanity, a restorative process which is facilitative in nature. It is considered to be intuitive, insightful and organic. To uphold all these values the process of Mediation has some basic ethics to follow. In this article we will be discussing the ethics of mediation and the role of mediator simultaneously.
Ethics of Mediation:
Mediation is a process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences. This process has few laws and ethics related to it. Law of Mediation is developing with the passing time but its ethics are still at its initial stages. It seems as role of ethic has been neglected in Mediation.
But what is the role of ethics in mediation? This question might arise. So, here is the answer;
Ethics is a process of determining what one considers right and wrong actions. This may sound easy but it is really complicated in real, because the state of being right or wrong depends on perspective of an individual which differs with culture, moral climate and individuals’ circumstances. Ethics in mediation plays a very crucial role. Mediation is a flexible process and hence it should be party centric i.e. the parties’ welfare and benefit should be the utmost priority and in order to ensure that the ethics of mediation should be followed. Also the essence of mediation is preserved only by adapting to an ethical mediation process.
Now the question which arises is what are the ethics of mediation?
Ethics of mediation may vary with time, place and culture, but there is a golden rule which should always be kept in mind – “do unto others as you would have them do unto you”.
A brief article is unable to capture all the nuances of ethical principles, yet an attempt has been made to list down the basic principles of mediation ethics.
- Conflict of Interest: Mediators must avoid serving in the cases where they have a direct personal, professional, or financial interest in the outcome of the dispute. This duty becomes complicated when there is an indirect interest, because then the question which arises is how indirect is the interest? Is it simply a matter of disclosure or does it preclude serving in the case? A mediator shall disclose all actual and potential conflicts of interest reasonably known to the mediator. After disclosure, the mediator shall decline to mediate unless all parties choose to retain the mediator. In some cases, however, the mediator should decline the case if the conflict is so severe that even waiver does not cure it, or the appearance of impropriety is so strong that it cannot be resolved by full disclosure. This principle is really important to maintain the integrity of mediation.
- Competence/Professional role boundaries: It is the duty of a mediator to know the limits of their professional role. This duty binds the mediator to avoid taking assignments which they are not equipped to. Moreover, a mediator should communicate with the parties about one’s background and experience. Mediators who are lawyers, therapists, engineers or whatsoever, should leave any of such needs of parties to other experts in that field. Even though a mediator may be competent to provide those services too, but as mediator it may compromise the effectiveness when one wears two hats.
- Impartiality: Engagement and communication with the parties in dispute is the basis of the mediation process. In few cases, the Mediator may develop feelings for one party or may get emotionally attach any party but it is the duty of the mediator that even with the awareness of any such feeling the process should be completely just and evenly-handed. Being impartial is one of the most significant ethics of mediation.
- Voluntariness: Although some parties come to mediation because they are required to do so, they must have the right to withdraw from the mediation process if according to their opinion the process is not moving in the direction of agreement which they chose to be the alternative. As the basic motivation behind referring the dispute to the mediation table is to reach an agreement with mutual consent and willingness for benefits of the parties in dispute.
- Confidentiality: There are two aspects of confidentiality in mediation process. One is the confidentiality of the process i.e. the process should be private and the other is the confidentiality of information provided by the parties to the mediator during the private sessions. And it is the duty of the mediator to uphold this value.
- Self-determination: Party autonomy is one of the guiding principle in mediation. A mediator has a duty of facilitating a communication between the parties in dispute. In no case the mediator shall provide a resolution to the dispute even when asked by parties. The parties should arrive at a decision on their own. Mediators should also prevent one party from dominating the other parties in the mediation in a manner that prevents them from being able to make their own decisions.
Many more ethics can be added to this list, and this list will be unending. Therefore, It can be derived that ethics are of the utmost importance in a process of mediation in order to uphold its essence and sanctity.
Role of Mediator
As is the case, mediation is a process of hassle free settlement, without the added costs of litigation and the lengthy court proceedings with their enormous delays. The role of the mediator is to facilitate communications between parties and let them reach a timely resolution by themselves and to make this process fair and cost-effective. The mediator is no judge or adjudicator and therefore cannot take any stance in the proceedings and he should be a neutral facilitator. Being that, he has to understand the underlying issues and let the parties reach resolution. There are very strong principles at play which govern the role of mediator. The mediator should never impose any solution onto the parties. The solution should only be reached by the parties and if that does not happen, the mediator has no right to give legal advice to the parties involved. The mediator can raise and identify issues and let the parties explore more options. The mediator has to set up the first meeting by contacting either the parties or their counsels. The parties are assisted by their counsels or any individual they designate during or before the mediation to represent them. The mediator has to be a party to whom both the mediating parties concede in, to facilitate the process. By reassuring the parties that their secrets are not going to be recorded in any court in furtherance of the mediation process, the mediator can make the process quite efficient and beneficial to the parties.
Therefore, a mediator acts as a neutral facilitator and keeps the process party-centered.
It is therefore seen that mediation as a practice follows the principle and ethics of self-determination, impartiality, confidentiality, honesty etc. Mediator is the person or the neutral party who has the duty to uphold these ethics and serve as a neutral facilitator of the communication between the parties in dispute. Any work or assignment undertaken by the mediator beyond one’s competence is violative of the ethics. It should be kept in mind that mediation as a method of Alternative Dispute Resolution should be flexible, private and should be regulated with care to get an efficient mechanism of solving disputes
AUTHOR – SAMAKSHI PANDEY