The realm of mediation has expanded dramatically. Since then, mediation has
evolved from an alternative approach to conflict resolution for community
activists to a process that has become part of our everyday landscape.
Mediation-Skills and Techniques is an essential and comprehensive addition to
the professional library of all mediators. The paper adopts an interdisciplinary
approach to mediation, integrating knowledge and expertise from law, psychology,
It provides a time-tested, flexible model for effective mediation
in diverse environments and situations. It also provides mediators and other
professionals who use mediation such as lawyers, therapists, and personnel
managers with comprehensive, step-by-step instruction in effective dispute
resolution strategies and a clear overview of mediation and conflict, mediation
process, the skills and approaches used by professional mediators.
A fair and efficient process for resolving dispute is crucial in any civilized
society for the purpose of securing and defending rights of its citizens. As it
is written that the "Court brings dispute to an end and ensures that people can
enforce their rights. But in most parts of the world, ever mounting expenses of
litigation, congested court schedule, delay in disposal of cases have put
question on the efficiency of the system.
This has been reflected in judgment of
the Supreme Court of India, where the court observes that, "interminable,
time-consuming, complex and expensive court procedures impelled jurist to search
for an alternative forum, less formal, more effective and speedy for resolution
of disputes avoiding procedural claptrap and this led them to…"1 In fact, the
philosophical basis of alternative forum that means alternative dispute
resolution (ADR) is drawn from Confucianism. "The philosophy of Confucianism
was, in essence, one of harmony, of peace and compromise resulting in a win-win
The time demands that our legal system should be developed to
ensure greater social justice in the context of modern social science.
Alternative dispute resolution is a promising road toward improvement as it
combines both old and new dispute resolution processes. Amidst the ancient
traditions (notably aboriginal) of a surprisingly large number of cultures,
there is a way of thinking about conflict and dispute that has been recaptured
in the modern age.
Dispute is a dynamic process. Dispute means a fact when it is alleged by one
party and denied by other and both with some show of reasons. It has a beginning
and has to pass through several stages before it ends. Conflict or dispute is a
natural and inevitable part of all human social relationships. Conflict occurs
at all levels of society- from interpersonal, family, tribes to national and
international levels. The existence of conflict and dispute presupposes the
existence of dispute resolution process too. Generally, dispute resolution can
initiate in two ways such as:
- By peaceful means
- By use of force.
The first implies using alternative ways such as dialogue, negotiation,
mediation or third party intervention instead of using force or aggressive
measures to resolve a dispute. The second implies that a powerful third party
uses force, not necessarily physical force, but aggressive persuasion to create
social or structural pressure and influence on the parties to resolve existing
disputes. The third party might have some interest, but not on the dispute
The third party works as a pressure factor and may or may not be
neutral. However, it is not uncommon for disputes resolved in this way to
re-emerge in the future. In general, traditional dispute resolution mechanism
implies the existing process of resolving dispute in our society. There are two
diverse processes of dispute resolution.3
- Legal Process
Legal process means that litigation takes places in the court of law. As it was
said, usually it refers to taking resort to legal authority to obtain a
favourable verdict but this system also gives them a feeling of victory over the
other. It is a win-lose game. This process is very time consuming and a lengthy
one to follow and it requires a lot of money and often holds disputes, leaves
permanent scars on the mind of the losing party rather than resolving the
problem. It may end in making the disputes endemic and long lasting. This
procedure is very complex and cumbersome. It was held that legal process is a
win-lose situation and sometimes stimulates further conflict. When the losing
party gets chance, they look for revenge. Lastly it has to depend on the lawyers
from beginning to end of the system.
- Community initiative
The community sometimes takes a leading role in resolving local disputes.
Now-a-days mediation is the most grooming process applied all over the world.
This may be defined as a process by which disputing parties voluntarily engage
the assistance of a neutral mediator, who has no authority to make all decisions
for them, but who uses certain skills to help them to resolve their dispute by
negotiating agreement without adjudication.
Mediation serves various purposes,
including providing the opportunity for parties to define and clarify issues,
understand different perspectives, indentifying interests, explore and assess
possible solution, and reach mutually satisfactory agreement, when desired.
Direction Of Mediation ProcessUnderstanding
The mediator empowers the individual parties to take responsibility for
understanding their conflict and resolving the dispute. The mediators enters the
parties' ongoing relationship with the intent of altering the interpersonal
dynamics of conflict relationship by helping them use effective communication
skills in order to help facilitate the resolution of the dispute. Mediator
outlines the issues important to all parties/ advocate, using neutral words and
discuss specific issues one by one in more detail, if necessary. Basically
mediator helps the conflicting parties to have an interactive discussion, when
For an effective mediation on behalf of clients whose needs and goals can
carefully be learned through client-centred interview and negotiation.
Negotiation is an action stage for representation of a client and in this stage
the mediator takes an active part. He/she must avoid the attorney-clients
attitude. The negotiator has to act simultaneously as a detached representative
of a principal and personally involved as participant.
Clients may be sensitive
about his/her past events or a particular goal and worry that the lawyer will
find the disclosed matter inappropriate or damaging to the case. Such feelings
motivate the clients to be selective in revealing facts and cautious about
articulating real needs. The negotiator may use many of the analytical, verbal,
and interpersonal skills in negotiation, active listening and report building
The basic principle of other skills, such as sequencing of topic and
planning, can be used in negotiation. Here a mediator is to lead parties'
negotiations when parties are ready, preferably after reaching a new
understanding. Mediator is to assist parties to explore option for settling each
Once a settlement is reached through meditation the mediator brings the parties
together to confirm all the terms of compromise. An important issue concerning
the matter is how the settlement terms should be recorded. Fundamental principle
of this process is not to blame any one or not to pronounce any one innocent or
guilty; but to write a win/win agreement that is positive with respect to each
party's rights and responsibilities regarding future conduct. There are five
basic elements of an agreement to be considered. Those are-
Basic Principles Of Mediation Process
- Who are the parties
- What are the conditions to be agreed upon to maintain a balance
- Where should the exchange take place
- When (exact date and time)
- In what form
The mediator respects the "self-determination"4 of all the participants. He/she
conducts a process where party self-determination is paramount. The mediator may
provide information about the process, raise issues and help the parties explore
options. The primary role of the mediator is to facilitate a voluntary
resolution of a dispute. The principle mediator must assist the artists and the
participants to engage in self-determined process.Integrity
The mediator is to act with integrity with respect to all aspects of the
mediation process and towards all users of the process. The word integrity
includes impartiality, competence, confidentiality, transparency, fairness,
voluntariness, continuing duty to reveal, continuing duty to discuss,
disclosers, and durable result. If at any time the mediator is unable to conduct
the process in an impartial manner, the mediator is obligated to withdraw.
Protecting Negotiation Relationship & Options to the Maximum Extent Possible
The mediator manages the process to protect the negotiating relationships of all
who participate and their unfettered opportunity to fully explore negotiation
options. In a word, protect relationships and negotiation options.Doing No Harm or Doing the Least Harm When Harm Cannot be Avoided
The mediator is to be constantly vigilant and aware that his or her own
behaviour may not be harmful to the participants and/or to the process. The
mediator will cause no harm or will cause the least possible harm when he is
faced with two conflicting principles or ethical standards. A mediator should
have the belief to conduct himself or herself in a manner that he/she will cause
the least possible harm. He has to act impartially, to provide a balanced
process, and give all real opportunity to get information.Advancing the Profession at All Time
The mediator is to be consistently cautious and aware of his or her own
behaviour; and it could impact the profession of mediation, and acts to promote
the field and himself/herself as a representative of the profession in a
positive way. He is to act ethically and with integrity and should follow the
above essential principles of practice, provide pro bono service when needed
intention to learning.Techniques To MediationCommunication to Create Learning
The mediator should deliver a welcome speech before the disputants and thank
them for being present in such a session and introduce the disputants to each
other and ask them about the names by which they prefer themselves to be called.
He/she is to brief them about his role and strategies through an inaugural
speech. He has to explain his impartial stance as a mediator before the
After that he has to describe about logistics support and comfort
such as, length of time available for mediation, directions to restroom, tea,
water etc. The most important thing is that he/she will provide a brief preview
of the process of mediation to the disputants. He needs to clarify to them that
he/she is not a judge and cannot determine the fact. He/she has no power to
decide who is right or who is wrong, who is guilty or who is innocent. Finally
he/she has to explain the process of ground rules and obtain agreements to use
them.Ground rules give the parties an idea of what to expect. Some sample ground
rules are as follows:
Helping the Parties to Tell Their Stories
- Everyone will have an opportunity to speak
- One person is allowed to talk at a time.
- No one should be interrupted while talking.
- Everyone should respect each other.
- The participants should switch off their cell phones and beepers.
The mediator can help the parties to disclose their history by being empathetic
and attentive. He/she will acknowledge what is shared, ask questions which
demonstrate his/her interest and attention, paraphrase or summarize what he/she
hears. Objective of the second step is to develop an atmosphere of trust and
confidence between the parties. It helps the parties tell and listen to the
facts from each other's perspective. It also helps them explain and clarify
their own perceptions, communicate and work together and also identify the
interests of the parties.
Learning to Create New Understanding
When the party learns about how the other sees the situation, each party begins
to have a new understanding of the situation. This means that each party must
let go of some of his/her past thoughts and might require a part to begin to
forgive (depend on the conflict).
New Understanding to Create New Motivation
The new understanding is created to change the parties' motivation as to what
they are willing to do to about needs and interests of the parties. This step
simply helps the parties understand each other's perspective; not necessarily to
agree. The parties should speak to each other rather than to the mediator; and
encourage the parties to ask clarifying question to each other, particularly
about intention, impact, and interest.
It is to simply encourage the parties to
tell each other what they heard, and to check for understanding. Reflective
listening is a very useful technique in this phase. At this stage the mediator
is to ask the parties what they think their major problems or issues are, and
whether they want those to be solved. If they are not sure, then the mediator
will suggest issues.
New Motivation to Create the Ability of Parties to Negotiate at a New Level
The Parties begin to relate to the needs and wants of the parties causing the
parties to be able to do more and/or other things to meet the needs and wants of
the other parties. We now have parties who are willing to change some/all.
Ability to Negotiate at a New Level to Create Agreements
Using these stages the disputant is to establish an agreement for future conduct
and use the interest based process to brainstorm, evaluate and choose ideas
about how to improve the relationship. Here the mediator's task is to create an
environment in which the disputants can invent and evaluate possible solutions.
Before arriving at the solution, the mediator should invite the parties to
evaluate the options from the observer's perspective.
After the parties have
brainstormed options, they can reduce the list to the most viable options. The
process is successful if they understand each option better and identifies which
options are most beneficial. The goal is to stimulate dialogue and creativity
and to make sure that all options and interests have been thoroughly explored
and the agreement reflects what the parties desire, need and want.
Duties Of Mediator
The mediator should be a neutral person whose conducts must be like an unbiased
third party. He/she acts as a facilitator in the mediation. "The mediator's
role, responsibilities, duty and the mediation process may vary significantly,
depending on the types of disputes and mediator's approach because of the
extensive variety of different ways in which the mediation process can take
The mediation process will depend on the mediator. But the mediation is
a process that does not necessarily require subject matter expertise. No
particular advanced academic degree or technical or professional experience is a
prerequisite for competence as a mediator. Core mediation skills include
communication clearly, listening effectively, facilitate communication among all
participants, promoting exploration of mutually acceptable settlement options
and conducting oneself in a neutral manner.
They come from all walks of life.
Mediators are professors, sociologists, lawyers, teachers, real estate brokers, labour managers, labour negotiator therapists and psychologists- to name a few.
Each of these professions can provide the mediator skill to facilitate parties'
communication.6 Such as:
Ethical Strategies Of A Mediator
A mediator must make reasonable efforts to advance the mediation in time.
- Procedural Fairness:
A mediator must conduct the mediation proceedings in a procedurally fair
- Explanation of process:
Before the outset of the mediation the mediator must provide all
participants with general explanation of the nature of mediation process,
procedures and role of mediator, parties and other participants.
A mediator must be truthful and accurate in marketing his or her mediation
- Compliance with law:
A mediator must comply with any applicable requirements concerning
compensation established by statute or the court.
- Disclosure of and compliance with compensation term: Before commencing
the mediation, the mediator must disclose to the parties in written form
fees, costs or charges to be paid to the mediator by the parties.
- Contingent fees:
The amount or nature of mediator's fees must not be made contingent on the
outcome of the mediation.
- Gifts and favour:
A mediator must not at any time solicit or accept from or
give to any participant or affiliate of a participant any gift, bequest or favour that might reasonably raise a question concerning the mediator's
- Mediator needs to be responsive to the parties:
Let them know that he wants to help them resolve their conflict.
Whatever the positive impact of mediation is but all of it would depend on the
ethical or moral standard or behaviour of the mediator's concern for doing so. A
mediator is essentially required to abide by the following norms such as:
Neutrality and Impartiality
A mediator shall avoid conduct that gives the appearance of partiality towards
one of the parties. The quality of mediation process is enhanced when the
parties have confidence in the impartiality of the mediator.
Voluntary & Uncoerced A mediator shall conduct a mediation based on the
principle of party self- determination. Self-determination is the act of coming
to voluntary, uncoerced decision in which each party makes free and informed
choice as to process and outcome.
Duty to Disclose Actual & Perceived Conflict of Interest
- agreement must be voluntary
- each participant has right to decide own participation and
- refrain from coercion.
A mediator shall avoid a conflict of interest or the appearance of a conflict of
interest during and after mediation and shall disclose all actual and potential
conflict reasonably known and could reasonably be seen as raising a question
about impartiality. After disclosure, if all parties agree, the mediator may
proceed with the mediation. Mediator discloses all personal, professional and
A mediator shall maintain confidentiality of all information, unless otherwise
agreed to or required by applicable law. A mediator should not communicate about
how the parties acted in the mediation.
A mediator shall mediate only when the mediator has the necessary qualification
to satisfy the reasonable expectation of the parties.
- Truthful background representations
- Inform the court of public discipline felony charge
- Criminal conviction
- Ability to use mediation process and skills
- No impediment to mediate effectively
- Maintain skills
A mediator shall conduct mediation in accordance with these standards in a
manner that promotes diligence, timeliness, safety, presence of the appropriate
participant, procedural fairness, party competence and mutual respect among all
It has been stated earlier that mediation is the most popular method of
alternative dispute resolution and it is an established fact that for ensuring a
meaningful result of mediation, the mediator should follow some strategies. Such
as, he should not talk too much, must not interrupt the speaker and act a bit
uncertain to encourage further disclosure.
The mediator will make them think
about the past when they had a good relationship and induce them to talk
positively about each other. The mediator should be aware that there are two
parts of every answer/message- the content (legal part) and the feeling
(effective part). He/she should not ignore the feelings. The mediator should
keep in mind some important things.
The mediator should not ignore the feelings as ignoring the feelings can prevent
dispute from being resolved. It may be the biggest issue in mediation.
If the mediator gets negative reaction to questions regarding feeling, he can
ask questions regarding thinking.
He/she should learn to feel comfortable with strong emotions. In fact, it has
been suggested that an important part of becoming a mediator is to become
sensitized to the feelings of others as well as self.
He/she has to clarify the situation.
The mediator needs to help parties to understand their own interest & risk.
He/she should explore all possibilities to conform a satisfactory agreement.
Finally, it is recommended that the mediator should not make a judgment as to
the truth or veracity of anything the parties say. He or she must listen
objectively without presupposing who is telling the truth. The mediator must
take notes and make balanced eye contact throughout the session.
He has to
organize information after taking it down. He/she should be patient and avoid
getting ahead of parties and also provide a safe environment for the
participants. He/she should ascertain the needs and interests of the
participants and motivate the participants' behaviour accordingly. He/she
requires developing his/her personal style.
- Guru Nanak Foundation v. M/s Rattan Singh & Sons, AIR 1981 SC 2075,
- Rahman, Dr. Mizanur. "Alternative Dispute Resolution." Human Rights Summer
School Manual. 2007, p. 148.
- Study Circle Discussion Guide on Alternative Dispute Resolution (ADR). Study
Circle, August, 2003
- According to Oxford Dictionary the word self-determination means the
right of a country or region and its people to be independent and choose
their own government and political system. Oxford Advanced Learner's
Dictionary. 8th edition. Oxford University Press, 2010, p .1387
- Gabriel Hallevy. Is ADR Philosophy Relevant to Criminal Justice Plea
Bargaining as mediation Process between the Accused and the Prosecution.
Available at http:ssrn.com/abstract=1315984. Also see, Leonard Riskin,
Understanding Mediators Orientations Strategies and Techniques: A Grid for
Perplexed, 1 Harv. Negot. L. Rev. 7 (1996).
- Culbert, B. Mary, What's a Lawyer to Do- in Mediation