Out of all the existing Dispute Resolution Mechanisms, mediation provides the holistic approach. Mediation is need of the hour in India because of India’s human population and pending cases in Courts. So, in this blog we are going to see what all the upcoming trends in mediation which can be incorporated into the Mediation Practice.
First let’s see in which methods we can take mediation into people’s life. The reality of mediation is people and law students are unaware about the working mechanism of mediation. So, here are few methods which will take mediation to people.
i. Enforcing through contracts: Every business is carried on through contract. Contract is an agreement which is enforceable by law. Every contract has “dispute resolution” clause and “governing law” clause. So, in Dispute Resolution Clause, the parties can include “if any dispute arising out of the contract, it will be referred to mediation. If the dispute is not resolved through mediation, then it will be resolved by the Courts of that jurisdiction”.
Through this way one can implement mediation as a method of resolving dispute in business contracts. Here, a basic question of law arises because Mediation itself is a method to solve the dispute without forcing the parties. If asking the parties to mandatorily go on mediation, will it be resulting to the act of coercion? Will that be violating Article 21 of the Constitution? The Answer is No. Why because, any agreement which is framed will become contract only if both the parties agree to the terms and conditions of the contract and when signed by both the parties. So, if either of the parties disagrees to the condition then it will not become a contract. Hence, enforcing mediation in contracts is a tool to take up more commercial mediation.
ii. Conducting Workshops and Seminars in Law Schools: Law students are the torch bearers of Mediation. If we ask a group of first year law students what their career options will be? Half the students want to take up Litigation and half the student will opt for corporate. It will be very few who will choose ADR. This is because of lack of awareness about ADR. We as a Mediation Professional can conduct seminars and workshops in Law School making the students to participate by giving mock mediation problem and observe their ability on the process. Conducting Mediation Competition among law schools, this will inculcate the mediator among the law students. Encouraging to take internships. As internships forms an integral part of Law school. Attracting students to take mediation internships and giving credits give them opportunity to observe how an actual mediation session works and they will get to know the role of mediators. So, taking mediation to the law school is the first and
foremost step to attract more Mediators.
iii. Explain the benefits: Make sure the parties understand the benefits of mediation, such as the potential for a quicker, less expensive and less adversarial resolution. Emphasise that mediation is a collaborative process that allows the parties to work together to find a mutually acceptable solution. This propaganda can be achieved through word of mouth only then people believe that this is an effective process. If success rates are achieved, then definitely it will be a big hit.
iv. When Mediation Bill becomes Act: If mediation Bill becomes Act. It will be a game changer in Judicial System. It gives a clear cut way for mediation process, role of mediators and timelines to close the mediation process. Parliament introduced a Bill in this regard in 2021. It is currently given for recommendations to the standing committees. If passed, it will help reduce the burden on courts due to the pendency of cases.
In the next process, we are going to see what are all the new innovations which can be brought in to ease the mediation process and how can we make the process more efficient.
I. Online Mediation: Post the COVID-19 pandemic, online mediation became need of the hour. It accelerated the use of online mediation, which allows parties to participate in mediation sessions from remote locations. Online mediation can be more convenient and cost effective than in person mediation and can also reduce barriers to participation for individuals with
mobility or transportation issues.
II. Collaborative Law: Collaborative law is a process in which parties work together with their lawyers and other professionals to resolve disputes outside the Court. Collaborative law can be less adversarial and more collaborative than traditional litigation and can often result in more creative solutions.
III. Environmental Mediation: Environmental mediation is an emerging field that seeks to help parties to resolve dispute related to climate change. Climate change and pollution is one of the serious issues of the nation which has evidential traces that it is leading to many lung diseases. This mediation can help parties find solutions that are sustainable and preserve the environment for future generations. Generally, Public Interest Litigation is filed against the state for such issues. Here, if environmental mediation succeeds, public can bring any public issue before the desk to access quick justice. It gives hope that Mediation can also resolve and give effective solution to the disputes which are not commercial in nature.
IV. Mediation in the workplace: Many companies are recognizing the value of mediation in resolving workplace disputes, such as harassment or discrimination claims. It will give space for both the parties about their contention and thoughts. This can sooth the relationship between the parties and get back to work quickly without ending the relationship. Mediation must be one of the methods to resolve the dispute in Companies Internal Policy.
V. Co- Mediation: Co- mediation involves having two or more mediators working together to facilitate the mediation process. This approach can be particularly effective when dealing with complex or emotionally charged disputes, and can provide additional perspectives and support for the parties. On the other hand, it supports the mediator to cope with the timings of mediation and will help in sharing the workload among mediators. Gives multi-dimensional perspective to the problem which helps in problem solving. The era we live in is currently advanced in technology. It is always important to use the technology
The following are some of the instruments which can be used in Mediation to improve the process.
I. Technology – Assisted Mediation: With the increasing use of technology in all aspects of our lives, technology- assisted mediation is gaining popularity. This involves using technology tools such as video conferencing, online platforms, and software applications to facilitate the mediation process. With this ongoing Artificial Intelligence assisted tools mediators can make use of it in order to finish the work more quickly and efficiently. This process supports the parties in way that this method is time consuming and save the time of the parties too.
II. Neuroscience and Mediation: Research in neuroscience has shown that certain techniques can help reduce negative emotions and promote positive ones. As a mediator one must have an upper hand in psychology to study the minds of the parties. If the mediator finds that either of the party is not willing to settle the dispute through mediation, then the mediator must drop the case for saving the time.
III. Narrative Mediation: Narrative Mediation focuses on the stories that parties tell themselves and each other about their dispute. Mediators can use this approach to help parties shift their perspective and see the dispute from a different angel. This approach will help the mediators to take this process with an ease. This method will make the parties to find their own way for
IV. Using a neutral third party as mediator: For professionals who are practicing mediation must be well aware of the fact that Mediator who will be taking forward the mediation must be a neutral third party. This rule was mandated in order to achieve results which are impartial. If two mediators are involved in the process, then both the mediators must be neutral third party.
V. Restorative Justice: Restorative Justice is a philosophy and approach to justice that focuses on repairing the harm caused by a crime or conflict rather than punishing the wrongdoer. Mediators can use this approach to help parties in a dispute find ways to repair the harm done and move forward in a positive way. Restorative justice instils hope to the affected party
whose justice got deprived.
From this article you can get a broad understanding on how we can take mediation forward and how this mechanism can be used by people and the future of mediation. Hope you had a good read on “Upcoming trends in Mediation”.