Confidentiality

Mediation is a voluntary party centred confidential and structured negotiation process where a neutral third party assists in amicable resolution of their disputes by using specialised communication and negotiation techniques. Elements of mediation are almost akin to music; it does not take an expert to identify a bad note, but when a perfect symphony is played it is almost unnoticeable. Yet it takes immense skill for one to play music perfectly, and when different instruments work in tandem with each other, harmony is achieved. Similarly in Mediation, when the elements are employed perfectly it invisible to the parties, but if even one of the elements is applied improperly the harmony of mediation falls apart, turning into a sour and discordant tune for the parties. “The Secret to Success” Confidentiality is the pillar that helps exhibit the very ethics that lie at the heart of mediation. One of the chief reasons for preferring mediation over other forms of ADR has been privacy. Participants share with the mediator regarding their pressure points, litigation strategies, settlement position and sensitive information as they are ensured about the confidentiality of the process. The same is ensured by international mediation rules, judicial decisions, and confidentiality clauses in the mediation agreement. The Mediation Bill 2021 by insertion of S.17 and S.23 carries provisions to enforce confidentiality in the mediation proceedings, it not only imposes a duty upon the mediator to uphold confidentiality but also prohibits the use of any information disclosed or discussions made to be produced in the courts as evidence. Ethical guidelines for mediation require that confidentiality shall be established before the mediation begins and is to be maintained throughout the process of mediation. Once established it becomes a constant element that pervades all aspects of the mediation process. Mediations are covered by different levels of confidentiality. Put simply; what happens in mediation, stays in mediation1 . Confidentiality is engraved into the very inception of the mediation process, during the opening statement when mediator informs the parties that he will never testify in favour or against either participant, in any court proceedings or elsewhere. He portrays his confidentiality obligations in the separate session again to establish a safe and conducive environment to delve into confidential mediation communications. Therefore, the duty to establish confidentiality is inextricable from the mediator?s role. He not only binds the parties but also binds himself to preserve confidentiality throughout the process of mediation. The hon?ble Supreme Court in Moti Ram (D) Thr LRs v Ashok Kumar & Anr acknowledged specifically that any discussions or proposals discussed during as well as after mediation are confidential in nature. The judgement is a step forward in court directed mediations where it was held that in the event a mediation is successful, the mediator should simply send the executed agreement between the parties to the court. In case the mediation is unsuccessful, the mediator should not disclose the proposals or the reasons for the unsuccessful mediation. Thus, it protects confidentiality during as well as post mediation.

Self-Determination

“Resolution on One’s own Accord” It is the key factor which distinguishes mediation from litigation and other dispute resolution process. Mediator shall conduct a mediation based on this principle i.e., the participants make free and informed choices voluntarily and ensures their decisions are uncoerced and tailored according to their interests, needs and requirements. This includes a right to terminate the mediation which is not diluted even in court annexed mediation. Mediator intently clarifies to the parties that they are the sole decision makers as they are best suited to put forward their issues. It is the paramount ethical duty of the mediator to promote autonomy of parties without coercion and ensure that they take informed decisions after evaluating and understanding all avenues available to them. It is equally important for the parties to realize the gravity and weight of their decision on the matter. Mediator has to be cautious to remain non-directive and control his desire to intervene and offer suggestions. It happens due to various reasons, at times parties desire the mediator to intervene and suggest a solution or when the parties reach a deadlock. The ethical principles guide the mediator during such dilemmas. His perspectives should not colour the participant?s decisions. Self-determination during the negotiation stage involves a significant participatory role of parties as they interact with each other as well as with the mediator, which promotes the ultimate effectiveness of the mediation process3 . It is at this stage a mediator has another duty i.e., to manage the power balances occurring and a party is either deciding due to some pressure, fraud, coercion or misrepresentation. This places the mediator in a dilemma as to whether he should refuse or continue with the process or not. The power imbalance can also be due to the limit of competency of the parties due to their background, lack of education and they are not able to understand their interests properly, the mediator is again in a dilemma as he cannot make suggestions since that would impact his neutrality. Then he, in a subtle manner, maintaining his neutrality protects the self determination of the parties. He can employ various techniques from his toolbox to handle such situations, one of which he can use here is his/her questioning skills in order to nudge the parties in a way that they can understand their interests and then work toward a solution on their own.
https://heinonline.org/HOL/P?h=hein.journals/jamcook19&i=19

Voluntariness

“Parties’ Involvement is Volitional” Mediation begins and ends with the parties? consent as willingness is the most desirable element of mediation. Parties not only choose the process of mediation as well as have the authority to choose their own mediator4 . They have the right to stay in the process from the beginning, free to agree or disagree with the proposals discussed during the mediation, invent new options by lateral thinking, keeps silence and refuse to respond and ultimately have the right to walk away without describing any reasons. They can be represented by another person, such as power of attorney holder or any other representative. The essence is that their real engagement and active participation is the core of mediation and a crucial factor in taking the mediation forward. It is this element of voluntariness which ensures an adherence to the settlement agreement. For one can lead a horse to water but cannot force it to drink. The voluntariness of the mediation process is what enables true uninfluenced participation.

Neutrality

“No Interest by One is in Best Interest of the Others” Neutrality establishes fairness, and integrity which is fundamental to the process of mediation. It is central to the theory and practise of mediation, an antidote against bias. Assisting to create a conducive atmosphere in which grievances can be voiced, emotions can be vent and agreements can be crafted with mutual consent. It is vital to ensure participant?s trust in the mediation process. Establishing neutrality is the bedrock of successful mediation as the parties come to mediation with conflicting opinions desperately seeking a neutral perspective. It acts as a soil in which the seeds of trust can grow. Mediator, a neutral third party, is the sole guardian of this foundational element. Mediator establishes at the time of the opening statement by informing the parties that he has no direct or indirect interest in the outcome of the dispute, he has no previous knowledge of the dispute and have no acquaintance with the participants. This works to promote neutrality throughout the various stages of mediation5 . It is the ethical duty of the mediator to exclude his personal beliefs and aid parties in arriving at a resolution through self-determination. Neutrality is reflected during all the stages of meditation otherwise participants will not voluntarily engage in the mediation process. However, maintaining neutrality is easier said than done, this is because some biases cannot be disentangled and are so engrained in one?s personality it is impossible to identify and address them. This essentially means mediator must additionally prevent his biases and perspectives from entering into and influencing the mediation process. This maximizes the consensual nature of the outcome as mediator?s neutrality is closely connected to it. Thus, this is an important issue as it has the potential to erode the justiciable quality of mediation which can also undermine the self determination of the disputing parties.

Impartiality

“A Crucial Balancing Act” Impartiality is defined primarily as having no favourites and is reflected in the action and behaviour of the mediator. It is also demonstrated by the words, body language, manner and management of the process by the mediator. An even-handed approach is maintained, and the mediator must treat each of the parties in the exact similar manner, not to exclude them, or take sides of either party6 . He must remain impartial in all aspects of mediation – while communicating with them, rephrasing, summarising their statements, their positions and interests, asking questions, division of time in separate sessions, seating arrangements and fixing the next date for mediation. Impartiality has become so intertwined the very image and behaviour of the mediator that mediator has to be very cautious and continue to review his own behaviour and thoughts during the process of mediation. He has to pay attention to his verbal and non-verbal communication skills and cues, so that he does not become a reason of a deadlock in the process. Impartiality can be displayed in various ways - like maintaining equal eye contact, body posture and choice of words so that the trust of parties remains intact with the mediator, not only to self-monitor but also understand the participants Thus, impartiality along with neutrality is the essence of the mediation process.

Non-Adversarial

“Collaboration – not Competition” Mediation establishes a non-adversarial scenario and facilitates an amicable resolution; it differs from arbitration and court proceedings where the decision is taken by the third party and in the end, one wins over the other. Mediation on the other hand, is a win-win process where both participants can walk away as winners, no one is right or wrong as in mediation, the perspective is to reach a resolution in a measured way which can be acceptable to all. “While it is true that both may not have won a complete victory, but the satisfaction that they have decided for themselves is alone a victory. Win-win negotiations also involve reaching mutual gains by trading of differing preferences to create value. Parties during different stages of negotiation choose negotiation styles and strategize to bargain with the sole end of achieving a mutual gain. Mediator with his tools helps them to shift their focus from positions to interests and also used various techniques to break through the impasses, enabling them to see the light beyond the tunnel. Mediation?s non-adversarial character was emphasised by Hon?ble Chief Justice DY Chandrachud7 where the significance of mediation as a means to bring social reform with constitutional values through communication of ideas and free flow of knowledge and information was highlighted.

Flexibility

“Adaptability leads to Opportunity” Though mediation is a structured process, but its uniqueness is that it can be shaped and tailored according to the nature of the dispute and requirement of the participants. There is lot of freedom and choices which enables participants as well as mediator to focus on the needs and interests of the participants. There are no strict rules like court proceedings and parties are given opportunity to negotiate their own agreements with an open mind. They are not bound till they sign the agreement which entails free flow of option generation as there are no strict rule of evidence to be adhered by them . The process can be halted at any time, the time, location can also be adjusted according to their needs, participants can bring anyone in the mediation, even an advice of expert can be facilitated by the mediator. Thus, it is a process which can be tailored according to the needs and desires of the participants.

Future Oriented

“Spotlighting the Long-Term” Mediation concerns not only to settle the conflict but also to clarify the conflict which requires depth in the past, present, and future. After the ventilation by the parties, without judging who is right or wrong, the mediator on the traces of the past, develops a mutual understanding of interests and needs. The present is the process to rebuild a trust for future, to take on new perspectives as the focus is to build relationships. The positive psychology is future focused – problem to solution, complaints to goals and resistance to openness. Thus, the conflict is settled but not resolved. Mediation aids party to find mutually respectable solutions which not only helps them to resolve the dispute but also preserve their relationship in the future. The positive psychology is future-focused, and it is only because of that participants discuss and generate options with a different approach. They do not treat each other as enemies, rather try to understand each other?s problems to enable to get the best for both. Mediator helps them to separate the problem from the person. Thus, in the end, mediation shifts focus from problem to solution, complaint to goals, and resistance to openness.

Finality

“Completeness is Contentedness” Mediation brings finality as the settlement agreements are non-appealable . In court annexed mediations, the settlement agreements are treated like a decree of a court which is nonappealable under Order XXIII Rule 3 CPC . Since the Mediation Bill 2021 is still pending, mediation settlement agreements are either treated like a conciliation agreement under S.74 of Arbitration and Conciliation Act 1996, which is enforceable as a decree of the court. However, there are few judgements of different high courts which prefer these settlements to be treated as a contract between the parties, which is enforceable under the provisions of the Indian Contract Act.

Mediator

“An Orchestra without a Conductor is Dysfunctional” Mediator a facilitator, neutral, non-judgmental catalyst, transforms the problem to a solution, unveil the true interests, move parties from position to interest, rather brings them on a platform where they can understand each other?s interests with the view of few techniques and skills which are embedded in his role.
Logical thinking – it is an ability to think in a disciplined manner, mediator peels back the multi-layered dispute by using reasoning consistently to arrive at a conclusion. It is akin to playing a game of chess, which involves working a sequence of steps to move closer to victory. Techniques like reality testing helps the participants to take realistic decisions. They compare their best alternatives to the settlement to assess the value of the offers made in the settlement (BATNA)11 . The mediator assists them in evaluation of their strengths and weaknesses during the private session. After understanding the needs, the non-negotiable interests, reserve and aspiration price of the participants, the mediator clarifies Zone of Possible Agreement (ZOPA), which is a high probability zone of settlement. Mediator spends substantial time brainstorming, especially when parties are negotiating and disclose confidential information in separate sessions to find and determine ZOPA.
Lateral Thinking – It is a parallel thinking process with a focused attention which is used to generate options and think out of the box. The box consists of traditional remedies to resolve disputes while out of the box thinking opens the door for broader options and expands possibilities for solutions. For example, the orange peel story is perfect instance of lateral thinking. It has two components, inventing and evaluating. Parties get involved in a strategic exchange of ideas and explore workable, non-workable, impractical ideas with a focus to welcome unusual options. The mediator assists the participants in refining the options in a more focused, explicit and structured manner. Another technique emanating from lateral thinking consists of expanding the pie, wherein more value is created to sweeten the pot. A great example of the same is present in the Camel theory. Expanding the pie involves integrative bargaining in the negotiation which builds goodwill and trust. An experienced mediator understands the importance of effective communication during the process of negotiations. Active listening helps to foster a conversational atmosphere and builds a rapport between the mediator and the participants. He gives utmost attention to the non-verbal clues of himself as well as of the parties – eyes and facial expressions, body posture, nodding of head, smirk etc. He values the power of words and the skill of asking the right kind of questions such as leading questions to gather information or hypothetical questions to understand the interests of the parties. His emotional intelligence enables him to ascertain the emotions of the parties, wherein he empathises with them and builds trust. These communication skills, help him to identify the negotiation styles12 – avoiding, accommodating, compromising, competing, and collaborating styles chosen by the participants. It helps him to discern the objectives and goals of the participants which again brings him closer to the bargaining phase. If parties have taken strong positions, then he first determines the reasons behind such positions so as to navigate them towards a solution which caters to their mutual interest. Mediation is analogous to a living organism, the way an arm and a leg are not half a „human? similarly mediation without all its components is not truly mediation. It is when different limbs are a bound together that we begin to see a silhouette of a human. But the convergence of all these limbs is futile without a sense of direction and purpose. The mediator acts as the brain and sits at the very helm of the mediation process, taking careful decisions on which limb to use and when, incorporating different elements in order to effectively tackle the situations at hand. If any one of these elements are extricated, mediation loses its identity. Only when these elements are work synchronously can it be truly defined as mediation.