For a multitude of reasons—political, economic, social, cultural, and religious—conflicts are inherent in any civilization. And with conflict, there is also a need to build procedures for conflict resolution. India, like many other Asian countries, has a long and illustrious history of collaborative and amicable dispute resolution. The Mahabharata, a classic Indian epic, has an early attempt at mediation as a conflict resolution mechanism, in which Lord Krishna attempted to mediate a dispute between the Pandavas and the Kauravas. It’s worth remembering that mediation’s failure resulted in devastating repercussions.
“Discourage litigation. Persuade your neighbour to compromise whenever you can. As a peace- maker, the lawyer has a superior opportunity of being a good man. There will still be business enough”
The Indian legal system is distinctive not just because it is based on a written constitution, but also because the people have a great deal of faith in it. People have faith in the judiciary to provide them with relief and justice. It provides them with the necessary strength to continue a disagreement. They know that if things go wrong, the courts will back them up. The Supreme Court of India is the watchdog of the world’s largest democracy.
The Indian Supreme Court’s motto, “Yato Dharma Sthato Jaya,” or “Where there is Dharma, there is Victory,” is brought to life by the Constitution, which grants broad powers and jurisdiction to accomplish complete justice between the parties.
The Role of a Mediator in the Conflict Resolution Process
The traditional approach to Mediation considers it as a method of facilitation to improve the communication between the parties in a passive and limited way. The mediator merely had to make sure that all sides were aware of the underlying concerns and that they were able to achieve a mutually beneficial agreement. As a result, they only served as a guide, directing the parties to the optimal solution.
However, as more complicated and sophisticated problems, particularly in the commercial sector, are brought to mediation, the role of Mediators is evolving to include both evaluative and advising participation. The Mediator is now being asked to help the parties in reaching a resolution in a more active manner. He is required to evaluate each party’s relative strengths and weaknesses and offer remedies based on his findings. When the function becomes advising, there is a risk that the Mediator will lose his or her neutrality, allowing temptations and other factors to enter.
The second point to consider is how much ‘neutrality’ and ‘aloofness’ a mediator should have during the procedure. These issues are known as the ‘moral dilemma of the mediator.’ In the principle of mediation, two parties with equal bargaining power seek the mediator’s help in resolving their disagreements. But what happens when one party is in a superior economic, social, and political position than the other? What is a mediator’s role if the agreement achieved is clearly unfair to the weaker party? Should the mediator remain a mute observer throughout such discussions? Is the mediator only concerned with assisting the parties in reaching an agreement and not with the terms of the agreement?
These are only a few of the issues to think about, especially in a country like India with such a complex social fabric. Every Constitutional democracy is built on the principles of substantive equality, and these ideas must be reflected in the conflict resolution process as well.
Psychological well-being in Mediation proceedings
In recent times a lot of complicated and sensitive issues have arisen in the legal sector that necessitates the services of a specialist professional who understands the psychological well-being of the clients, in addition to legal acumen. In the Indian context, most law firms and law offices have not addressed or used this domain specialty. As the court procedure can be challenging at times, we should recognize the importance of the clients’ mental health as one of the most important components in the litigation process.
The mediators must possess high ethical standards, unquestionable integrity, and neutrality. A more active role for the mediator in the mediation process could open the door to parties attempting to sway them. This involves the construction of an atmosphere that deters unscrupulous parties from making such attempts. It necessitates that mediators have a solid reputation and moral standing. To achieve this, the rules and regulations controlling mediators should be strictly adhered to, in order to maintain openness and neutrality.
LAW FIRMS & LAWYERS