Beyond the Courtroom: Mediation Skills

 Growing Importance of Mediation

According to the National Judicial Data Grid (NJDG) report on 1st  February 2023 there are over 5 Crore pending cases in the Indian Courts and 69,000 in Supreme Court alone. The number of pending cases is not the single issue when one discusses the importance of mediation, for a country like India with more than 50 cultures including the tribal states mediation turns into a ray of hope for many. The challenges faced by the mediators while dealing with the different cultures at conflict is one area that needs attention, the models and technique used by the mediators dealing with various cultures requires more research, the factors that creates challenges for the mediators like language barrier, gender, orientations have to be examined. There is also a possibility of mediators abusing their powers or exploiting the clients. This is where a dynamic and holistic curriculum of a Law School, like that of School of Law, The NorthCap University, top private university in Gurgaon have a golden feather in their Cap. 

As per the World Population Review (WPR) on 3rd March 2023, India overtook China in total population. The rise in the number of cases runs parallel to the rise in population. Time and time again the courts have proved to be insufficient in dealing with the pile of cases; it is indeed one of the biggest challenges for the Indian judiciary in discharging justice for all the litigation. The setback and delay wears down the public trust in justice delivering system. Mediation and other forms of Alternative Dispute Resolution have pretty much yielded great advantages over the long costly litigation process. The whole journey of mediation is to make the parties at dispute find a solution amicably at their own will; the mediator is a third person skilled to guide, pin down the issue. The additional choice for mediation is the option for the parties to walk away whenever they wish if they feel that mediation is not serving them, meaning its non compulsory nature which does not bind the parties like in usual lawsuits or litigation cases. 

Way Forward

The time, cost and energy spend on mediation is notably lower than litigation. There is a greater scope for exploring several options to adjudicate the conflict. It also gives parties the freedom to consider all options. The final decision is not a judgement. Mediation is private and confidential. It is not strictly within the framework of law, emphasising on being flexible and informal. Parties get appropriate opportunity to be involved, this often leads to recognising each other’s needs. The traditional concept of a mediator has been very restricted and the role it plays during the process of mediation is often considered limited, however the importance and growing popularity of Mediation skills across the globe, increases the scope of a law student.

Their role is not only restricted to creating favourable physical environment for the parties but also assists the parties during communication and negotiations by providing a procedural framework which include the various stages of mediation process and by also improving the emotional environment if situation demands through restricting pressure, aggression, intimidation and providing a sense of neutrality. There are usually 3 styles of mediation, first one known as the Evaluative mediation which is often used to solve issues quickly. This method operates on the basis of open-ended questions that can be answered with a “Yes” or “No”. The second style known as the Transformative mediation frequently creates a space for more expression of emotions and may lay down questions like : How do you feel about this...?, How  did this happen?, What would you do if....? And so on. The Facilitative mediation is the third style of mediation and is generally uses approaches of both the first and second style, based on the parties’ dynamic needs. A mediator in this style would frequently try to normalize perspectives and validate both parties’ point of view. The interrogations techniques at times obligates the mediators to repeat the key words back or phrases with pejoratives omitted or apply liberal interpretative paraphrase. Such skills required during such sessions comes from practical sessions that is part of the usual curriculum of School of Law, The NorthCap University, Best private university in Gurgaon-Delhi.

Dr.Rituparna Bhattacharjee

Assistant Professor(Sel.Gr)

School of Law,

The NorthCap University

Gurugram