Mediation

Cambridge dictionary defines mediation as the process of talking to two separate

people or groups involved in a disagreement to try to help them to agree or find a solution
to their problems. Today, this is seen as one of the effective strategies in the 'Alternative
Disputes Resolution (ADR)' – movement world over.
G. Joseph says: 'An ounce of mediation is worth a pound of arbitration and a ton of
litigation!' Unfortunately, in our times and in our region, magnitude of litigation has
assumed such humongous proportions that 'tonnage' seems to be the only suitable unit to
quantify this unfortunate phenomenon. Today, we have reached a stage where there is truly
no alternative to 'Alternate Dispute Resolution' or to ADR strategies like mediation. In fact, I
would go further and say that there is need for a paradigm shift, in which the primary focus
must be on Mediation and Conciliation and litigation may be resorted to, only as a last
alternative.
As pointed out by Dr. D.Y. Chandrachud, Judge, Supreme Court of India, the entire
focus must not be on the objective of reducing the arrears of cases in the Courts by
resorting to ADR strategies, like the Mediation. Reduction of pressure on the docket of the
Courts, is only one of the objectives. Mediation as a procedural intervention in legal system,
fulfills other instrumental and intrinsic functions which are of an equal, if not greater
importance. In its instrumental functions, Mediation is a means to fulfill the stated
objectives, like quickness, reduced costs, informality of procedure and greater participation
of the parties themselves in the process. Intrinsic function of mediation emphasizes that
Mediation, is the end in itself. The peace which Mediation is able to achieve, is much more
enduring and satisfying than a verdict through the usual litigative process or an award in the
arbitral process.
It is trite that litigation involves delays, expenses, rigidity of procedures and minimal
participation of the parties themselves in the litigative process. J.S. Auerbach in his classic
piece 'welcome to litigation' says that it is virtually impossible to survive litigation and yet
remain solvent; but it is occasionally possible to endorse it and remain sane. As a modern
ordeal by torture, litigation excels. It is extraordinarily expensive; agonizingly slow and
exquisitely designed to avoid any resemblance to fairness or justice. Yet, in strange and
diverse ways, it does settle disputes – to everyone's dissatisfaction. All this at least has a
chance to be minimized, if not eliminated, by resort to mediation, instead of litigation in the
first instance.
Almost 8 score years ago, USA went through most turbulent times in its history.
Strife, violence and hatred threatened to tear apart the union of States. But, with 'malice
towards none and charity towards all', their tallest leader - nay I should say, one of the
world's tallest leaders – Abraham Lincoln steered the Nation and its Peoples to the path of
conciliation and mediation. President Lincoln's contribution to the cause of mediation is
legendary. Therefore, on this occasion, it is altogether fitting and proper that we recall, not
just what he said, but what he did for this noble cause of mediation. President Lincoln
nurtured and developed the skills of mediation quite early in his legal practice long before
he assumed the responsibilities of Presidency. He then carried these insights onto the global
stage showing how peace-making skills can be developed and expanded to resolve the most
difficult problems. Joseph Markowitz – an eminent mediator, has analyzed three of
President Lincoln's quotes on conflict resolution.
In the first, President Lincoln says: 'Discourage litigation. Persuade your neighbours
to compromise whenever you can. Point out to them how the nominal winner is often a real
loser - in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior
opportunity of being a good man. There will still be business enough.'
Lawyers owe a solemn duty to explain to their clients the full range of costs,
timelines and frustrations involved before taking the first step into litigation. Judges too
need to develop a culture, an environment to generally encourage resolution of disputes by
ADR. Gregg Relyea has made a comparison between Lawyers and Gladiators. He says,
present day Lawyers battle with arms of logic instead of lances; with statutes, instead of
swords; with rhetoric, instead of physical force; But now there is a dire need that the
Lawyers transform themselves from Gladiators to Mediators.
In the second, President Lincoln says: 'Quarrel not at all. No person resolved to make
the most of himself can spare time for personal contention. Still less can he afford to take all
the consequences, including the vitiating of his temper and loss of self-control. Yield larger
things to which you can show no more than equal right; and yield lesser ones, though clearly
your own. Better give your path to a dog, than be bitten by him in contesting for the right.
Even killing the dog would not cure the bite.'
Most of you will perhaps justifiably say that this is all very easy to preach, but
extremely difficult to practice. This is possibly because in the times in which we live and the
manner in which we are conditioned to think, fighting comes so naturally to us; but think
again, it no doubt takes a little while to realise that 'never quarreling' is usually a more
successful strategy.
Once we decide we are not going to quarrel, what we are likely to do instead?; We
are at least likely to be open to listening whatever proposals the other side may make; We
are at least likely to come up with some proposals of our own – which we may perceive as
having some chance of acceptance by the other side; In this manner, we create an
environment, in which solutions which are mutually beneficent, stand a good chance to
emerge. In this manner, we at least create an environment in which the conflicting parties
are willing to listen more than merely talking.
This is certainly a fertile ground for mediation. In fact one of the essential attributes
of mediation is to create an environment in which the parties are at least prepared to listen
to one another. Listen – not as Lawyers do - most of the times, with a view to repartee or
with a view to respond – but listen with a view to understand and, if possible appreciate the
other persons' perspective, the other persons' concerns and other persons' anxieties. All this
requires the mediator to invest quality time in listening to the parties either at the caucuses
or at least at the joint sittings or at both. I think it was Dean Rusk who once said that 'one of
the best ways of persuading others, is with your ears – by listening to them'.
Finally, President Lincoln's third quote in his shortest, most profound and perhaps
the hardest to follow. He says: 'Do I not destroy my enemies when I make them my friends' ?
An enduring peace can only be achieved by recognizing our shared humanity, recognizing
that there is no 'other' that must be destroyed in order to achieve true peace. The idea
expressed so elegantly by President Lincoln is perhaps the birth of what is now referred to
as 'transformative mediation’. This method exhorts the parties to change something in
themselves before they can solve conflicts. Using any other method still leaves you with the
enemies, or forces you to annihilate them. Making an effort to understand their concerns
can eventually lead to a more genuine peace.
Nearer home, about almost 7 score and 10 years ago, this Continent presented to
the world – one of its greatest mediators – Mahatma Gandhi. In his autobiography 'My
Experiments with Truth'. Mahatma Gandhi says:
'I had learnt the true practice of law. I had learnt to find out the better side of
human nature and to enter men's hearts. I realized that the true function of a
lawyer was to unite parties riven asunder. The lesson was so indelibly burnt
into me that a large part of my time during the twenty years of my practice as
a lawyer was occupied in bringing about private compromises of hundreds of
cases. I lost nothing thereby – not even money, certainly not my soul.'
Just as we do not want to medical professionals who merely focus upon curing the
symptoms superficially, so also we do not want legal professionals to superficially assist in
ending the immediate strife without any concern to the simmering causes which occasioned
the strife in the first place. This is why it is said that litigation may end the immediate
dispute, but does precious little to end the causes for the dispute; does precious little to
bring about any real rapprochement between the disputing parties.
On the issue of transformative mediation, Mahatma Gandhi says: 'Be the change
that you want to see in the world'. We spend a lot of time trying to change other people.
There is after all, so much wrong with them; they are selfish, arrogant, bullying, cold and so
on. So we try to point out this to them and very often we meet with resistance, denial or
sheer indifference. In our behaviour, we tend to make an implicit distinction between two
positions: getting other people to change and changing ourselves. We focus too much on
changing others and in the bargain overlook our own shortcomings. We then make our own
evolution, conditional upon evolution in other people. We invariably take a position that we
will be nicer if other people are nicer, that we will be more peaceful if other people give up
shouting first. In all this, we obviously miss an important point. People tend, to a reasonable
extent – to mirror behaviour. If someone is aggressive around them, they too become
aggressive. If someone is gentle, they too become soft in return. If someone acts wisely,
they too may draw on the latent reserves of wisdom, they may possess. (see
theschooloflife.com)
 This is where Mahatma Gandhi's teachings come into focus. Be the change you want
to see in others. Seeing us exhibiting certain virtues has a reasonable ability to inspire others
into imitating us. And even if change may not be immediate, we can at least take pride in
the integrity of our position, knowing that we had the strength and the dignity to already
become the change that we wish to see in others. Let us therefore resolve not to squander
away this legacy of mediation left behind by President Lincoln and Mahatma Gandhi. Let us,
in our own humble way, try to emulate these great men, whose very lives have been their
almost divine message.
Neither can the world's most powerful democracy afford to forget President Lincoln,
nor can the world's most populous democracy afford to forget Mahatma Gandhi. And the
world, cannot afford to forget these two great men – the two great pioneers of mediation.

M.S. Sonak,
Judge
International Centre Goa
8 th January, 2020.

Some important questions:

1) What, according to the author is the importance of mediation?

2) According to the author, why is mediation better than litigation?

3) What are the 3 quotes of Abraham Lincoln that the mediator Joseph Markowitz analyzes?

4) Justice Mahesh Sonak highlights Mahatma Gandhi as one of the world's greatest
mediators. Discuss with respect to his essay 'Mediation' 

5) Who are the two greatest mediators of the world Justice Mahesh Sonak mentions in his
essay? Write in brief their contribution to the world as mediators.