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Mediation Motto: Let The Parties Decide

Sudhanshu Batra, Senior Advocate
2 Oct 2020 2:34 PM GMT
Mediation Motto: Let The Parties Decide
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Mediators can't Judge, can't advise, can't suggest or can't even compel the parties to decide. What Mediators can certainly do is to empower the parties to decide for themselves. What is 'empowerment'? It is the process of becoming more confident and stronger, especially in controlling one's life. It is acceptance of responsibility and the refusal to perceive himself or herself as a victim.

Empowerment allows us to see choices and to challenge the existing beliefs. It results in seeing the choices that the parties had not seen before or experiencing the freedom to make the choices that they are able to see. Seeing, realizing and believing that new choices or options are indeed possible. Empowerment is thus seeing such new choices or options. This aspect of empowerment could be termed 'Awareness'. Awareness is characterized by a sense of individual agency and the confidence that it can be done.

We have come across numerous instances, where a party remained in an abusive relationship for years. The reason is that the party lacked the sense of personal empowerment to see or understand that he or she had other options/choices that are possible or doable. An outsider could see it. But the party was clearly disempowered to make other choices because he or she could not discern its possibility in the midst of emotional turmoil and conflict. This awareness to observe and recognize the existence of choices is a critical aspect of 'Empowerment'.

Awareness to observe and recognize the choices comes from the second critical aspect of empowerment, which is 'Language skill'. In other words empowerment comes from the use of a new language for self-expression. For example, if a low feeling in a person is always described by the word "sad", then the person would understand every low emotional state as 'sadness'. However, a low emotional state may also be a form of 'depression'. By expressing each low emotional state as "sad" only, does not make the person realize the cause or source of their emotion and so find it much harder to address it. There is thus a deep connection of people with the language. What is said, how it is said and interpreted. Thus, empowerment includes introducing the person with a wider vocabulary, which helps him or her to improve their own understanding of the conflict and to address the cause or source of their discontentment. New language or vocabulary plays a critical role in allowing deeper meaningful self-expression. In fact, the role of language is intertwined with the capacity to reflect on oneself and one's psychological and social state of mind and makes us capable of new expression and thus new experiences.

The third critical aspect of empowerment is termed "Emotional". Empowerment gives us a new emotional understanding and therefore a new relationship to our emotions.

Often the people who are disempowered are those who are not in touch with themselves or who tend to deny their needs in the bid to either please others or fulfil social norms or to maintain a 'good image' of themselves that society expects of them. Disempowered people are so deeply immersed in themselves that they can't see a way out. In all such cases their feelings come out in an unhealthy manner. This is either due to a pathological fear, mixed with other emotions such as being rejected or ostracized or due to their rigid and narrow perspective.

Empowerment includes facilitating a new relationship to one's emotions. From the repressed tendency, it takes the value of distance and rejects the idea of running away from uncomfortable feelings. From the overly emotional person, it takes learning to feel one's feelings, but rejects being a slave to them at all times. Empowerment allows our emotions to run their course, without judging them.

In this context, empowerment consists in being able to observe one's emotions, see and recognize new options and choices, and thereby give a new expression to the problem and its solution with interest and compassion. Disempowerment leads to negative thinking and negatively judging oneself.

How do Mediators empower the disputants?

The most crucial requirement for facilitating empowerment is to first attain some level of empowerment ourselves as Mediators before we are able to facilitate others in an attempt to empower them. It is only after achieving the state of self-empowerment that the process of facilitating empowerment amongst disputants begins.

A key skill to facilitate empowerment is the ability to listen, observe, witness and recognize as to what is going on internally between the parties. Once a Mediator develops and discerns these competencies, he or her needs to possess appropriate language skills that helps him or her to describe the situation in a positive way and help the parties to meaningfully reflect. As Mediators we need to ask ourselves, whether we practice such skills.

There are many "transformative practices" that can help cultivate the capability and capacity to witness that lies at the heart of empowerment. As Bernard Meyer would say, 'the focus of all conflict resolution should be empowerment'.

The skill to listen gives the Mediator the ability to observe, recognize and understand the needs of the parties as distinguished from their desirous. It also gives an opportunity to understand their emotional barriers, responsible for disempowering the parties. The underlying conflict not expressed but felt is unfolded with Listening skills.

In addition to active listening, the skill to inquire, by asking the right questions facilities the empowerment process. Open-ended questions more often than not elicit much more information. It is important to remember that being curious is more natural and effective than a narrow inquisition. In order to empower the parties to reach their own settlement, mediators must focus on what is it that the parties really want and need. In 'Getting to Yes', the authors define these as 'interests'. Interest-based mediation assists parties in finding creative solutions by asking thoughtful questions.

". . . 'What is important to you?' especially when asked in an open, non-judgmental way. It communicates … what matters to that person, regardless of why it matters or even whether it should matter."

The power to enquire is to focus on the future interests rather than fanning their emotion from some past drama. Therefore, reframing the 'interests' is a must-have skill in the mediator's toolbox. Reframing Skill amongst other repertoire of skills becomes easier once the Mediator learns and develops his or her language skills. What to say, how to say and when to say.

A Mediator, who uses these mediation skills, recognizes that helping parties identify their own present and future interests assists them in generating their own options, rather than soliciting suggestions or advising them what to do. Therefore, the motto "let the parties decide" fits in well in the Mediators toolbox.

Views are personal only.

(Author is a Senior Advocate at the Supreme Court of India And a Mediator)

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