You ( A little apprehensive on opening the blog. Hoping there is more to it than the title): Anyway, what can be nice about resolving disputes?
Me: Hii!! A very very warm welcome to the peaceful house! You are my first guest! I am so glad you came to read my blog.
You: Yeah. Let’s see how long I’ll stay. Anyway, answer the question. What can be nice about resolving disputes?
Me: Oh yes! Let me straight get to it. Something can be nice about it, right? It might teach you a lesson. I just came across the Facebook status of Tom Valenti, a very well-known mediator in the world. It is a quote from John Fitzgerald Kennedy. It says-“When written in Chinese, the word “crisis” is composed of two characters-one represents danger, the other represents opportunity.”
You: But what is the point? I don’t like disputes. I don’t want disputes. They are so stressful. And have you seen the situation in India? Going to court is a pain in the a**! Have you seen Sunny Deol screaming in Damini and describing the plight of the Indian Judiciary?
Me: Absolutely right! Disputes suck. They take up time and energy and then there is this unbearable legal cost. You hate those lawyers dressed in black. You don’t want the courtroom drama. You don’t want the mental trauma. But litigation is stressful. The trial keeps getting postponed due to technical reasons and you realize that “taarekh par taareekh” perception of the Indian Judiciary was actually true. And most importantly, because of all these factors surrounding our judiciary, you don’t have enough trust in the system. Trust me, I completely understand all this!
You: Exactly! That’s why there is nothing nice about disputes!
Me: But conflicts and disputes are a part of life boss! Everyone is unique! People have differing points of view and we all need to figure out how to live with each other. Differences are bound to happen.
You: But what should we do?Litigation?:|
Me: Nope. Resolution.
You: What does that even mean?
Me: You don’t want to win a case. For god’s sake, it’s a dispute. Not a freakin’ sport.You want a solution!
You: But isn’t winning the solution??
Me: Ahh! Surprisingly NO! A recent study concluded that 70 percent of the “winners” in litigation were unhappy in the end. Former US Supreme Court Chief Justice Warren Burger has put it quite appropriately; “The notion that ordinary people want black-robed judges, well dressed lawyers and fine courtrooms as settings to resolve their disputes is incorrect. People with problems, like people with pain, want relief, and they want it as quickly and inexpensively as possible.”
You: Okay, so what can we do?
Me: We need to find a way to resolve these differences. There is unity in diversity. We need to find a common ground.No matter how far apart we are in our feelings, thinking or beliefs, finding that common ground would enable us to come together and find a solution that we all can live with.
You: Sounds too utopian! How do we reach that common ground?
Me: Every conflict has emotions. If you are caught up in a human conflict; in most cases you must be feeling dismissed, discounted, disenfranchised or disrespected. There are unresolved tensions that may have simmered below the surface but can resurface and make situations difficult. Even if angry words are not exchanged, an appearance of “peace” may not be truly peaceful at all. Underneath the still waters, there may be a turbulent bed of emotions. And emotions matter!
You: Every conflict has emotions. That’s true. Still, how do we address those emotions?
Me: The conventional litigation system is all about rights and remedies. It’s a game. Its about which lawyer is better at twisting the law. The judge is a mere umpire. There is more focus on following the rules than the actual merits of the case. Litigation is about maintaining uniformity. It does not take into consideration that even the two most similar cases can have some unique facts different from each other which can make all the difference. Litigation does not give a shit about emotions. You cannot have one set standard! One technical error and the judge may order a re-trial. It’s all about winning the case. It’s about imposing the verdict. It does not deal with the real problem. Oh God, Roscoe Pound will be so proud of me!
You: Why? What? Who is he?
Me: He is a distinguished legal scholar. You must read his paper titled “The Causes of Popular Dissatisfaction with the Administration of Justice”. It will help you understand the intrinsic problems with our legal system.
You: Thanks for the random trivia. Coming back to the point. What about emotions?
Me: Yes. Sorry! So basically we need a mechanism of dispute resolution which addresses the underlying emotions that gave rise to it and sustained it. We need a mechanism of dispute resolution which focuses on needs, empowerment, restructuring perspectives or relationships and seeks to resolve the underlying problem. We need a mechanism of dispute resolution which is more empathetic towards people. We need to help parties find authentic peace. We need a nicer way of dispute resolution.
You: And does such a mechanism exist?
Me: Yes it does! Tadaa!
You: What is it?
Me: It is the nicest way of resolving disputes.
You: But, what is it called?:|
Me: It is not called mediation. Hehez!
You: THEN WHAT IS IT?
Me: Let’s have a conversation tomorrow? I’ll tell you then! Pakka. Promise
You: I know you are talking about mediation. I know it stays in the peaceful house. I am not stupid. -.-
Me: I’ll give you the answer. In detail!
Do come, okay?;O
- To one of the greatest legal scholars of America. He is responsible for the growth of Alternative Dispute Resolution (ADR) in the World. This article had a huge impact on me. It changed my perspective towards the problems intrinsic to our legal system. Please give it a read. “The Causes of Popular Dissatisfaction with the Administration of Justice” by Roscoe Pound.
- A lot of inspiration from this article-“Mediation is here to stay!” by Anil Xavier, President of the Indian Institute of Arbitration & Mediation (IIAM). He is one of the pioneers in the field and I am a great admirer of his work in promoting mediation in India.
- Tom Valenti, one of the most renowned ADR specialists in the world. He has done a lot of work in the field of mediation. There will be a need of a separate blog to cover all his work. I wish that he trains me someday. Sorry sir for stealing your facebook status.