ROLE OF LAWYERS & TRAINED MEDIATORS

By
Dr. (Prof.) B. T. Kaul
Chairperson
Delhi Judicial Academy
"The varieties of dispute settlement, and the socially sanctioned choices in any culture,
communicate the ideals people cherish, their perceptions of themselves, and the quality
of their relationships with others. Ultimately, the most basic values of society are
revealed in its dispute settlement procedures."
-Jerold Auerbach
NEED FOR ALTERNATIVE DISPUTE RESOLUTION
MECHANISMS
 The most conventional form of dispute resolution in India has been adjudication
where one or more independent judges apply pre-existing legal norms in adversarial
proceedings to arrive at a decision in which one party is assigned the benefits of a
legal right. However, despite its extensive use, the mechanism is not without its flaws.
 According to Thomas Carbonneau, such an adversarial adjudication process is based
on “the limitations of semantics, the fallibility of memory, the will to prevaricate, all
contributing to unpredictability and uncertainty”.
 An excessively partial or slow judicial process renders fundamental public legal
principles ineffectual, eviscerates private legal rights and obligations, and favours the
powerful over the weak.
 In spite of there having been statutory provisions recognising ADR mechanisms, the
practice has been to resort to adversarial litigation in Courts for enforcing legal rights.
(Note: TD Act, 1929; ID Act, 1947; Sec. 89 of CPC as it originally stood)
 The Indian Judiciary, has due to the backlog and slow pace of disposal of cases been
consistently advocating the use of alternative, less gruelling forms of dispute
resolution mechanisms.
 Justice Krishna Iyer, in the landmark case of Gujarat Steel Tubes v. Mazdoor
Sabha, (1980) 2 SCC 593, vociferously called for the adoption of an ‘olive branch’
approach in the settlement of industrial disputes prior to engaging in prolonged
litigation. He was of the opinion that, “The golden rule for the judicial resolution of
an industrial dispute is first to persuade fighting parties, by judicious suggestions,
into the peace-making zone, disentangle the differences, narrow the mistrust gap and
convert them, through consensual steps, into negotiated justice”.
 Justice Iyer observed that unfortunately, owing to the hierarchical court system in
our country, the common man “lives in the short run but most litigation lives in the
long run”. Therefore, in the resolution of any dispute, the prevailing standard should
be negotiation first and adjudication next.  
 The Apex Court has since then been rather emphatic in resorting to negotiation in the
resolution of disputes especially those relating to marriage or family. It has specifically
been stating so in view of the fundamental object of the Family Court Act, 1984 which
makes it encumbent on the judge to promote conciliation in the settlement of family
disputes. The said Act is a departure from the adversarial system of dispute resolution
and promotes the employment of a collaborative approach for bringing a peaceful
resolution of marital/ family disputes.
 The Supreme Court in Balwinder Kaur v. Hardeep Singh, (1997) 11 SCC 701
observed that, “A duty is cast on the Court in the first instance, in every case where it is
possible so to do consistently with the nature and circumstances of the case, to make
every endeavour to bring about reconciliation between the parties. This objective
governs all courts trying matrimonial matters.”
 Further, in Srinivas Rao v. Deepa, (2013) 5 SCC 226 the Court explicitly discussed
the merits of marital mediation as a method of alternate dispute resolution.
 The Court observed that nearly ten to fifteen per cent of matrimonial disputes get
settled through various mediation centres and accordingly, such disputes should be
referred at the earliest possible stage. This is more so because quite often, the cause of a
misunderstanding in a matrimonial dispute is trivial and can be easily sorted out.
 The Court also acknowledged the emergence of pre-litigation mediation as a means of
settlement of marital and family disputes.
 In the case of G. V. Rao v. L. H. Prasad, (2000) 3 SCC 693 the Court recognised the
sanctity of the institution of marriage in addition to the effect of tiny marital skirmishes
assuming serious proportions on the parties to the dispute. It strongly discouraged the use
of matrimonial litigation and encouraged the amicable settlement between the parties.
 Furthermore, in 2015, the Court in Shamima Farooqui v. Shahid Khan, (2015) 5 SCC
705 was of the opinion that the uncontrolled design of the parties in addition to the
apathy or lethargy shown by the Judges of the Family Court has inevitably resulted in
the corrosion of human relationships.
 A Family Court judge should remember that procrastination is the greatest assassin of
the lis before it and accordingly, decide matters as expeditiously as possible. The Court
stressed on the importance of adopting a proactive approach which could only be
instilled by the various judicial academies functioning under the High Courts.
 WHAT IS MEDIATION?

 Mediation can be defined as a voluntary non-adjudicative form of dispute resolution where

a neutral third party assists the parties to a dispute to reach an amicable solution through
negotiation and facilitation.
 The mediator endeavours to induce parties into a constructive dialogue thereby breaking
any impasse and steering them towards a self-determined mutually acceptable solution.
 The most prominent tool used is objectivity and all parties are encouraged to view the
dispute rationally and arrive at a pragmatic resolution of affairs.
 Mediation as a process aims to systematically isolate disputed issues in order to develop
options, consider alternatives and finally reach a consensual agreement tailored to the
circumstances and demands of both parties.
 The endgame here is to gradually place the dispute in a context of increasing knowledge
about the circumstances, pressures, feelings, attitudes, perceptions and needs of the
parties to a dispute.
 This knowledge will inevitably result in lessening of competition and hostility and
accordingly, an adjustment of expectations, demands and preferences.
 A successful negotiation will only enhance co-operation between the parties and result
in a mutually favourable outcome.
 Mediation is confidential, voluntary and participatory.
 It is interest based as opposed to being rights based and is relatively quick and
economical as compared to the more traditional adversarial proceedings.
 The process being facilitative, conventional mediation does not adhere to any rigid rules
or structural specifications. Accordingly, it is an entirely flexible mechanism of dispute
resolution.
 The main objectives of mediation could be summarised to be:
a. the re-establishment of communication between parties;
b. the provision of a neutral forum which encourages such communication;
c. the provision within that forum of an impartial and supportive presence in the form of
a mediator;
d. the exchange of information between the parties within a structured framework, and
e. the examination of common interests and objectives by parties in addition to
possibilities for reaching agreements that are not only practicable but also mutually
beneficial.
 The core premise of mediation is a willingness to co-operate.
 Without a modicum of co-operation between the parties, however reluctant they might
be to the process, it is highly unlikely that a mutually conducive solution can be
mediated.
 This does not mean an absence of hostility with conflict, often high, being a normal
feature of most successfully mediated disputes.
 ADVANTAGES OF MEDIATION

 Non-Adversarial in Nature
 Cost Effective and Expeditious
 Confidential
 Opportunity to Arrive at Creative Solutions
 Reduces Hostility and Preserves Familial Relationships
 REFERENCE OF MATRIMONIAL DISPUTES TO
MEDIATION

 Marital mediation is a collaborative effort between the parties to a dispute, their legal
advisors and a neutral third party. It relatively inexpensive, limits hostility, and better
promotes an amicable settlement/reunion/split.
 It is an endeavour to preserve the integrity of marriage and meaningful family
relationships.
 STAGES OF MEDIATION

 Introduction and Opening Statement

 Joint Session
 Separate Session
 Closing
 ROLE OF TRAINED MEDIATORS

 Scholars have identified different forms of mediation based on the objectives of the
mediators and the extent of their intervention in the dispute resolution process.
 Generally, the approaches have been divided into:
a. Facilitative
b. Evaluative
 However, practitioners have been increasingly subsribing to an additional
‘Transformative’ approach to the settlement of disputes particularly those relating to
marriage/ family.
 FACILITATIVE MEDIATION

 Facilitative mediators ensure procedural equality between parties by creating a level

playing field for them to negotiate their interests.
 Mediators may ask questions to seek clarifications regarding divergent positions and
interests in mediation.
 Facilitative mediation is also known as interest-based mediation and has been described
as problem solving in nature.
 However, a facilitative mediator will not make any evaluative statement on the merit of
a dispute nor provide any evaluation on the content or outcome. It is assumed that parties
will act in their best interest.
 Consequently, facilitative mediation may not result in a fair outcome in case one party
to the dispute remains silent or bargains inefficiently due to some cultural barrier,
ignorance of rights, or an underlying fear of the other party attending the proceedings.
(Note: For instance, DV victims negotiating custody of children. )
 EVALUATIVE MEDIATION

 Evaluative mediation on the other hand is a rights-based approach. An evaluative

mediator may facilitate bargaining between parties, however, in addition to facilitation,
the mediator may provide suggestions in addition to an analysis of their factual and
legal position in the dispute.
 A mediator performs an evaluative role by not only helping and guiding the parties
through reality testing but in also assisting them in evaluating their options for
settlement.
 This approach to mediation is also referred to as advisory or normative mediation.
 However, in adopting such an approach the mediator often treads the fine line
between assistance and over-intervention.
 In any discussion regarding possible outcomes, even by means of asking effective
questions, the mediator always runs the risk of exerting pressure that could deter self-
determination.
 TRANSFORMATIVE MEDIATION

 In contrast to facilitative and evaluative approaches of mediation, transformative

mediation does not focus on the enhancement of the bargaining capacities of the parties.
 A transformative mediator is more involved with the psychological aspects of a dispute
and provides counselling or therapy to resolve disputes by improving relationships
between the parties and making each more sympathetic to the position of the other.
 As transformative mediation may involve therapy it is also termed as therapeutic or
reconciliation mediation.
 The mediator does not seek resolution of the immediate problem, but rather, seeks the
empowerment and mutual recognition of the parties involved.
(Note: Mediators to be trained in psychology, pschotherapy, sociology, cultural and
gender biases. 40 hours of training is inadequate.)
FACILITATIVE + TRANSFORMATIVE APPROACH IN
MARITAL MEDIATION
 Adherence of women to traditional sex-role ideology persuades them to adopt socially
acceptable submissive behaviour towards their male counterparts during mediation.
 The possibility of a woman's reduced negotiation capability in family mediation is
more obvious in a society like ours in which women not only have lower income,
education and occupational status but the dominant patriarchy also discourages their
equal participation with men.
 Accordingly, women may require extra attention from mediators to bring their
issues to the surface during mediation until the substantial gendered power
disparity no longer prevails. Therefore, there exists an urgent need for clubbing the
facilitative and transformative approaches.
 Further, understandings and assumptions which are embedded in any culture may act
to limit what can or cannot be said and heard.
 Social discourses may restrain women in mediation from forming a complete story or
might prevent them from telling certain parts of it.
(Note: Reluctance to discuss cases of sexual violence or marital rape.)
 DYNAMICS OF MEDIATION

Avoiding Negative Triangulation

 Mediators need to understand conflict, and how it arises and evolves in interpersonal
relationships requiring mediation.
 Triangulation is the term given to triads that are formed bringing others into conflict
in negative patterns to try to gain help and support.
 Triangulation is done by the parties on a subconscious level rather than as an active
step.
 Sometimes triangulation escalates conflict when it results in an unhealthy alliance
between family members.
 Family members generally try to maintain harmony and a good dyadic
relationship. Each dyad of a family can maintain a dyadic relationship with other
members by respecting individual differences and building a positive emotional
environment without involving a third party.
 However, when people in a dyad are in a conflict, they may try to involve a third
party to the dispute usually children for support.
 This leads to triangulation which more often than not only enhances conflict and
hostility.
 A dynamic mediator's role as a third party in a dispute is to be positive as opposed
to negative as in the case of triangulation.
 The formation of a triad in such a scenario needs to be intentional, methodical and
purposive.
 The participants need to be made aware that the triad is a temporary
arrangement designed to clarify and strengthen the dyadic relationship through
reconciliation so that a third party will no longer be necessary or desirable.
 The mediator as the temporary third party is committed to neutrality, availability
to each person and flexible in offering interventions.
 The primary role of a mediator is to form a triad without triangulation.
Understanding the Role of Emotions
 This is of exceptional importance in the case of matrimonial disputes which by their
very nature tend to be distinct from commercial or property disputes.
 The presence of factors like sentiments, emotions, responsibilities, personal duties,
the mindset of the parties to the marriage and life in general makes the task of the
mediator even more challenging.
 Further, the weight ascribed to each factor by a party in the decision making process
might not be based on rational considerations or logical coherence.
 The mediator is to give the parties time to gather their emotions which will in turn
help them proceed with an appreciation of the substantive issues of the dispute.
 However, placing great importance to emotion may hamper the dispute resolution
process. It is important that while showing empathy to a party displaying emotion,
mediators remain unbiased and impartial.
Creating a ‘Safe Space'
 There is an argument frequently put forward by gender specialists that the use of
mediation in the face of imbalances in power renders the mediator amenable to bias.
This is one of the primary reasons why domestic violence experts are adamantly
opposed to the use of mediation in the resolution of matrimonial disputes.
 Aside from the physical risk of continued close contact, in order for a battered spouse
to leave the batterer, she must overcome societal and internal expectations that she stay
to keep the family intact.
 Engaging in mediation during that crucial period when an abuse victim has finally
broken through her silence and publicly acknowledged being battered can easily
damage the victim’s nascent sense of independence and self-hood.
 In addition, the informality of mediation allows the batterer the opportunity to
continue the psychological manipulation inherent in the relationship, with his
normalcy, charm, or erudition.
 It can also cause the victim to distrust her own instincts for survival.
 This is especially true when mediation is focused on the present and participants are
encouraged to ignore past conduct, or assured that the forum will be “judgment free.”
 Thus, an agreement mediated by employing the facilitative approach may be “fair,”
but it may not be “just.”
Appreciating Social Dynamics
 In most mediation in our country, the parties are not alone and are instead a part of a
social matrix that influences their bargaining behaviour.
 In divorce mediations, for example, each spouse usually receives advice and
encouragement from an assortment of friends and relatives not to mention professional
advice from lawyers.
 Not surprisingly, the parties feel accountable to some degree to these constituencies
of supporters.
 Thus, while the mediator tries to understand the unique aspects of each of the parties
(gender, psychological, or other), he or she may not realize that there are a host of other
people in the wings, each with their own complicated backgrounds and psychological
orientations.
 To the extent that each of the parties in the mediation is driven by a desire not to lose
face with these supporters, it becomes necessary for the mediator to understand the
goals of those supporters.
 RECOMMENDATIONS

Pre-mediation Consultation, Planning, and Research

 Mediators should generally consider and, in some cases, insist on a pre-mediation
consultation with the parties.
 In addition to such logistical considerations as who will be attending and how much
time to reserve, mediators can ask about the parties, their backgrounds, and other
information about them that will help the mediator prepare for the case.
 In family mediation, meeting separately with the parties can uncover power dynamics
and cultural differences.
Co-Mediation as a Technique for Leveling the Playing Field
 Parties in mediation often wonder if the mediator can truly be impartial.
 This concern is heightened if, for example, the mediator is the same race, gender, or
ethnicity as one of the parties but not the other.
 Adding a co-mediator does not mean that a solo mediator could not be impartial.
However, from the standpoint of feeling heard and understood, the parties’ preference
to have one of the mediators be someone with a background or characteristics similar
to theirs makes sense and has proven to be a successful strategy for settlement in
mediation.
 ROLE OF LAWYERS

 Lawyers’ participation in ADR, and mediation especially, is increasingly part of

standard legal practice.
 Lawyers in mediation can embrace the underlying philosophy of much of mediation
practice and engage in collaborative problem-solving that is non-adversarial in
orientation.
 Alternatively, lawyers may stymie the potential for settlement by taking an adversarial,
rights based approach in mediation.
 At times lawyers may need to advocate vigorously for their clients’ rights, but
automatically approaching mediation with an adversarial mindset may defeat some of the
potential of mediation to meet their clients’ needs.
 Broadly, the role of lawyers in mediation can be divided into three phases:
a. Pre-mediation
b. During mediation
c. Post mediation
Pre-Mediation
 At the very outset, the lawyer must first consider the scope of resorting to any ADR
mechanism when approached by a party to a dispute. Here, the lawyer’s willingness
to consider such mechanisms takes on a moral and ethical dimension.
 Just as a medical practitioner can be held accountable for his or her failure to advise
a patient of alternative, less-intrusive treatments, a similar duty ought to be imposed
on a lawyer to advise clients of the various approaches to settlement other than
litigation.
 Once, resort to ADR has been considered appropriate, the lawyer is to then consider
which of the mechanisms is most suitable to resort to keeping the nature of the dispute
and the clients needs/ interests in mind.
 In cases where mediation is advisable for the settlement of the dispute, the lawyer must
necessarily educate his client about the concept, process and advantages of mediation in
addition to the role of the neutral mediator.
During Mediation
 The lawyer must demonstrate faith in the mediation process. He or she is to assist
clients, provide practical and legal advice on the process and on issues raised and offers
made, and to assist in drafting terms and conditions of settlement as agreed.
 Lawyers must undertake a risk analysis, work with the client to identify interests rather
than merely positions, and together develop possible strategies that may result in
settlement.
Post Mediation
 The lawyer continues to play a significant role even after the conclusion of the
mediation process. In the absence of a settlement, he has to assist and guide the
parties to either turn to litigation or any other ADR mechanism.
 In case of a settlement, the lawyer has to prevent the client from second
guessing his or her decision and provide reassurance regarding the
appropriateness of the process.
 Lastly, to maintain and uphold the spirit of the settement, the lawyer must co-
operate with the Court in execution of the decree/orday passed in terms of the
settlement.
Need for Collaborative Lawyering
 Seasoned mediators can play a strong role in encouraging lawyers towards less
adversarial practices. This has been facilitated by the Supreme Court’s Mediation and
Conciliation Project Committee.
 More often than not, however, the interaction between mediators and family lawyers
remains limited outside the scope of specific disputes that may have been referred for
mediation.
 A collaborative practice around mediation for family dispute resolution will ensure that
clients benefit from both forms of professional input.
 They will be empowered to participate in a genuinely facilitative mediation process
with all of the advantages of self-determination, and still be provided with the rights
protection of legal representation.
 Such a ‘complementary services approach’ ought to be developed and maintained
‘through regular and positive contact’ between the different professionals in joint
professional development sessions or information sharing forums.
 Many mediators see lawyers as helping clients to see the reality of the situation in
addition to responding to new information that may arise in mediation.
 Most mediators also value lawyers who work with them in opening up opportunities
for listening.
 Mediators appreciate lawyers who are able to listen to information provided by the
other side in mediation and provide a more holistic assessment of the legal issues in
dispute. Accordingly, the 'opening up' of a legal problem for discussion should be
assisted by a lawyer.
 Further, mediators approve of lawyers who work to bring clarity to the issues in the
dispute, who promote the concerns that are important to the client, while still helping
the clients to understand that they may not be successful in court.
Lawyers' to Engage in Positive Advocacy
 In the mediation of any dispute, it is essential that lawyers draw a distinction between
positive and problematic advocacy.
 'Positive' advocacy mandates the lawyers to reality test their clients' instructions where
these are unreasonable or unmanageable.
 'Problematic' advocacy on the other hand is usually associated with family lawyers
who overplay their advocacy role for instance, by demonstrating unflinching support for
their clients' instructions however unrealistic or impracticable they might be.
 SPECTRUM OF LAWYER INVOLVEMENT

 The involvement of lawyers in and around mediation varies considerably according to

the field of practice and the style of individual lawyers.
 However, a broad spectrum of five ways in which legal advisors participate in the
mediation process can be arrived at with almost no involvement at one end to total control
of the process on the other.
 It is pertinent to not that a lawyer is unlikely to adopt one model through a mediation
but will rather prefer to move between models depending on the prevailing circumstances
and needs of the client.
Absent Advisor
 ‘Absent advisor’ lawyers will provide both substantive and procedural advice to
clients, and coach them on participation, but will not attend mediation.
 They will also assist clients to formalise agreements made in mediation.
 The application of such a model can be outright rejected considering most mediators
would prefer to have lawyers present in mediation provided they were collaborative in
their work practices.
 This is because lawyers present for each side enabled updated legal advice to be
provided on the spot in mediation, one of the clear disadvantages of the absent advisor
model.
 Further, there is pressure upon facilitative mediators in many circumstances to provide
advice to parties in order to achieve a settlement and that the distinction between
'permissible information' and 'impermissible advice' given by mediators may be at times
hard to sustain.
 The presence of lawyers for the parties enables mediators to provide a process without
needing to advise the parties.
Advisor Observer
 The ‘advisor observer’ lawyer prepares the client for mediation and attends
mediation with the client, but only to provide them with support and advice.
 The advisor observer does not interact with the mediator or the other party during
the mediation session.
 It is extremely unlikely that lawyers and clients would find value for money in this
model and accordingly, the use of the advisor observer model should be limited to
mediation where data gathering is necessary, such as in complex cases where
mediation is to be held early in the dispute before substantial information exchange
has occurred.
Expert Contributor
 The ‘expert contributor’ lawyer does participate in mediation, but limits his or her
input to providing legal advice to the client which may then be shared with other
participants. The expert contributor lawyer may engage with the other party’s lawyer
during mediation and will often assist the client in reality testing alternatives to
settlement proposals.
 An expert contributor will not, however, negotiate on behalf of the client but will
engage with other lawyers in a persuasive manner.
 The role of an expert contributor seems most conducive to successful inter-
professional collaboration with other stakeholders in mediation.
Supportive Professional Participant
 Both the lawyer and the client participate directly in mediation negotiations under this
model.
 The lawyer acting as supportive professional participant may negotiate, request a
private session, draft a mediation agreement, and reality test the workability of a
settlement proposal which goes beyond reality testing alternatives to settlement.
 This approach is commonly seen from a therapeutic jurisprudence perspective where
lawyers are encouraged to consider the psychological, social, emotional and relational
consequences of their clients' problems.
 Such a model seems most appropriate for use in the mediation of matrimonial or family
disputes in India.
 The supportive professional participant model not only maximises the benefits of
lawyer participation but also retains the essence of client-determination of the content and
outcomes of the mediation process.
(Note: It is particularly appropriate for lawyers to work as supportive professional
participants in Family Court-annexed mediation settings where the client wants to
participate in the dispute resolution process but might need significant assistance
and support from the lawyer.)
Spokesperson
 This is a lawyer-centred approach where the lawyer speaks for the client, negotiates on
their behalf and also provides appropriate legal advice.
 The client here remains largely silent through the mediation process and does not
negotiate themselves.
 This may be the most appropriate role for a lawyer to adopt in situations where
mediation would otherwise be inappropriate because of capacity or power imbalance
issues.
 Nevertheless, it is difficult to advocate the use of such a model considering it risks the
colonisation of the mediation process and the consequent denial of the clients' right to
self-determination.
THANK YOU