TOT 116: “Helping to handle that single issue”

Mediation training should equip the trainees to also assist (as mediators), the disputing parties to handle that one and the only thing which troubles them in taking decisions. Often it is seen that the disputing parties are on a crossroads. At times a thought makes them move towards one side and very soon another thought steps in and makes them take a different turn. It is under such circumstances they will be unable to take a final call. Though they may not be expressing this dilemma, or confusion in the process of taking decisions, an experienced mediator can reasonably make out what may be troubling them. Many times disputing parties hesitate to disclose what they actually want to happen. 

Even though a mediator assists the parties in the process of decision making, taking a decision, either way, is completely left to the choice of the parties. But, in order to assist the parties, the mediator has to understand what exactly this party wants to happen and does not want to happen. 

To understand the answer to this vital question the following technique can be used:

Asking one single question

Example 1:

Husband has filed a petition for restitution of conjugal rights. Wife is opposing the same. 

Mediator: Help me understand is there some expectation of yours, which if fulfilled would make you get back to your husband and live with him?

Wife: “Even if he gives me hundred crores also I will not go and live with him”.

(This answer may give an indication to the mediator that it may not be a fit case for reunion)

Example 2:

Suit for specific performance of agreement. The Land Owner refuses to get the sale deed executed. Agreement holder insists upon execution and registration of sale deed., as the subject side is abutting to his house.

Mediator to Land Owner: Is there something that you are looking at in exchange if you have to get the sale deed executed in favor of the defendant?

Type 1 answer by Land Owner:

Come whatever may I will not sell this property.

(This answer gives an indication that there cannot be a decree by consent for specific performance, and refund of money may be the other option).

Type 2 answer:

Defendant has multiple properties. If I leave this property, where will I go? I also want to have some property in my name.

(This answer gives an indication that the plaintiff may be looking at the defendant’s property in exchange for the suit schedule property). 

Type 3 answer:

I cannot lose my complete hold over the property. I should have some name attached to this property, which is inherited by me from three generations.

(This answer gives an indication that the plaintiff may be willing to enter into a joint venture with the defendant or in sharing the property with the defendant etc.) 

When is this technique used

1. It cannot be and should not be used in the beginning sessions.
2. It can be used when negotiation has started and nothing is working .
3. Only when there is an impasse situation, this technique may be used.

Preparation: Mediator has to pre-meditate on the question to be asked.

The question should be framed properly. It is ideal to frame 2-3 questions and zero on one. It is also ideal to write the question(s) on paper and identify the question to be asked.

Setting an atmosphere: Mediators have to set a comfortable atmosphere before using this technique. The agenda has to be set and informed to the party. 

Example: Mr.. I will ask you a question. You are free not to answer the same. But, if you feel like answering, please answer. I will assure you that your reply will be kept completely confidential. Please note that you need not have to answer immediately. After I ask the question, it can take fifteen minutes (a week’s time etc) for you to get back to me. I request you not to answer immediately.

Thus the entire session should have one question from the mediator and answer to the same by the party. The session should not have anything else on the agenda.

Where is this technique being introduced?

It is ideal to introduce this technique in advanced mediation courses, or in refresher courses where the trainees have experience of conducting at least 100 mediations.

Method:

It is used in the form of a simulation exercise.

Case history in three to 4 lines is given.

Each participant is asked to write down one and the only question to be asked to both the parties. (Question proposed to be asked to one party may be different from the one proposed to be asked to the other party).

“The art of proposing a question must be held of higher value than solving it”

Georg Cantor
An outstanding violinist and mathematician who invented ‘set theory’

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(All Copyrights reserved by the author S.Susheela)