Mediators Post

Transformative Mediation

Komal Mathur

Author’s name: Komal Mathur

Profile: Mediator, Attached to Young Mediators Initiative, YMI.

Location: Goa


Dated 24th May, 2020


“Peace is not the absence of conflict but the presence of creative alternatives for responding to conflict.” - Dorothy Thompson


Alternative Dispute Resolution

ADR(Alternative Dispute Resolution) may be described as any process attempting to amicably resolve a dispute outside the four walls of a courtroom. This could be done using various methods, namely- Mediation, Negotiation, Arbitration, and Conciliation. Even though they might be conducted outside the court of law, any agreement that is willingly entered into by the parties during such a process is construed to be legally enforceable.


Mediation, in particular, can be defined as a process, wherein parties attempt to resolve their disputes amicably with the help of a neutral third party. However, such a third party does not have an adjudicative authority, rather they play a facilitative role in the process. This third party is referred to as the mediator. A person can qualify as a mediator only if he/she can fit into any one of the following criteria:-

1. They know the ethics and principles of mediation and ADR required to identify and facilitate the resolution of disputes.

2. They are a retired judge/personnel having adjudicative experience.

3. Lastly, they are specialists in the subject matter of the dispute.


Mediation is a discipline can be classified into 3 major kinds –

  A. Facilitative

  B. Evaluative and

  C. Transformative.

The above-mentioned classification is solely based on the nature of disputes and therefore the particular skill of a mediator that the dispute calls for.



“If necessity is the mother of invention, conflict is its father.” - Kenneth Kaye


Transformative Mediation

In a generic setting of a mediated dispute, more often than not there is a greater emphasis on the claims of the parties and thus the discussion focuses on what each party walks away from the table with.


However,
In a transformative form of mediation there lies a greater focus on appreciating and mending the subsisting relationship between the parties. Such an approach is preferred in cases wherein, the value of the relationship is greater than any compensation awarded. This kind of an approach is generally appropriate majorly in intra family disputes, for example; divorce negotiations, domestic violence, division of ancestral property/ assets, custody battles of children arising out of divorce, prenuptial agreement negotiations, disputes over maintenance of aged parents, etc.


In all of the above-mentioned disputes, there is greater worth in saving the relationship in comparison to any claim on the table. For this to happen, the parties often need assistance in expressing themselves emotionally and also in understanding the reasoning behind actions leading to this dispute. To be an effective facilitator in disputes of this nature, it is often appreciated if the mediator has a basic understanding of human psychology.


Many times such mediation sessions characteristically resemble a counseling session, since the mediator utilities a considerable amount of time of the session in getting the parties to talk about their feelings and emotions. Unlike every other kind of mediators, transformative mediators do not talk much about realistic legal standings or the equity in the settlement offers because transformative mediation is more than the just resolution of immediate issues.


This proves to be fruitful, in shedding light on the nature of the problem form both the parties' perspective and aiding the discovery of an array of options available for dealing with the issue. Thus, a settlement is one but distinctively not the only successful outcome of transformative mediation.


Hence, an obvious concern is its enforceability in the eyes of law, while there’s no binding settlement agreement for mended relationships, however, if there arises a situation that causes unrest and insecurity in the future, then the parties will always have the option of battling it out the old fashion way in a courtroom.


A facilitative mediator aims at aiding the parties at agreeing based on information and understanding. More than resolving the immediate problem there lies a greater emphasis on empowerment and mutual recognition of the parties. Wherein, parties are enabled to recognize their self-worth.



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Comments

Capt Tarique Khan

Well written Komal.



Satyam Gupta

It´s an interesting article to read.



Pankaj Kumar

The blog is well written.



Saurabh Tiwari

Conflict resolution always begins with dialogue. You have wonderfully displayed the importance of mediation to initiate the same. Wonderfully written.




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