Mediation

Anmol Mathur on Bargaining as a Core to Mediation

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 Introduction

Mediation is about reaching a mid-position where all parties benefit out of the decision so made. It is largely based on negotiations and the bargains each party is committed to make, in order to bend the outcome in their favour. Each party weighs the pros and cons of a situation has to offer and hence decide their bargain, as to what they will have to offer in order to gain what is favourable. A majority objective of this is to minimize the expenditure and delay and maximize the constructiveness of the outcome so made.

A considerable part of this process is achieved by way of bargaining on both the ends. The process of mediation offers a neutral third party which will only guide through the preferable arguments and is not a final authority. Hence, the aim of the parties is not to convince the mediator of their bid, but the other parties who are involved.

Structure of Bargaining in Mediation

Most of our social interactions are a process of bargaining in order to meet our ends, be it the formation of a governmental policy or a negotiation in the international arena. Any exchange situation in which a pair of individuals (or organisations) can engage in mutually beneficial trade but have conflicting interests over the terms of trade is a bargaining situation.[i]For example, in the case of Joint Family partition the major dispute revolves around disagreement over allocation of resources.

According to Dan Reiter [ii], the structure of bargain over a disagreement flows from a linear model. The line represents the benefit that the two actors, A and B seek. Both perceive a potential gain that they sought to achieve which is represented by p. If pis a point on the line, for A to obtain a greater benefit it has to be as right as possible and as left as possible for B to make the most of the situation. However, there is also a cost that is involved. The parties aim at maximum benefit in the minimum cost.

Bargaining Games vis-à-vis Mediation

In a bargaining game, each party has two alternatives[iii]

  1. insist on the terms favorable to himself or
  2. accept the terms favorable to the other party.

Now, the first alternative flows from an isolated behaviour and ends up in a competitive bargain. The main aim and philosophy of the negotiator here is to prevent the other party from gaining what he wants. According to a research conducted by the Economic Research Institute, (EFI), at the Stockholm School of Economics, a number of behavioural and institutional assumptions are successful in determining a partial solution where a disagreement is majorly on the periphery of distribution, as they have only two alternatives in the said bargaining game. Each party here has a preference as to what out of the possible outcomes would yield them benefit.[iv]As mediation is a continuous process and the bargain of the parties can be divided into periods. It is an institutional assumption that at each time both parties have all necessary knowledge in all aspects to put in a bargain. This depends highly of the ethics of the parties to reveal or conceal. In an isolated bargain, the negotiators may resort to lying, bluffing, stealing, coercion or distraction. All these techniques used by a competitive negotiator are to prevent the gain of what he wants to the other party.

A mediation process involves both competitive and cooperative negotiations and more often competitive negotiations works better than cooperative negotiation. It is very basic to put into perspective the bargaining model. A competitive bargain is one where a party cannot benefit until a loss occurs to the other party. This allows for adjustment in behaviours, ethics and motivations of the parties. Such a bargain is likely to yield results that are finally accurate and beneficial for the party opting such bargain. It is also helpful in cases where easy manipulation can derail justice or an otherwise healthy dispute resolution. Competitive bargain offers a very balanced bargain, where the parties are sure of their interests and the focus of the mediation changes from “what” to a very specific matter of “how”. Bargaining games with a competitive insight are often supposed to end with either a winning party and a losing party. However, in a process of mediation, results are only sought after both parties are satisfied. Hence, an advantage over the cooperative style, where it takes an elongated procedure to reach a mid-point. It is more occasionally used in commercial mediations.

The other alternative is duopoly. Many authors have assumed that the players to a bargain in order to maximize joint profit would play a couple of strategies and then the parties would divide profits equally between them. A cooperative bargain is based on the objective of maximizing social utility. It highly flows from a continuous process of biding by each party. One party put forwards a bargain and if the bargain is successful in yielding optimal profits, such bargain is accepted by each party. If not, the other party responds to it by a Prisoner’s Dilemma Game. Hence each step can be divided into:

  1. A bargaining phase, where each party lays down a favourable bid, and,
  2. A duopoly or prisoner’s dilemma game, where a strategy is chosen in order to facilitate its own interest. [v]

Each party goes through an array of compromises in order to reach a conclusion which is mutually beneficial. Here, relationship with other party acts as a bridge in recognizing the scarifies a party would have to make. It is also a probable solution as to when a party lacks a strong bargain. This method is beneficial to such parties as it offers parties some minimal gain in a situation where there was no gain possible. The main aim is to reach a solution and prevent prolonged mediation process.

Mediation: A Bargain in Family Disputes

Mediation has been from time immemorial been attached to the peaceful resolution of family or marital affairs. Even the present-day family court recognizes the importance of both counselling and communication in such disputes. Sections 9 (1) and (2) of the Family Courts Act, provide for a reasonable out of the court settlement, in order to keep intact the harmony of a family. Most often, divorce cases are referred for mediation as courts see mediation as a process of optimal results to both parties. Section 23(2) of the Hindu Marriage Act, 1955 and Section 89 of the Civil Procedure Court (Amendment) Act, 1999 provides for “amicable” solution before a formal suit.

It would be nothing but empowering for the Indian Courts to make mediation a mandate in family disputes. It would not only shorten a long list of pending cases but also give confidentiality to family matters. Formal court proceedings are lengthy and drag along it a lot of expense, time and shreds down family values. The paramount concern of family courts is dispute resolution in a peaceful way. Mediation, here, offers the confidentiality, safe space and the will to figure out what they actually want from a situation rather than what remedy in law benefits them most. Family Mediators have always helped stir uncomfortable family disputes and reach an amicable solution. In the wake of nuclear families, and eroding family and cultural instincts it is necessary to protect the vibe of integrity. Apart from this the legislation for mediation should be made formal and open the doors of legally recognized mediation in India. This will yield fruitful results, as mediation will become a more direct process with all rules of procedure fixed and recognized. It will also mandate that the mediators are very well skilled as their can proper cooperation and coordination between the parties. It can also be easy to serve a large diversity like India, as mediation will be promoted a local level. In this case, both language and accessibility would be a barrier. Hence, a step should be made the direction of making mediation a major, and not an alternative way of dispute resolution.

[i]Muthoo, Abhinav (April-June 2000). “A Non-Technical Introduction to Bargaining Theory”

[ii]Reiter, Dan (6 June 1944). “Exploring the Bargaining Model of War – Perspectives on Politics”

[iii]Stahl, Ingolf (Stockholm 1972). “Bargaining Theory”

[iv]Ib.

[v]Id.

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