This is a guest post by Chitra Talwar from CAMP Arbitration and Mediation Practice Pvt Ltd.
As global activity increases, corporate and commercial enterprises increasingly recognize the best way to resolve commercial disputes is through Mediation. Only if Mediation fails, it merits the next step of Arbitration or Litigation. Why so?
Mediation is a non-adversarial process in which both parties have control of the outcome of the proceedings. It saves time, money, reputation, preserves confidentiality, embodies the integrity of the process, is flexible and ensures enforceability. The outcome most often is a win-win and rarely do parties feel they are a loser in a mediated settlement. All these characteristics are dear to Corporates who have high business stakes and would benefit from speedy resolution to commercial disputes.
The international commercial and legal world recognized the value of mediation for settling commercial disputes and adopted the United Nations Convention on International Settlement Agreements resulting from Mediation (known as the Singapore Convention). With 46 countries including the US, China, India signing on August 07, 2019, the opening day for signature, there can only be an exponential demand for expert Mediators both for domestic and international disputes. India has made mediation mandatory through the Commercial Court Act of 2018.
Executive Coaches who are deeply entrenched in the Commercial or Corporate arena have many of the soft skills that good Mediators display. Therefore, they have all the potential of becoming good mediators with honing of additional skills. As Executive Coaches, be it one-to-one or group coaching, the skills of engaging, listening, facilitating, supporting parties constructively, giving parties control of the process and enabling them to identify options and effective solutions- all these are hallmarks of a good coach and a good mediator. So Coaches have all the basic ingredients to make good mediators. Given their insights of people and business perspectives, they can be great advocates for Mediation as well. Mediated settlements can offer resolution, both in commercial conflicts and in an organization’s human resource led issues.
So businesses, small or big, domestic or international, simple or complex will all move towards mediation over the near term, as preferred and first alternate dispute resolution option for all their contracts and increasingly, this will drive demand for trained, expert mediators.
With the growth of business in India, companies are more frequently facing inter and intra department disputes. In the case of a dispute between heads of two departments a ‘dispute wise’ company, referred it for mediation. In the process of mediation, the mediator initially worked with the two department heads and crucial persons in the company familiar with the dispute, to understand their goals and requirements for the mediation. They unanimously agreed that ‘Enhanced Collaboration’ was in the best interest of the company and that should be the goal of the mediation.
With this information the mediator designed the mediation to create a safe space for the parties to have difficult conversations. At the mediation, the neutral mediator facilitated productive conversations, helped parties handle emotions and identify underlying needs. Once they began to row in the same direction, the mediator worked with them to create an ‘Enhanced collaboration worksheet’.
In the mediation process, the mediator met separately with each party and coached him to overcome assumptions, understand perspectives, identify common ground and communicate perspectives to the other side. In joint sessions, the mediator helped parties to work together to explore options to build bridges so that they can productively work with each other in the future. The document they created contained their requirements for enhanced collaboration in the company, with new ways of operating and aligning to company values. The management also joined for the last session to provide inputs and finalize ‘Enhanced Collaboration Worksheet’. This worksheet included a process to handle future differences; activities to improve communication and build rapport between the parties; learning opportunities for them and ways to clear obstacles that unnecessarily created friction. The CEO of the company later remarked to the mediator, ‘The air in the office is much lighter now’.
Coaches are uniquely placed to extend the skills of coaching into dispute situations and wear the hat of a mediator to facilitate collaborative resolution and prevent the escalation of disputes. With focused training programs, which typically lasts 40 hours and includes a large part of practical simulations and role plays in addition to theory to understand concepts of interest based negotiation, communication, neurobiology and the mediation process, coaches can very easily extend the scope of their interaction with clients as a mediator. Institutions like Coacharya and CAMP are working to bring high quality mediation training tailor made to coaches– we urge the community to see the opportunity in this space, train in mediation and extend your skills as a coach to facilitate the conversion of a dispute to a collaborative, win-win resolution.
“A dispute is a problem to be solved together rather than a combat to be won”. As inherent problem solvers we look forward to expanding the scope of mediation professionals beyond lawyers and judges and support the international trend to develop harmonious economic relations among nation states with different legal, social and economic systems through increased use of the mediation process.
Watch our webinar recording (below) on Coaching for Dispute Resolution Through Mediation or listen to our podcast on the same.