Dealing with deadlock in mediation

Meditation is one of the fair modes of settlement of disputes pending among the contesting parties. It is a voluntary, party-controlled and structured negotiation mechanism where a ‘neutral third party’ assists the disputant parties in resolving their conflicts amicably. It has many advantages. Unlike formalistic court procedure, confidentiality of process, party autonomy, flexibility of procedure, creative solution and finality of compromise are core essence of mediation.  A mediator’s basic role is to assist the parties with a view to solving the enigma. It is the duty of the mediator to explain clearly that he/she will not make any judgment and parties themselves will find a solution.

It is quite natural that a mediation process often meets an apparent deadlock. A mediator may often encounter irrational attitudes of the parties. There are several reasons why a mediator faces difficulties while facilitating the negotiation process. For instance, such informal process may not work well in the context of an extreme power imbalance between the contesting parties since the weaker gender, poor and disenfranchised sections may generally be sidelined in the process.  Further, a party often asserts that this is the furthest it can go.

Furthermore, emotional blockage of either parties may encumber the mediation. On the one hand, a cunning party may create ‘tactical deadlock’ while a weaker party, for example a rural woman, talks too long without specifying her real claims. Another common challenge for a mediator is that either party or both may be reluctant to communicate or poor in term of communication skills. Unrealistic and impractical expectations or assessment of other party’s case, ego, pride, desire for revenge often lead the process into an impasse.

When faced with such deadlock in mediation process, a mediator needs to bring pro-active leadership, energy, patience and imagination in helping the parties make progress. This is why it is better for a mediator to prepare well ahead about the facts and circumstances of claims and defence of the parties. A skillful mediator prepares for everything he/she can imagine and be flexible while dealing with unexpected situation.  The golden rule for breaking an impasse in mediation is to bringing the parties on the same platform to acknowledge the situation and talk it through openly.

A mediator should not promptly analyse, criticise or judge the option or attitude shown by the parties. Empathetic attitude and attentive listening create an environment of trust and comfort. In case of poor negotiation skills in either or both parties, it is duty of the mediator to assist parties with framing offers while acting as a conduit for clear and safe communication. Using the skills of ‘paraphrasing’ and using ‘open-ended question’ may help the parties to express the grievance and solution clearly.

In most cases, a human being cannot take decision in isolation of family and society; rather she may be dictated by her in-laws, friends and colleagues. Where strong feelings seem to be blocking full participation of the parties in the process, allowing the emotion to come out can work as a psychological healing to the apparently disgruntled party. Taking a break, so as to allow tempers to cool and give time for reassessment may be effective in most cases to resume the mediation process.

An intelligent touch of humour by the mediator can also ease tension. If required, let them take deep breath and sit back to the present instead ruminating on bitter past. Altering the rhythm of the process by doing something different, changing the surroundings, even sitting arrangements, taking the parties to a short walk may be helpful.

Apart from managing the surroundings and emotion in mediation, a plausible approach is to ‘attack the problem, not the person’. Asking both the parties to make full assessment of future risks - time, money, reputation, if the dispute is not resolved, may set the tune of negotiable settlement. Summarising and reiterating the progress made, rather than allowing parties to focus on the problem and the gap may help. Further, shifting the parties from ‘positional’ to ‘principle’ negotiation will melt the stalemate. Breaking the problem down, dealing with smaller points one by one, can effectively set the momentum in mediation process. A mediator can also try to shift the focus from monetary aspects to see if there are non-monetary elements available to improve the proposed deal. Alternately, reframing issues may lead to different perspective. Reviewing an offer with a party and questioning how it is likely to be received by the other side may be another option to engage the adversary to the process.

Mediation can be profitably used as an alternative tool to contain ‘litigation explosion’ in Bangladesh. Though legal regime in Bangladesh offers a modest framework for alternative dispute resolution (ADR) including mediation, it has been less explored. Apart from creating ADR-friendly legal culture, equipping the mediators with better skills is a must. Finally, sensitising the members of the bar as well as the bench and ensuring active participation of litigant people may streamline the ADR movement in Bangladesh.

THE WRITER IS MEMBER (JUDICIAL), 2^ND COURT OF SETTLEMENT, DHAKA.