– Rohan Gulati*
Whilst there has been an upward surge in discussions pertaining to mental health, it plays a critical role in the dispute resolution arena, that essentially remains unaddressed. The harmonious blend of mental health and mediation might seem superficial at a glimpse; however, it might just be the perfect solution to ensure reconciliation between disputing parties whilst safeguarding their mental health. Considering mental health vis-a-vis dispute resolution, the present article seeks to explore, provide a plausible solution, and deep-dive into the interplay between mediation and mental health by analysing the fundamentals involved. In a gist, the article stimulates mediation as an effective dispute resolution mechanism to preserve the mental health of the individual(s).
Disputes are inevitable; however, it is essential to be aware of the right mechanism to resort to for their resolutions, subject to the nature of the dispute. Notably, initiating a lawsuit [against the rival] before a court of law remains a standard remedy. It is perhaps necessary that mental health shall be considered as a pertinent criterion in the dispute resolution process.
At this stage, it is germane to embrace the option of Mediation, not as an ‘alternative’ but rather as an ‘appropriate’ mode of dispute resolution. Entailing a party-centric approach as an added advantage, mediation outlays an informal and flexible forum with a facilitative neutral assisting the parties. It is perhaps a boon of mediation that, in majority instances, it crafts out of the box solutions resulting in a ‘win-win’ scenario. Thus, mediation necessitates a consent based resolution, where the parties are at liberty to decide the outcome, unlike litigation.
At the outset, and since the parties are bound to have an emotional connection amongst them, an individual’s mental health is likely to be affected when the differences surface. Thus, the challenge is mitigating the effect on mental health and certainly not adding to it. The said challenge may be achieved via mediation, rather than adversarial dispute resolution.
II. Fundamentals of Mediation and Mental Health
In order to shed light upon the harmonious interplay of mediation and mental health, it is necessary to perhaps revisit the fundamentals of mediation and contextualise them with mental health. The same are:
1. Neutral and facilitative role of the Mediator: Being a facilitative neutral, the mediator is not akin to a judge or an arbitrator. Incidentally, a mediation process experiences extremely sensitive issues that may pertain to family disputes, workplace harassment, or conflicts among the directors of a company, etc. In such circumstances, the mediator turns into an ally to whom the disputing parties vent out their concerns. Moreover, the mediator is receptive enough to consider the sentiment of the parties throughout the hearing. Therefore, by venting out issues, parties are bound to feel comfortable and experience an atmosphere of reduced stressful, as opposed to a hearing in an adjudicatory mechanism.
2. Confidentiality: Unlike litigation, mediation offers paramount confidentiality and eases stress, as the hearings are confined to the four walls of the room. The mediators are not at liberty to disclose what transpired during the hearing(s). Whereas, the disputing parties are at liberty to discuss sensitive issues, individually and collectively, without fearing disclosure. Therefore, mediation automatically brings in a sense of comfort to the parties.
3. Joint and Private Caucus: Mediation offers a unique procedure wherein the hearing is broadly categorized into two distinct segments viz., (i) Joint, and (ii) Private Caucus. In the former, both the parties and the mediator sit across the table and discuss the issue at hand. Whereas in the latter, the mediator interacts with [both] the parties individually. While a joint caucus gives the position of the parties, private caucus often assists the mediator in understanding the underlying interest of the party and the desired outcome, which the party would not have disclosed, usually, in a joint session. Therefore, these session(s) enable the parties to freely disseminate their grievances and assist in building trust with the mediator.
4. Flexibility: Mediation is an extremely flexible procedure. Unlike courts, the parties are at liberty to decide upon the date, day and place of hearings. Therefore, as opposed to other modes of dispute resolution, mediation assists the parties in potentially reducing burdensome procedural difficulties they might have faced otherwise.
5. Amicable Settlement: Mediation offers one of a kind results at the end of the case. Whereas a court is bound to pass a judgment in favour of one side, mediation, at all times, offers a ‘win-win’ situation. The parties have mutual consent and control over the settlement. Even if both parties are required to take a haircut in their respective demands, in the end, there may be an amicable settlement that underlines the interests of both parties and is less likely to have an adverse effect on the mental health of the parties.
6. Effective and efficient: The fate of litigations in India warrants no primer. There have been instances where cases have lasted for more than a decade. An exuberant amount of litigation expenses and mental agony cause the process to be a bane to the finances of the party. Mediation serves as a fast-track mechanism, with hearings scheduled on a weekly or daily basis at nominal costs. Suffice it to say, mediation is not concerned with the deep-pockets of the parties, rather it ensures a party-friendly approach and is economical.
Whilst mediation has [often] been considered as an ‘alternative’ to litigation, stakeholders often fail to notice and embrace its advantages or booming effects. As a potential downside, mediation might not be preferred by the disputing parties due to enforcement issues, however, each mode of dispute resolution has its own perceived hurdles. Apropos mitigating the effect on mental health, mediation is the most appropriate and sought-after mechanism. Litigation might take one’s mental health for a spin, whereas mediation emphasizes more on comforting the parties. In several instances, parties may have an emotional stake in the dispute, therefore, it is pertinent to dive into the root of the dispute, decode the emotional attachments, and unveil the interest(s) of the parties to gather its essence. Hence, arguably, the beauty of mediation lies in its consent-based approach and as an effective mechanism to keep mental health intact.