By: Yadav Rohit
MEDIATION can be defined as one of the alternatives for the Dispute Resolution process, which consist of a precise set of procedures. Where a Neutral Third acts as Mediator and assists the parties to discuss the dispute in much appropriate manner in order to reach a satisfactory conclusion and acceptable by both parties. The whole meeting is held in much confidential manners and also provides the opportunity two both parties to put forth their version of disputes and demands in order to resolve their disputes.
Mediation is also known as extended hand of the law because this process provides various ways in order to reach the solution without being constrained by laws and its long procedures. This process is much more effective if this has been chosen by the both parties to resolve their disputes. Mediation, particularly are not that much into trend throughout the globe not because of being ineffective but due to lack of awareness in the masses and they rely more on the lengthy and expensive court proceedings as the only reliable source for justice.
This process is much into consideration in the modern world and throughout the globe in order to resolve the dispute in various different parameters unless its in public interest. Apart from this effective alternative, there are various significant aspects of this process in order to deal with the number of disputes and the following are:
- Number of parties can engage over one issue or more.
- This can be totally by parties or the courts order.
- Unbiased third parties do assist the parties in disputes.
- Mediators’ suggestions are not mandatory to bind by the parties in dispute.
- Meeting in the process is totally confidential in nature.
- Mediation cannot be accessed in case of Penal and other heinous crimes.
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GLOBAL OUTLOOK OF MEDIATION: Mediation is still not the first priority of the people or country in order to resolve their dispute, and International scenario Mediation faces many problems regarding the jurisdiction of Legislation and statutory provisions and rules pertaining to mediation is much constraint due to the bound law of different countries. In order to overcome this obstacle various International Firms took the initiative to collab with various other International forums and make bridge to provide legal assistance to the international clients according to there norms and condition and laws abiding in the respective country. This gave the great break through to the International Trade mediation and authorised forums used to appoint various mediator lushed with skills in order to assist there disputes and provide vital solution to the parties and charge there fees by the parties in disputes to the firms. In order to make mediation as power full alternative in order to resolve various disputes among the parties are achieved by various International Firms are as follows:
- The International Chamber of Commerce.
- The Singapore International Arbitration Centre.
- International Mediation Institute.
- Indian Institute of Arbitration and Mediation.
It have been noticed that there is tremendous growth of Mediation as alternative dispute resolution in the WIPO (WORLD INTELLACTUAL PROPERTY) according to the recent survey by the authority.
EFFECTIVE MEDIATION STRATEGIES:
There are various strategies used by the mediator in order to provide much efficient advices and suggestions to the Parties in dispute to reach their specific solutions of their issues and the following are some Strategies:
- Procedural Strategies – The mediator controls the agenda, timings, release of press and other essential arrangements and also control the formality and flexibility of the meet ups and this strategy helps to reduce the stress and anxiety of the parties in dispute and provide better space to resolve the conflicts.
In year 2002 till 2004, the Organization of America States, the United Nations Development program and Jimmy Carter opened a Dialogue between Venezuelan President Hugo Chavez Fraiz, the Government and the opposition and the mediation was conducted in order to reconcile the divided society and preserve the democracy while preventing aggressive conflict.
- Communication – Facilitation Strategy helps the mediator to work passively and focusing on facilitating and communication between parties.
- Directive Strategies – In this form of strategies mediator act bit harsh to the parties in order to accept the discussion or the conclusion either by threatening parties with diplomatic sanctions or incentives while being in humanitarian aid.
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MEDIATION AT INTERNATIONAL FRAMEWORK :
Mediation has played major role in various International conflicts throughout the globe and have rich history in order to resolve the Disputes of various countries like Britain, Nigeria and Peru each nation took benefits of Mediation. The Acta De Brasailia was signed in year 1998 to resolve the dispute between Ecuador and Peru. In which Brazil, Chile, Argentina and the United States played a third part role in order to assist both the parties in disputes. The main purpose of the said agreement was to create peace perks or adjacent zones of ecological protection, on both sides of the border in the said region of Cordillera del Condor. In last 10 years, very great example of the mediation with good faith in order maintain the future consequences of the countries lying in historically politically tense Levant region (Syria, Lebanon, Israel, Jordan and Palestine) have been observed by The International Institute for Sustainable Development {IISD} that there can be future security threat of climate change. This research was conducted by the neutral third party in order to conclude and help the avert and dispute may arise from climate change for example of scarcity of water in this region. The researcher analysis the future dispute and try to avail various suggestion and strategies in order to dodge the potential dispute that might arise in historically volatile region. The third party came with following findings and suggestions in order to provide the proper appropriate advices that can be used and avoid the future threat in much efficient mannered and whole process of the research was conducted in much unbiased and informative manner. Sometimes mediators also plays role in order to reduce the tension among the parties in dispute and try to maintain the situation by providing the correct information to both parties by acting as messenger, that helps the parties in dispute to take sensible steps against each other and try to resolve the said issues without taking any adverse steps that can harm to both parties. The example of Nigerian Civil War that took place in Year 1967-1970. In which various great leaders like Quakers Adam Curle, John Volkmar and Walter Martin acted as Mediators and help to maintain the situation and lower down the tension among the parties in dispute, that worked in much effective manner in order to reach down to effective solution that helped to end the war.
SOME EXAMPLARY MEDIATION IN INTERNATIONAL PLATFORM:
IN last year, 46 Nations have signed the International Treaty on MEDAITION in which two great power of economies also participated like CHINA and UNITED STATES, alonf with three and four largest economies in Asia where China, India and south Korea held there meeting in Singapore and led down the foundation of the International Treaty on Mediation. This treaty will provide overall settlement of the disputes among the signatory countries of the Mediation treaty will resolve there dispute through Mediation process in order to maintain the International relation and keep harmony in the International space and this treaty is also known as SINGAPORE CONVENTION on International Settlement Agreement and has been attended by 70 countries Senior officials in order to show the trust and respect towards each other. Still it remains in doubt weather that Singapore convention will get success or not but the actual essence of the agreement will rely mostly on the enforcement of settlement agreements International framework to make mediation more power full aspect and choice in order resolve the dispute by the parties having issues.
UNCITRAL MODEL LAW ON International commercial mediation and INTERNATIONAL SETTLEMENT Agreement resulting from Mediation:
The main purpose of the this designed is to uplift the states and provide them reforming and updated laws in order to make procedure more effective in Mediation and also make provision to standardize the rules and process for reducing the area of doubt during the Mediation. This form will encourage this states in order to take part in this process and ensure to get fair and acceptable solution for the parties in dispute. This model was adopted in year 2002 and was knowing “Model Law on International Commercial Concillation” and was further it have been interpretated that mediation and conciliation can be used interchangeable and further have been noted that the change in terminology haven’t created any and implication on the conceptions of the model. In order to be aware of the uncertainty in absence of the statutory provision, model provide proper guidelines to the mediator in order to follow the sets of rules which will maintain the process standard and relevant.
STATE TO STATE MEDIATION PERSPECTIVE FROM INDIA:
India have shown positive perspective towards the State to state mediation in order to resolve International dispute more effectively other then the rule and laws laid down by the International dispute resolution. They have adversarial system in order to resolve the system. India have shown always positive aspects in order to uses softer technique in order to solve the International dispute rather then using harsh litigation in which there will be more probability of relation get strained between the parties dispute. While being the original member of the UNITED NATION CHARTER, India have all supported and shown policies of pacific settlement of disputes. This policies are mentioned in the constitution of India and also in the International Diplomacy by possessing the principles of PANCHSHEEL and also shown the support to the alternative dispute settlement institution ASIAN-AFRICO LEAHL CONSULTATIVE ORGAINSATION (AALCO). This values and rules provide them amicable and peaceful settlement and also resembles the India’s perspective towards the trade and investment arena in the global market. This leads to door open by the India in order explore new ideas of providing India as a neutral party in the International disputes mostly in the Asia-Pacific Regional Mediation Organization.
OVER ALL ASPECTS OF MEDIATION IN DIFFERENT PARAMETRES INTERNATIONAL CONFLICTS:
In many countries there is uniform pattern in order to mediating the Industrial Disputes. In case of labour management the conflict does not rely totally on the mentioned agreement but also on the machinery to settle the capacity, in many instance the the government provides mediator in order to resolve the disputes. In many countries like US federal government , satte or the local government provides various mediator in order to resolve the issues and also rely on the mediation. Now a days western Europe appoint there mediator in all the Industrial Disputes and labour in order to reconcile the issues in much effective mannered. In many instance the government have made mediator agency buy the government, have been embraced with the power in order to intervene in any dispute which have public interest in it.
EXAMPLES ARE FOLLOWS:
Great Britain in 1825 between Portugal and Brazil: of the great powers in 1868-69 between Greece and Turkey were strained over the Crete and the Pope Leo XIII in 1885 between the Germany and the Spain in dispute of Caroline Island.
Further the importance of the Mediation have been realized by the all international countries in order to reach the solution. In making more further impactive steps towards the Mediation they made in the HAGUE CONVENTIONOF 1899 and 1907 and the league of Nations Covenant. This leads to further in to the Charter of United nations that disputes need to be solved in much peace full mannered and maintain the relationship.
There are many disputes which have been referred to the Mediation by discussing the Council or in the Assembly. In May 1948, The General Assembly have appointed a mediator in order to resolve the dispute in region of Palestine.
In the season of spring and winter of 1949 a mediator was chosen to conclude armistice agreements between the Israel and the other four Arabs countries. Later on The General Council have made mandatory for the Mediation for various disputes arisen from the International outlook and also made mandatory function. The following commission are like Indonesia, commission of India – Pakistan, the Palestine Conciliation commission and the commission of Korea.
The men behind the process to become mandatory was secretaries – general, especially Dag Hammaeskjold, have made great efforts in order to deal with the diplomacy that can be rigid.
CONCLUSION:
As far as Mediation is concerned its been in to practice from several years and played and vital role in order to resolve the dispute and also to provide win -win situation to the both the parties without putting and party unheard and not given opportunity to express their views regarding the issues. The Mediation in international conflicts not only resolve the disputes but also providing of the best way to deal the conflict and global level. Mediation in international have became one of the best way to handle the International diplomacy. This have been encouraged by the all individual, state, nations and other organization to pull out the solution in much efficient mannered and also not allowed any party in strong position to overcome or possessed there dominance in the process.
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