By Dhruti Kapadia, Counsel, Solicitor, AOR and Certified Mediator
kapadiadhruti@gmail.com| Aug 30, 2023
INTRODUCTION
Mediators while mediating often encounter racial, cultural and other forms of diversity in their mediating sessions. The essential key points which one must understand, especially mediators, is that during their mediating sessions, they must keep in mind the identity of the parties involved and from which cultural backgrounds they come from.
Human beings tend to evolve based on culture around them and the same is a complex subject to understand and explicate. Culture itself is interconnected with the psychology and personality of an individual. There often are certain cultural differences between the parties involved in mediation sessions which lead to unfavourable results. It is vital for mediators to accept such challenges and inculcate additional skills to assist the parties involved to reach a point where they can freely express themselves, for which a mediator must understand the values and beliefs of the parties involved.
IMPORTANT INGREDIENTS OF A SUCCESSFUL MEDIATION
(A) Sense of awareness
It is important to understand that mediation can never be culture free. It is essential that at the inception of the mediation session, the background, cultural beliefs, values and the mind-set of both the parties should be studied and analysed by the mediator based on which relevant and essential strategies should be made for the mediation sessions. What would and would not be a relevant and appropriate question to ask the parties is to be pre-determined by the mediator as both parties are under the influence of culture, which plays a sociological role in their mind.
(B) Communication Styles
Communication style as a whole would imply an express verbal and non-verbal behaviour flowed out during the sessions of mediation. There are sometimes certain difficulties in direct communication due to the cross culture language barrier. It, thus, becomes essential to cut the gap out and to bring the parties closer by having them understand what the other side is stating. For this purpose, it would be necessary for the mediator to either be a good interpreter or bring one along with him/her, or to have an additional facilitator who would be able to communicate directly with the parties. This would ensure smooth communication between all parties during the sessions of mediation. Unless there is free, fearless and open communication between all parties, the mediation usually fails.
Another core issue having paramount importance which arises during mediation and is expected while conducting mediation sessions is that of parties apologizing to each other. Irrespective of the country or region the parties belong to or how they have been cultured, tendering a heartfelt apology will repair certain grievances faced by either party and will made the mediation session more constructive. The important element of an apology is how sincere the party is with their apology and with the same sincerity, how can the apology be delivered in a most cultured way and in a way that the other party would really feel that the apologizing party has admitted, regretted and has guilted up for the wrong they have committed. In some cases, tendering an apology also satisfies the ego of the other party. The party being apologized to must feel the genuineness of the apology tendered. The very first step is to acknowledge the mistake, to accept it and to express remorse for it, which only requires words like “I am sorry for…..” or “I apologise for…..”.
It is imperative to note how an apology is made. The worst way in which one could ever apologise is by tendering an apology in an impersonal way, without any affection and by just putting an email to apologise. This usually does not work.
In global disputes, different countries and the citizens thereof have their own method and practice on how an apology is made and how it is accepted. These concepts must be borne in mind and practicing mediators must conduct their mediation sessions for resolving disputes after understanding such differences so that neither party gets offended. Both parties must attempt to understand how the entire session is conducted and must bear in mind the traditions and the cultures they belong to and also how they would be expecting each other’s apology. All parties should also bear in mind that no mediation really succeeds without tendering an apology and that the same plays an important role in the success of a mediation session.
CONCLUSION
Apology, in short, is a moral process because it touches the core existence of what is right and wrong and it further confirms that a norm of right behaviour has been broken which is why an apology is necessitated. It is morally and moreover culturally engraved that the person who tenders his apology also then exposes himself to consequences of his wrongful act.
Culture cannot be separated from a mediation session at any point of time because it is deeply and psychologically engraved in every human mind. The social impact and encouragement of maintaining relationships could be a useful and the conclusive point of any mediation session as, in the end if the disputes between the parties get resolved, then every party walks home a winner.
