Author: Tanmaya Sharma
LL.M. in Criminal and Security Laws
Enrolled at Bar Council of Rajasthan, Jaipur
During the past recent years, the evolution of new ways has been seen to solve intermediate disputes between the parties. People’s interest clashes due to difference in opinion or due to any other differences in their operations, and when they fail to reconcile the common ground to work together, they seek the third party to resolve the same. This third party usually and had always been the Court of Law for resolution of disputes. The most trusted and traditional way to resolve any dispute between the parties is through the Court of Law. But the Court of Law being the only resolution for disputes led to the overburdening of the Courts and this created a long and unending chain of cases pending before the Courts. Reports are showing the overburdening of Courts and the number of pending cases in the Courts. Many scholars and the Judicial body favoured the need of the Alternate Dispute Resolution methods to adhere and comply with the working mechanism of Courts. Alternative Dispute Resolution is the concrete dispute resolving mechanism to resolve the disputes between two or more parties agreeing to move to resolve their clash through the Alternative Dispute Resolution methods.
Two parties who are at dispute often fail to resolve their issues due to the difference in culture or difference in interest but when a third party is added to hear and decide the issue, the dispute might settle for good. Third-party resolves the dispute by being impartial and neutral to the interest involved therein. Mediator, who acts as a third party to resolve the dispute has been proved to be effective in problem-solving in many cases. Mediation is a systematic, impartial and neutral party involving an interactive process between two or more disputing parties for resolving the matter of issue raised between them. The third-party, mediator, assists disputing parties by using the specialised communication and strategy for better negotiation to resolve the matter in hand. The process of Mediation involves the parties between whom the issue is caused focusing on the needs, rights, power and interests of the parties and hence, Mediation can be considered as a ‘Party-centred’ method for the resolution of the dispute because it only focuses on the rights and interests of the disputing parties. In Mediation, open communication is being held between the parties for a better understanding of the clashes or issues between them. Mediation is structured and the mediator follows some norms to resolve the issue without any fail and choose a common ground for the settlement.
Cross-Cultural Mediation is the process of solving conflict created or misunderstanding caused between two cultures. Cultural misunderstanding is a much wider term than an individual centred issue and mediation helps to recognise the problem involved and a prudent solution for the cultural parties. Communication is the most faced trouble between different cultural parties and finding an optimal solution in such a scenario is quite difficult. Cross-Cultural mediation is often used to improve the communication, work and the interpersonal relationship of the defaulted parties. Though the norms and working of cross-cultural mediation depends upon some factors that are-
- Whether the parties facing difficulty in finding the problem and optimal solution.
- Desire and disability to resolve the issues raised between the parties.
- Necessity and need for the resolution of the conflict.
- Possible barriers in the way to resolve the dispute.
- Willingness to reach on common ground to secure the interests of one and all.
- All possible ways of a win-win solution.
The Benefit Of Cross-Cultural Mediation-
Mediation in itself has resolved many conflicts and issues raised between the parties. Conflict is part of the human society within or without culture. It is a cyclical and naturally occurring process due to one’s behavioural tendency. There is diversity in everything, just like the diversity can be seen in the conflicts that arise in society, there is diversity in the resolving mechanisms. Globalisation has eased the way out to clear all the conflicting interests by evolving new methodologies such as Mediation is one. The importance of the third party in the conflict is again somewhat debatable as some scholars argue that the best interest of one can be better understandable by one only and inclusion of the third party causes the longevity of the conflict and can distract the actual interest which parties were seeking. There are other opinions as well to the same that the third party makes the interests involved achievable by introducing freshness of mind and various new tools to resolve the conflict.
There are some highlighted benefits of the Cross-cultural mediation, the following are shown under-
- Both the disputed parties have been given Right to be heard, in this way the actual problem can be analysed and the interest can be calculated conveniently.
- Cross-cultural mediation is built upon providing a common ground to provide a win-win solution to both the parties at dispute.
- Cross-cultural mediation is addressed by the mediator who is a neutral third party opted for the resolution of the dispute.
- The cross-cultural mediator helps to resolve the conflict at various stages of various operations, such as the conflict between the co-workers, management and supervisors.
- In mediation, all the factual based information is put down for consideration.
- Cross-cultural mediation is a flexible model to have a resolution. Different approach to tackling different issues is opted by the mediators.
- The purpose of cross-cultural mediation is to have in-depth communication which involves the emotional as well as logical statements leading to a satisfactory solution in hand.
There are many other consequential and related benefits of cross-cultural mediation which gives a clear indication of the utilization of cross-cultural mediation as the best mode among various conflict resolution methods in dispute or misunderstanding of culture. These methods can be utilized in a wide variety even in rigid work frameworks.
Various stages are involved in resolving disputes through cross-cultural mediation easing the way to reach them a better and affordable solution. These stages involve in-depth communication, emotional interests, logical arguments, discussion and narrative, group discussions, collective problem-solving approach, future building solutions, discussions and negotiation, validation of the solution, re-structuring, group reflection, re-balancing. Cross-cultural mediation passes majorly through these stages but this could be used in different narratives such as- i) Individual-level; ii) the reflection, and iii) collective level. Conflicted parties and Mediator(s) discuss to restructure and stabilize the ground to work upon. Although cross-cultural mediation does not provide the complete periphery to every problem on the table it has emerged as a solution to the most unnoticed and untouched conflict of the different cultures. Conflict mediation depends on various elements like disputed parties, conflicting interest, mediator (third party), timing, nature of conflict and at last willingness to resolve it. Some conflicts are easily mediated comparatively to the complex ones. Cross-cultural mediation facilitated the smooth management of the cultural conflicts arising out of misunderstanding or disputed interest. It has a concern about the development of intercultural competence through the acts of tolerance within. Conflict mediation is more than mere communication between two or more disputed parties, it is a presentation of self to others depending upon the knowledge of meeting interest.
There were intense studies for better insight of cultures and their differences within and without. Many scholars and psychologists have studied different cultural psychology and also, experimented with various modes and tools of mediation to resolve their cultural conflicts. Cultural psychology and human activities vary at a wide range making it complex to resolve the issues through rigid old aged mechanisms. Henceforth, cross-cultural mediation has proved its worth in such complex situations.