Win-win situations through mediation





The art of negotiation or mediation is often taken for granted. People opt to file a case in the court of law against the accused instead of settling differences over a dialogue. It is a process that fosters compromise or agreement thus avoiding an argument or dispute. In any disagreement, individuals understandably aim to achieve the best possible outcome. Sidney Cardoso and Bernard Fernandes, second year students (LLB degree) at VM Salgaocar College of Law, Miramar secured the title of the second best team at the recently held 12th ICC International Mediation Competition at Paris whilst trying to encourage the idea of mediation.

With sheer determination and hard work Sidney and Bernard overcame every hurdle that came their way at the competition. “ICC receives as many as 100 applicants out of which 66 colleges are selected to participate. After successfully getting through the first round there was no turning back. All the qualifiers of the knockout round were tough competitors, of which the New York University was challenging,” says Bernard.

The mediation competition was different from the normal moot court experience wherein law students would have to act as lawyers and solve imaginary cases. Sidney believes that mediation is cost-effective, saves times and keeps both parties happy. “Mediation encourages the practise of sitting together and resolving an issue by talking to each other. Although it is not very well recognised in India, it is picking up popularity. We didn’t have a coach on board but our friends and professors coached and provided us with inputs. Initially, I was a little apprehensive about participating in the competition as we didn’t know how to go about it. But the energy within me boosted my confidence level,” says Sidney. Adding to this Bernard says: “During the process of mediation the clients talk and understand each other’s perspective which is not possible in a court room setup. A negotiation or mediation situation is to ensure a win-win situation for both the clients who are benefited from the final result.”

According to them freedom of speech and expression plays an important role while dealing with pressing issues including that of Medium of Instruction (MoI) faced by Goans. “We have certain freedoms according to article 19 (Freedom of Expression) of the Indian Constitution but these freedoms are vaguely specified. It does not tell you what you can and cannot do. If a dispute goes to court, it is the judge who decides what is right and wrong based on the available evidence. But there are reasonable restrictions to freedom. English should be a medium of instruction and students should be given an option to choose whatever they want. To protect our culture we can make the vernacular language a compulsory subject for students till standard 10; not as a medium of instruction but as a language subject,” says Sidney.

Agreeing with him, Bernard says: “One cannot force someone to study any particular language. The person should have the freedom to choose whatever he wants. Forcing someone will violate article 21 (Right to Life and Personal Liberty) of the Indian Constitution. Studying English gives the person an advantage to communicate globally. The protection of culture depends on the people and not on the Medium of Instruction. One should not forget where they come from,” says Bernard.

Sidney and Bernard want to get the message of negotiation out to the public. “In India we have the culture where people are egoistic and if they have a problem they are not hesitant to go to the court. That’s not how things should be. Negotiation or mediation is the best platform as long as one keeps his ego aside and talks,” says Bernard. He further says that mediation is a solution whenever applicable. “It should be made compulsory to mediate whenever possible as our courts are flooded with cases and it takes as long as 15 years for a case to get closed. Through mediation one can draw a solution within a few months,” says Bernard.

To endorse the concept of mediation, VM Salgaocar College of Law, Miramar has successfully organised two editions of ‘Lex Infinitum’, a mediation competition wherein teams from across India and experts from around the world participated. “It’s a good way of moving forward and to promote the idea of mediation. The competition is annually organised in mid-January or February. As part of the competition experts deliver talks about mediation and discus about how mediation can be advantageous in certain situations,” says Sidney.

It isn’t uncommon to assume that one is good at something and bad at something else, but Bernard believes that everyone is a good negotiator: “If you feel you are not good at negotiation you should read the book ‘Getting to Yes: Negotiating Agreement Without Giving In’ by Roger Fisher and William L Ury which says that ‘Everyone is a born negotiator’.”

Suggesting the best way forward is to apply the idea of negotiation in one’s life, Sidney says: “We need to keep our egos aside and listen with attention and intention to know what the other person’s problem is. If you know exactly what the other person wants, you can provide a solution that makes everyone happy.” Sharing the quote ‘We don’t listen to understand but we listen to reply’, Bernard feels we must listen to understand and not merely to reply.