Frequently Asked Questions

How Disagreements become Disputes and People have Conflicts?

Agreement and a consensus are priority for all and appears in the wish list of every individual, but disagreements are not something unknown to human beings. Disagreements can evolve into disputes when communication breaks down, and parties fail to understand each other's perspectives. Misunderstandings, unmet expectations, and emotional responses can all contribute to this breakdown. When people do not communicate effectively or are not able to respect each other's values and beliefs, conflicts can arise. It is crucial to address disagreements early, communicate openly, and work towards finding common ground to prevent conflicts from escalating.

What is Conflict Management?

Conflict management is the process of identifying, addressing, and resolving conflicts in a constructive and effective manner. It involves understanding the causes of conflicts, managing emotions, and facilitating communication between parties. Conflict management aims to find mutually acceptable solutions and prevent conflicts from escalating. It may involve techniques such as Mediation, Conciliation or Negotiation, to resolve disputes peacefully. The goal of conflict management is to promote understanding, restore relationships, and create a more harmonious environment to resolve the conflicts, disputes or misunderstandings. Conflict Management includes prevention of disputes through a well-designed mechanism of decision making and entering vet agreements and contracts.

How Conflict Management is different than conventional Legal process?

Conflict Management is a larger term with a focus on Management of a Dispute or a Conflict. Legal Process too might be an option for the same. The focus at Missing Bridge though prefers and supports only the non-litigating and the non- adversarial approach, and discourages the litigation to the fullest. We at Missing Bridge strongly believe that t legal process attempts to provide JUSTICE where-as through non-adversarial tools like a Dialogue, Mediation and Negotiation, we aim at finding SOLUTIONS, as a win-win for both sides

Is conflict management tools effective for resolving issues before legal proceedings begin?

Short answer is, Anytime is a good time. Since the concept is to resolve the conflict/ disputes, which would either prevent proceeding to legal option or would eventually result in ending the legal proceeding itself, hence earlier the better. The courts too encourage parties to settle their dispute wherever possible hence any of the tools of conflict management be considered even during continuation of a legal proceedings

What are some types of tools to address Conflict Management?

Conflict Management ideally is best addressed through a balanced dialogue and an effective/efficient communication and includes tools like Mediation, Negotiation or Conciliation, being examples of non-adversarial tools and arbitration being the Adversarial tool

Is Conflict Management system synonymous with Alternative Dispute Resolution (ADR)?

Conflict Management is a larger term trying to address the type of disputes and finding a way to solve and resolve the same through options available or to be created. ADR, essentially means tools and techniques beyond the Court/litigation which can assist the parties to resolve those disputes.

In a way, Management of Conflict is the Concept (practiced at Missing Bridge) which requires various ADR tools to achieve its objectives. At Missing Bridge, only non-adversarial tools are adopted and promoted. For anything else, Missing Bridge has the necessary tie ups with Arbitrators, Arbitration Centres and Law Firms apart from Mediators/Mediation Centres. Missing Bridge focuses in the following identified areas

Conflict Prevention
Early warning mechanism
Negotiations
Effective Communication
Stalemates

For more details on these topics, please refer to the Area of Focus section.

Is there a preferred sequence to follow among different conflict resolution tools , and which approach typically yields the best results?

We at Missing Bridge, strongly believe the main ask and need of the parties in dispute remains an amicable solution, which is best discovered through collaborative process, as we help parties engage in discussions, dialogues and/or through Mediation and Negotiation. The situation decides for itself the optimal fit and choice of the tool so required.

Justice is the application of law, basis the facts and the issues involved. Justice leads to right and wrong and ends up creating a winner and a loser even if the issue at hand is a non-legal one.

So, a solution seeker, should go the non-adversarial route, whereas wherever an adjudication is required, and a right wrong needs to be identified, arbitration and courts are the answer.Non-adversarial route helps discover what is right, rather than who is right. It really helps.

Types of conflicts and disputes

The disputes can be categories in the following categories

Commercial or Business Disputes
Workplace Disputes
Environment
Community Disputes
Inter-personal Disputes
Geo-political disputes

What is Mediation and the role, a Mediator plays during Mediation?

Mediation is a flexible, voluntary and a confidential process initiated by the parties to find an amicable solution to their dispute through a collaborative mechanism suitably aided by a neutral called a Mediator. The Mediator’s primary role is to establish a channel of communication between the parties (helping them with the process involved) to enable them to open a dialogue with an intent to understand the ‘issue’ at hand and work towards a mutually acceptable solution. It helps avoid the traditional litigation route and help both the parties to see each other’s perspective to further help them find solutions based on their interests, needs and situation, without anyone thrusting their opinions on them.

So, essentially the Mediator in a Mediation process:

Assists in exchange of information between the parties
Ensures a bridge between the parties through the appropriate communication channel
Inspires trust and confidence in the parties
Helps get the parties’ views across to each other
Identifies areas of misunderstanding and avoids possible miscommunication
Helps the parties keep a positive outlook and helps them see the bigger picture
Helps each other to see the potential benefits in the continuing relationships and thus prevents them from being short-sighted and focuses on the greater good of both
Bridges the gap and helps parties to move from a position of dispute to that of settlement
Explains the relevance of determining ‘what is right’ rather than ‘who is right’

What are the main features / advantages of mediation?

Cost effective & Time effective (parties remain in control of the Mediation process and decide when to call off, if they do not feel comfortable)
Parties remain in charge of the settlement and decide for the one that best suits them (as both need to be satisfied with the outcome)
Nobody can impose a solution without the consent of the parties
Prevents severance of relationships
Focuses on a win-win, through a possible ‘give & take’
Focuses on a win-win, through a possible ‘give & take’
Solutions can be as creative and as flexible / out of the box as possible, totally linked to interests and needs of each side
Solutions may or may not be laid out in a specific law, hence any hybrid model of tangible /intangible is possible.
Parties get a lot more time to go deeper on the real issues involved and accordingly it helps them to see what works in best interests of the relationship
An unbiased & facilitative third party in the form of a Mediator who cannot and does not thrust his opinion but merely facilitates the entire process.
It is a Voluntary process and as such can be discontinued at any stage.

Does the mediator possess the authority to make binding decisions on behalf of the parties?

NO, the mediator does not make any decisions on behalf of the parties and neither does he impose his will on them. The mediator by his very position is an unbiased professional and is the third party who is a neutral and without any investment in the final settlement. His role is to facilitate a communication channel between the parties and not pass any awards, orders and judgments like a Judge or an Arbitrator are expected to do. He is not expected to have his personal views and opinions influence the mediation process or affect the decision of either party. None of the suggestions so made by the mediator are binding on either of the parties.

Is there a recourse if one is dissatisfied with Mediation?

In case you are dissatisfied with the Mediation process, you may discontinue at any stage and choose to go down a different route of dispute resolution which can be that of litigation, arbitration or any other mode available to you.

What is the difference between mediation and arbitration and how does one choose one over another?

The primary difference between the two is that in an Arbitration, the arbitrator considers the legal rights and wrongs of a dispute and makes a decision and then passes an award which is binding on the parties. The award is both enforceable as a Court Decree and challengeable as per laid procedure. Arbitration is just a private court. Arbitration is governed by the Arbitration and Conciliation Act 1996, a formal statute.

In Mediation, a Mediator does not possess the authority to impose a decision. The parties are in control and mutually reach a settlement which is suitable to both. The settlement agreement (as it is called) as a result of a successful Mediation, can have any shape, format, sequence or terms as the parties require, till the time both the sides are comfortable with them and are willing to adhere to the agreed terms. Accordingly, the agreed terms are reduced in writing and are signed by both the sides along with the Mediator as a matter of record and, continue to be confidential.

Mediation is better suited for you if you prefer greater flexibility and an informal setting allowing you the space, freedom and opportunity to make your own decisions and come up with solutions in creative and unorthodox methods where ordinary and orthodox ways have failed or would have a handicap in providing something more fruitful suiting the context.

Is Conflict Management system synonymous with Alternative Dispute Resolution (ADR)?

In a way, Management of Conflict is the Concept (practiced at Missing Bridge) which requires various ADR tools to achieve its objectives. At Missing Bridge, only non-adversarial tools are adopted and promoted. For anything else, Missing Bridge has the necessary tie ups with Arbitrators, Arbitration Centres and Law Firms apart from Mediators/Mediation Centers. Missing Bridge focuses in the following identified areas

Conflict Prevention
Early warning mechanism
Negotiations
Effective Communication
Stalemates

For more details on these topics, please refer to the Focus Area section.

Is there a preferred sequence to follow among different conflict resolution tools , and which approach typically yields the best results?

Justice is the application of law, basis the facts and the issues involved. Justice leads to right and wrong and ends up creating a winner and a loser even if the issue at hand is a non-legal one.

Types of conflicts and disputes

The disputes can be categories in the following categories

Commercial or Business Disputes
Workplace Disputes
Environment
Community Disputes
Inter-personal Disputes
Geo-political disputes

What is Mediation and the role, a Mediator plays during Mediation?

So, essentially the Mediator in a Mediation process:

Assists in exchange of information between the parties
Ensures a bridge between the parties through the appropriate communication channel
Inspires trust and confidence in the parties
Helps get the parties’ views across to each other
Identifies areas of misunderstanding and avoids possible miscommunication
Helps the parties keep a positive outlook and helps them see the bigger picture
Helps each other to see the potential benefits in the continuing relationships and thus prevents them from being short-sighted and focuses on the greater good of both
Bridges the gap and helps parties to move from a position of dispute to that of settlement
Explains the relevance of determining ‘what is right’ rather than ‘who is right’

What are the main features / advantages of mediation?

Cost effective & Time effective (parties remain in control of the Mediation process and decide when to call off, if they do not feel comfortable)
Parties remain in charge of the settlement and decide for the one that best suits them (as both need to be satisfied with the outcome)
Nobody can impose a solution without the consent of the parties
Prevents severance of relationships
Focuses on a win-win, through a possible ‘give & take’
Solutions can be as creative and as flexible / out of the box as possible, totally linked to interests and needs of each side
Solutions may or may not be laid out in a specific law, hence any hybrid model of tangible /intangible is possible.
Parties get a lot more time to go deeper on the real issues involved and accordingly it helps them to see what works in best interests of the relationship
An unbiased & facilitative third party in the form of a Mediator who cannot and does not thrust his opinion but merely facilitates the entire process.
It is a Voluntary process and as such can be discontinued at any stage.

Does the mediator possess the authority to make binding decisions on behalf of the parties?

Is there a recourse if one is dissatisfied with Mediation

What is the difference between mediation and arbitration and how does one choose one over another?

What incentive would someone have to opt for Mediation over Litigation if one has a clear winner at hand?

In case you are absolutely certain that you have a clear and winning case and the other party is in the wrong, opting for Mediation still has an undeniable upside, i.e. it helps in saving, salvaging and preserving relationships by allowing the parties to work out their differences privately and amicably without any public embarrassment and humiliation for either of them. Frankly, it also cuts out on the uncertainty of the litigation process, which at times can surprise any side.

We have seen Mediation Process getting over in matter of no time, when one party is able to convince the other about his perspective, his being right /fair and the other party accepting the same. All this ably supported by the Mediator. In any case, as suggested earlier, the process can be stalled/terminated at any time and one can go back to the other best alternative at hand. This process be used to ‘be better off’ than just be proven right.

Is there a role for a Legal Counsel of any party in Mediation?

Yes, surely, a party inspite of having knowledge about Mediation might still expect some assistance from his legal counsel, either for an advisory support or to ensure that his legal counsel remains in the loop, should there be a requirement to explore other alternatives for the issues that remain unresolved post Mediation.

Mediation does give the legal professional the opportunity to expand his area of expertise to domains of dispute resolution other than litigation.
He can counsel the parties by giving them useful insights just like he would in a court proceeding, only this time he will be doing this outside the courts and in an informal set up
Lawyers can charge accordingly as they help their clients settle their disputes expeditiously and efficaciously. After all there is nothing better than a satisfied client.
Lawyers are well equipped to deal and assist with dispute resolution. Since mediation is not rigid in its process, lawyers too, get the freedom to devise creative solutions for their client’s problems.

What if the mediation process is non-conclusive?

In the event the parties are not able to mutually agree on a solution and no settlement is reached, all other options of dispute resolution remain open to them, which were there, prior to entering the Mediation process. An attempt to Mediate does not dilute any of the other options

What is the enforcement procedure for the mediation agreement in a private mediation?

Ideally, since the parties themselves have decided on the agreement, there is normally no requirement to enforce it, because that is a voluntary exercise and each party agrees to adhere to his part of the agreement and is aware of each other’s role in the resolution. The process would not be over in case any party feels uncomfortable with the other side.

In any case, after the settlement is arrived between the parties, the same is reduced in writing and is signed by all the parties along with the mediator and it becomes a binding contract for both the sides.

In case where, it can lend more credibility to the concept (if so required by the parties), then the process is followed in such a manner that the Settlement Agreement is given a shape of an Award and the same as per Sec. 74 of the Arbitration & Conciliation Act has the same status and effect as that of an Arbitral award.

(If the disputed case is pending in Court, the settlement terms are also filed in Court for approval and a decree is passed, which is final and non-appealable.)

How to convince the other party to resolve disputes through mediation?

If you are interested in mediation, we @ Missing Bridge, will advise you on how to contact the opposite party. We at our own level will also try to get the other side to the table. After all it is a team effort, and everyone stands to benefit from the process.

But the process remains voluntary and no one can be forced to agree to Mediation. Just that the maximum benefit of Mediation is at a pre litigation stage, where the damage to relationship can be better contained. But an amicable process can be and should be used/tried out at any stage of dispute (even if a dispute is sub-judice, permission of court can be sought to explore mediation)

Is the mediation process secure and confidential?

Mediation process is strictly confidential and no such information, trade secrets, sensitive communications, documents, and other materials leave the room without a prior explicit written permission of the disclosing party. To reinforce this, all the parties sign a Non-Disclosure agreement which clearly classifies what all constitutes Confidential Information.

No such document or information which is made privy to the parties during the mediation process can be used against the disclosing party in case the dispute is taken to courts unless such information or document is available to the party outside the mediation process and further, the mediator cannot be summoned to a proceeding in the court to testify for or against either party.

When does and where all one requires Mediation Services?

Mediation is also understood as an “Assisted Negotiation”, hence it needs to be seen in a broader context where, the use of Mediation Techniques does surely help the parties in finding/discovering amicable solutions, but there are many other areas where the techniques can be and are being used, like, to avoid potential dis-agreements and disputes, to improve the deal making, to strengthen the dispute resolution clauses, to take care of eventualities even while drafting of contracts, Joint Venture Agreement’s and other similar agreements. Hence, to have a Neutral in an Investor Meet, a Board Meeting, other stakeholder meetings (like Lenders and Borrower Meetings, Committee of Creditors Meetings under CIRP (IBC) is of great importance. He can be consulted for a potential issue or can be there just as an OBSERVER. If required, he can share his observations/views in the following scenarios.

- whenever there is a likely disagreement amongst the participants on an issue,

- when he is asked to share a fresh perspective on an issue.

The objective being to get an unbiased, balanced view and a fresh perspective from a neutral so that an informed call can be taken with regards to a contentious issue.

Does a Mediator has a role while entering contracts?

When entering a contract or an agreement with regards to starting a business / any other contractual relationship, it makes sense to engage a Mediator where the Mediator dons the hat of a Negotiator and helps avoid potential conflicts by pre-empting the issues which can become the sore point in times to come as the relationship evolves.

Role of the Mediator is to help parties see the bigger picture, ways of increasing the pie for the benefit of all interested parties, ensuring that both sides see the other side’s perspective and are able to extract the maximum from the relationship for mutual benefit without leaving any value on the table.

Who all stand to benefit from the Mediation / Negotiation?

The types of disputes and stakeholders for whom these services are helpful are as follow:

For Dispute Resolution through Mediation

Business Houses / Corporates – (for disputes arising out of Commercial Contracts, Joint Ventures, M&A, etc)
Investors – Investment Agreements
Employment Disputes (from perspective of Employers / Employees)
Family Disputes (Property, Relationships, Succession, etc)
For Effective Negotiation Support

While drafting Contracts/Agreements relating to:

Commercial Contracts / Relationships
Joint Ventures
Merger & Acquisition
Builder Buyer Agreements, etc