Mediation ( A deliberation of lecture given on the subject on Mediation Process by undersigned Advocate as administered in India at World Parliament Experiment in Bonn( Germany) on 25th feb. 2008) What is mediation? This question may agitate your mind. Negotiation seldom works and litigation begins between parties. Mediation facilitated negations between two people. It is an integrated and distributed bargaining, when no individual meeting of mind are feasible. It is confidential and a non verbal communication of desire. It uses the language of silences. A desire for conveying the pre mediation option begins, as the functioning of the Courts are adversial in attitudes. The hostilities between people are more propounded. There is no method to control the behavior of litigants, except by observation of some indifferent attitudes of attachment with detachments. Society may play a prominent part in mediation. It may compel the parties to resolve the dispute, in case minor scuffle begins on the issues of wrong driving of vehicle by a cyclist. The people support the version of the weaker side as they themselves belong to downtrodden class and they may have internal prejudice against the vehicle owner, but a mediator may have nothing against car owner or pedestrians, as he as a mediator has given up this carnal desire of internal prejudice by the passage of time of experiences. Mediator has to expose the unclear underlying core dispute of hostility. He has to break the Impasse. He has to gather information regarding reluctance. Than a trust is build and support start. He should control the command of process and find out an opportunity to suggest. In matrimonial disputes, one should study the problem underlying between the husband and wife. There is unrealistic situation of human behavior between man and woman. Man by nature is dominating to pacify his biological lust, while woman try to get a command over psychological sphere of trust, which she may seldom get out of the schedule of working partners. This is the betrayal of relationship. Those women, who are exertive in nature and are more adamant, may loose the battle. Similarly if the male partner is more authoritative, the family relationship may come to an end. Thus, we may identify the problem from this angle by reposing the confidence in both the sides. Sometimes, the business disputes are underlying beneath the curtains and a mediator has to tear out the veil and to expose the reality of the truth. They are adamant to resolve as they are unrealistic in their approach. A mediator has to listen to stake their claims. The first step is silence and to listen them patiently. The casting of the issues, designing a solution, negotiating with options, motivation, confidence, optimistic, artistic venture, inculcate mind, unrealistic expectations, proper analysis and flexibility by derivations to repose a faith in mediation instead of adjudication with uncertainty of the outcome to the parties may solve the problem of impasse between the litigants. One has to find out the problem first. People are in such a haste to resolve a dispute as they seldom identify problems and start fighting on non-issues based conflict. Sometimes, there is solution in the problem. One may have an art to identify it and to place it in correct prospective. Mediator has to build a golden beach with pure water to take a dip inside there and then they may live in one cottage. There is no scarcity of the product. One has to arrive to an agreement. Mediator has to exercise his wisdom with full creditability for his position. He should avoid fault finding tendency. After all, he is negotiating between two individuals. Men seldom control their periodical outburst. Let the parties may cry and blame each other. Mediator is a motivator to pacify them. Thus, the exchange of information gathered through negotiation must be hidden. One may provide an obstruction in the process of mediation and as such the dispute may resolve quickly in order to avoid obstruction in the process. Sometimes, break in the process is required by shuttle mediation. Confidence is the beginning of the trust otherwise the agreement of the minds of the parties may not arrive. The agreement may be efficient and capable of being enforced. Mediator may tender his apology, if required after indulging himself in the problem of the parties, without looking to the individuals. The body language and his optimistic attitude towards the eradication of the problem and personal warming of the parties by the mediator, like a mentor, may win their consent to an agreement. Even if he does not share with their views but problem must be appreciated. Second thought may be invited from the parties. The obligations to pay and repay must be encouraged on ethnic compulsion. Encouragement like recital of holy sermons of Gita by Lord Krishna, embracing rejection may be the guiding factor during mediation. It is not critics, who bound, credit is given to the man, who is in the arena to meet efforts. Mediation is the type of work, very challenging with responsibility for deliverance from a state of disharmony to the state of harmony. Mediation is rewarding in the skill of interactive workshop. It is a dispute resolution process. There is the difference between mediation and conciliation. It has got the different pursuit then arbitration. In the process of conciliation, conciliator is viewed as authority and his discussion is limited to the tradition limited right. In arbitration there is no bargaining and he controls the out come of the dispute resolution process. There are the rules of evidence and burden of proof and enforcement of award. Thus mediation is better than conciliation and arbitration. The process of “Mediation” has got more independence and less interferences from other outside agencies having the transparency and self restriction upon the traditional Anglo- Saxon- Jurisprudence of strict observation of locus- standee and rigmarole of technicalities for adjudication of the dispute and since the decision arrived is of the parties within the periphery of permissible limit under due process of law, one feel better satisfaction towards performance of its functioning. After all litigants have their own choice in the matter of their selection of a “Mediator”. It is an identification of mind as an independent personality as the tenability to enter into harmony and oneness is resulting in mental and physical suffering. The sense of obstruction and disappointment may lead towards disintegration of society. Pessimistic approach, the energy gets deplete, object conscienceless leading to a state of starvation and one’s Consciousness. Gita says ‘he whose mind is not shaken by diversity, who does not hanker of the pleasure, and is free from attachment, that meets with everything good or bad, neither rejoices nor hates his wisdom is fixed’. The crucial conditions are still having their predominating conditions in the legal profession. This is on account of their non- adaptability in the profession by such fundamentalist elements, which provide the top priorities to the conservative approach instead of liberal out look towards them. . The unfortunate, who have the better experiences towards the problems of life, are put to the disadvantageous situation. Justice is a virtue, which transcends all barriers in the way of administration of justice. The credibility of the judicial institution is founded upon the faith of the common man in its proper functioning. The law has to bend before justice. No court can restore the broken heart of the justice and he should provide such protection, which is necessary for them like dutiful parents. The decision may not be repugnant to the normal concept and the basic unit of the society may not be allowed to be influenced by immorality. Thus the ultimate responsibility is by enunciating the foundation of a system on which administration of justice may get the public confidence in our judicial system. The mind of a person have steady wisdom and he is not to distressed calamity, he is not affected by the afflictions arising form thunder, lightening, storm, flood etc., and fear arising from the venomous and ferocious. When he is pleased in an affluent condition, he does not long for sensual pleasures. The body with the controlled mind possesses pious understanding or evenness of mind. He does not rejoice in pain that may be fall on him. He has life or body as he identified self, being routed in the self. He will not praise any body when later does any good to him nor sensor any one when one does him any harm. For when a man thinks of objects, attachment form desire is born, from desire anger arises, form anger comes delusion, form dilution loss of memory, form loss of memory the destruction of discrimination, form distraction of discrimination, he perishes as he is swept away by impulse of passion and emotion and he will act irrationally. One has to abandon all desires in the world be free form attachment an latent impressions doing everything out worldly and thus playing one’s part in the world. He has to cut the bond of attachment form all sides, by the sword of knowledge. He should to play with life and should be loyal to ideals and must spiritualist out his thoughts, emotions and actions. Soul require solitude, In order to get peace mind has to become calm. The physical existence must be free form all thoughts daily for sometime and furring the period of wisdom dawns. Thought mediation, one may study his true and realise he as spirit of freedom, spirit of unity, spirit of immortality. Live in truth by becoming truthful; love all, for love is unity, by reflecting upon thought. The man bondage may perpetuate slavery, Beware of lust, greed, anger passion hatred, jealousy and the unlimited wants of five senses. They are enemies. There is no spiritual knowledge without love. Spiritual realisation automatically makes us love every body. Truth and universal love raise us to a spiritual status and we can see the divine life. This is the highest vision which comes when he realise God in his heart and surrender himself completely to him and there by wiping out his ego sense. Purity truth and Constant remembrance of God comes by practice and in pure mind otherwise passions will create havoc. Desire move the sense, Tapas cuts the senses and annihilates desires. Tapas. is worship meditations. Thus the path of spiritualism is meant for controlling the bondage of. In this manner there will not be required by thought control nor the restrictions can be imposed upon such individual who has given his oneself to the swept of impotent without feeling any discontentment by the swept of impulsive notions. This is required for the rectification of prevailing maladies in the society. I consider that these message is one of the best exercises to adopt in mind before attending the session of mediation. These glorious traditions may provide smooth function in process of “mediation”. “what you are is god’s gift you, What you become is your gift to god”. “The route you take depends on the decision you make”. Keep in your mind-: (1) Is it the truth? (2)Is it fair to all concerned? (3) Will it build goodwill and better friendship? (4) Will it be beneficial to all concerned?. In this process, one has to adopt these introspection in your Characteristics of human behavior.1. The most selfish one letter word. ‘i’, avoid it.2. The most satisfying two letter word. ‘ we’ use it.3. The most poisonous three letter word. ‘ego’ kill it.4. The most used four letter word. ‘love’ value it.5. The most pleasing five letter word. ‘smile’ keep it.6. The fastest spreading six letter word. ‘ rumour’ stop it.7. The working seven letter word. ‘success’ achieve it.8. The most enviable eight letter word. ‘ jealousy’ distance it.9. The most powerful nine letter word. ‘knowledge’ acquire it. Sincerely yours Yogesh Kumar Saxena, Advocate, High Court, Allahabad Ex. Vice President, Advocte’s Association Trained Mediator of the first batch of Mediation Team Registration No. 946 of 1974 ( U.P.Bar Council of Allahabad) Special Counsel in Ganga Pollution Matter. Executive Member, World Parliament Experiment (Bonn) Germany 22nd Feb. 7th March 2008 International conferences of Chief Justices of the World (Co Coordinators and Co- Organizers) at City Montessori School, Lucknow
Yogesh Kumar Saxena, Advocate, High Court, Allahabad, U.P. Vice President, Advocate’s Association, /Hind Kishan Sangthan,/ All India Lawyer’s Association, High Court, AllahabadEthical value in scientific invention versus Law and society The principle of science is discovery than what is the doctrine of any social framer of our society. There is inherent conflict between the principle of society, which is of continuity and conservatism and that principle of science, which brings about invention and challenge to conservation. Thus we have to invent a delicate balance; as science seldom has the facilities that it deserves accept when misfortune comes, while the society is inclined to protect conservation. Can in such curiosity ,invention and exploring the unrest, any society may be protected without enforcement of Rule of Law in the Society?. The History of man has always been characterize by enduring and attempting for exploration of new frontiers, in reaching out to new environment and to built understanding with the Nature. The frontiers are control by intellect and capability, which is motivated to explore the unknown mystery. Challenge to excite the intellect creates devise new techniques, new instruments and new approach to unknown area of Nature. Thus the problem relating to the vital force of science in relation to the society always remain the same. Creativity is the sign of invention. Enthusiasm leads to ambition. Thus instability becomes the condition of mind, which is never pacified in isolation. Thus search for the new dimension and to realize its effect upon curiosity is the desire of an individual. There is the secretion of male Harmon due to the biological factors, which governs the activity of the mind of the criminal in commission of sexual crimes . Thus the mind of such criminal to has got the learning in a sex starved society; in which the man has no respect for women. This stimulate them to indulge for committing an offence of sexual assault upon women. The society provides a check upon it through law enforcement agency and simultaneously maintaining the balance to the individuals liberty. The ratio of the fear upon the psychology of an individual person is having a vital role to preserve the society from Commission of a Crime. The recent incidents of committing the rape, in Budha Jayanti Park of a girl student of Molana Azad Medical College, at Siri Fort Auditorium with Swiss Diplomat, with a Foreign Tourist in Goa and also the attempt upon Lady assistant Film Producer in New Delhi during Film Festival, has atleast provided introspection upon our legal system. Although many incidents of the rape committed with the women remain unreported due to the stigma upon her character and dignity of the family of the victim girl, as there is no protection to the women in the society. The legal system in India stinks. The victim is shamed. The evidence is tempered with. Experts are persuaded to change their mind. DNA samples and viscera are tempered in the science laboratory thus the judicial system is a mess, which insults a woman’s dignity and perpetuate sexuality more quickly and punished her more hardly than the punishment provided to the culprit of the crime. Thus without giving spontaneous punishment to the culprit, we can not ensure the dignity of the women and as such there will be damning indictment of the state of law and order in the society. The structure of the society due to obscene western visual media, information technology, infra structure has gone through vital change and thereby it has become less conservative and more flexible. This transformation from a rigid traditional structure and the growth of scientific culture is not only reproducing the economic change, but also the having the change in social and ideal condition of the living standard of his society . There is a rape victim at the intervening period of every three minutes in New York , USA . The reason is anonymity and melting pot for the entire globe. New Delhi is ghastly converting this culture and their has been new method, technique and the invention of new infra structure to kill the basic instinct of an individual. Thus our cultural heritage is not preserve with the modern scientific temperament and western environment .In the Indian condition, where there is no surety of life and virtually there is no punishment for a criminal, how dignity of the women may be protected. Simply by the enforcement of law and order by maintaining a delicate balance between the personal liberty and crave is there for liberation from the bondage of the women, the crime cannot be put under control. There is no other system enforceable accept the imposition of self introspection upon our basic instinct of liberty and freedom. The existence of scientific culture, the economic change and new technology has provided the necessity for social change ,there is no protection and guarantee to the people regarding their Fundamental Right to Work, Right to Education and Right to medical assistance by the government of India. In absence of these rights, the creativity as the basic desire of the scientific temperament simply converts an individuals for psychological diversification to try the impossible, which is not try by the other individual. In search of this objective in life one may easily divert him to pacify his basic instinct by committing some kind of crime. This is a law less society. Here is no fear in the mind of a criminal. Thus the thought are conveyed not merely as an ideological or philosophical discourse but in a prospective destruction of the various values and traditions of the society. Let us have a confrontation with the scientific temperament and that of infra structure for modern civilization with the Scientific invention. The electron was discovered and within a decade, the first electronic valve, the triode, was invented. The solid state device of transistor was invented giving rise to the birth of solid state electronics. Ultimately the electronic circuit incorporated the tinny chip of silicon, which converted into the possibility of the modern computers and space technology. The field of electronics has grown up in an explosive fashion with communication equipment, while the nucleus of the atom through the phenomenon of nuclear fission has wiped the cities of Hiroshima and Nagasaki in Japan. Thus, on one hand, if you want to take the advantage of modern computers and other electronic equipment, than on other hand, we may also face the destruction of the human civilization. If the energy in the sun and in the stars is used in destructive form, it may vanish the entire civilization. Thus, in absence of any introspection to the growth of civilization being tackled with our traditional cultural heritage, we may not stop these fundamental changes in the society. Thus the crime, to the society and upon the dignity of the women, has to be seen in the light of social conscience of scientific invention with the conservative integrated approach through meaningful education and spirit of nationalism in order to control an explosive situation. This can only be tackled by accountability of the law enforcement agencies and by reductions of the disparity in our society. If It is not checked with an iron hand in a very short duration, this may convert the entire world in a lawless society.
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