The team consisting of Nikita Garg, Kshitij Sharma, Saarthak Jain, and Aman Vasavada have won the IBA-VIAC CDRC VIENNA Mediation and Negotiation Competition 2018. They represented the National Law School of India University, Bangalore and were coached by Jake Adams. Saarthak Jain in this interview shares with us his experience of participating in this competition and gives useful tips to the future participants.
How was Vienna?
Amazing! Vienna’s a beautiful city and so is the University of Vienna, where the CDRC rounds were held. And July is the best time to be in Europe. The competition was also extremely fun and very well-organized. So on the whole, it was a great experience for all of us!
How long in advance did your team start preparing for the competition? What did you focus on most?
To be honest, we didn’t have much time to prepare due to our end term examinations and mandatory internships. However, we did discuss the problem thoroughly and practiced through a couple of mock mediation sessions right before leaving for the competition.
Our primary focus was on understanding the factual background of the dispute, and identifying the underlying interests and needs of both the parties. We also anticipated the story that we will focus upon in our opening statements, although this would require modifications based on the confidential information.
CDRC uses a moot problem (Vis-moot) as a general information for all its rounds. We understand that these problems could be fairly long and difficult to decipher. How did you deal with the available material?
Although the Vis-moot problem constitutes the general set of facts, one doesn’t need to go into the intricacies of the problem and the legal issues contained therein. The only relevant portion for the purpose of mediation are the facts giving rise to the business dispute, and nothing more. So for instance, the 2018 Vis problem had an issue concerning arbitrator’s bias which was wholly irrelevant from the point of view of mediation.
Hence, it’s important for participants to read the problem in detail and identify the facts which are material for the mediation session. The four of us sat together and traversed the entire problem, identifying and taking note of the particular facts which could be useful from either side.
Some of the rounds involve discussion on legal issues or procedures that the parties might use when they proceed for arbitration. It is difficult to involve interest-based negotiation strategies in such rounds. How did you approach them?
Yes, such rounds are especially hard to navigate since you don’t know what to expect from the other side. In such rounds, it’s important to keep in mind that the discussion over the legal issue/procedure would not solely lead you to a mediated settlement. There is always an underlying interest/need which has to be addressed for the mediation to succeed. Once that is dealt with, the legal issue can be effectively addressed as well.
As per the format of the competition, a student mediator facilitates every session. Since, the mediators are also competing against each other they might want to interject more often or play an active part in the mediation. Do you think it’s useful if the mediator intervenes? Or would you prefer a passive mediator?
This is a very important issue that you’ve identified. I’ve witnessed and been a part of several mediation rounds that have been a failure due to the mediator’s fault more than anything else. The mediator’s role is to facilitate the process, and not to disrupt the flow. Therefore, it’s crucial that she/he gauges the session’s progress before deciding to intervene. When a session is progressing well and the parties are on the same page, a mediator should keep his/her intervention to the bare minimum. In contrast, a mediator needs to be pro-active when there is a deadlock so as to steer the mediation on the right track.
Most importantly, mediators need to realise that they are not marked based on the amount of time that they speak for. Instead, the expert assessors focus on the quality of the mediator’s intervention and whether it serves a purpose in the mediation.
What would you recommend to the students applying for the upcoming editions of the competition?
I’d recommend all future participants to be meticulously aware of the background facts of the problem before the competition begins. Further, one must be aware of the parameters on which the judging will be based. Thus, you must have a good look at the scoresheet and devise strategies to score well on all those counts.
During the session, you need to be extremely attentive and actively listen to the other parties/mediator. Another thing to keep in mind is the possibility of cross-cultural differences and effectively managing this aspect becomes crucial in such rounds. Ultimately, being present and in the moment will determine your success in the session and the competition.