Authored by - Ms. Pragya Sharma
Designation - Arbitration Associate, Miles Mediation and Arbitration
I. Introduction
Enormous courtrooms encapsulated within the majestic walls of the Hon’ble Bombay High Court. Profusely sweating attorneys, frustrated clients and an experienced judge with hundreds of matters on his docket. The courtroom which was empty and quiet up until 10:30 AM, is now overcrowded, filled with bags of briefs and buzzing with emotions of fear, anger, angst, adrenaline and excitement. This is a typical day in the life of practicing advocates struggling to win motions for their client. In contrast, a conference room with lightly colored walls, calm attorneys, appeased clients and a neutral facilitator with the sole intention of resolving the conflict with the parties; is conventional to mediators and mediation advocates.
The role of mediation in revolutionizing the domain of conflict resolution has been monumental. In order to better understand its impact, it is imperative at the outset to define the concept of mediation. A “process of assisted negotiation in which a neutral person helps people to reach agreement”[1] is mediation. The process of mediation is unique, and constantly “varies depending on the style of the mediator, the nature of the dispute, and the wishes of the participants”[2].
His Lordship, the Hon’ble Justice N.V. Ramana, the Chief Justice of India, in his keynote address at the India-Singapore Summit 2021 traced back mediation as a primary method of settlement in India, to Mahabharata, wherein Lord Krishna attempted to mediate a settlement between the Kauravas and Pandavas[3]. Since trading was a predominant occupation in India from the thirteenth century, disputes amongst the traders were resolved through regulatory bodies established by merchants. The majority of India’s population resides in villages, “and Panchayat makes up a very important part of the village-based dispute resolution system”[4]. However, the establishment of the courts system in 1775 by the British eroded community-based indigenous dispute resolution mechanisms in India[5]. Mediation has been deeply rooted in Indian ethos. In fact, Ramayana, an epic battle between Lord Rama and Ravana serves as an exemplary yet unfortunate example of failed mediation which resulted in a war, loss of several lives and plentiful resources.
This article seeks to analyze the role of Hanuman as an acting mediator between Lord Rama and Ravana, suggests the ideal mediator that ought to have mediated the dispute between Lord Rama and Ravana and lists down the procedural aspects of the mediation to be conducted between the parties. Furthermore, the article examines terms and conditions of a mediated agreement between Lord Rama and Ravana, if the conflict had been resolved through alternative dispute resolution.
II. Factual Background[6]
Dasharatha, King of Ayodhya and had three wives and four sons: (a) Lord Rama, the son of Kaushalya, (b) Bharata, the son of Queen Kaikeyi, and (c) Lakshmana and Shatrughna, sons of Sumithra. Sita, the princess of the neighboring kingdom, Videha during her swayamvara ceremony chose Lord Rama as her bridegroom. A few years later, when King Dasharatha decided to give his throne to Lord Rama, Queen Kaikeyi was disappointed since she wanted Bharata to rule. In view of his oath to Queen Kaikeyi, King Dashratha was obliged to banish Lord Rama to exile in a forest, Panchvati, for fourteen years and crown Bharata as the king of Ayodhya. Sita and Lakshmana willingly decided to join Lord Rama during his exile.
During their exile, Lord Rama and Lakshmana encountered Surpanakha, a demon, who vilely attempted to seduce Lord Rama. However, Lord Rama, in devotion to Sita, refused Surpanakha's futile proposal. Enraged, Surpanakha attacked Sita, at which time, Lakshmana, charged at Surpanakha and sliced her nose.
Infuriated, Surpanakha returned home to her brother, Ravana, the ten-headed ruler of Lanka. In retribution for his sister, Ravana abducted Sita and fled with her to Lanka. Upon discovering that Sita had been kidnapped, Lord Rama and Lakshmana commenced their journey towards Lanka. On their way, they sought help from Sugriva, the king of the monkeys. Hanuman, the General of the monkeys and the son of God of Winds, Vayu, offered his assistance to scout for Sita in Lanka. Upon flying to Lanka, Hanuman found Sita in the grove captured by Ravana and provided adequate assurances to her that lord Rama would save her at the earliest. However, Hanuman was caught by Ravana’s soldiers and brought before Ravana.
Thereafter, Ravana questions Hanuman to find out about the purpose of his visit, to which Hanuman responds that he was in Lanka to free Sita from Ravana’s grove. Hanuman further tried to reason with Ravana that his act of kidnapping Sita was unlawful, disproportionate and heavily consequential. However, ignoring Hanuman’s wisdom, Ravana lit Hanuman’s tail on fire, who in turn, escaped and set Lanka on fire.
Consequently, Lord Rama, Lakshmana and an army of monkeys led by Sugriva and Hanuman built a bridge of stones across the Indian Ocean. A war erupted between Lord Rama and Ravana, eventually leading to Ravana’s death, unshackling Sita from Ravana’s confinement and Lord Rama’s return to Ayodhya as the rightful heir to the throne.
III. The Dispute
Several conflicts that arose in Ramayana, be it when Lord Rama was exiled to Panchvati on Queen Kaikeyi’s plea to King Dashratha or the battle between Sugriva and Bali for the throne to rule over the monkeys, could have been resolved through mediation by a neutral party, and resulted in saving resources, lives, costs and time.
This article shall analyze and evaluate the purported mediation of the dispute between two parties, namely, Lord Rama (on behalf of himself, Lakshmana and Hanuman) and Ravana (on behalf of himself and Surpanakha), wherein the following facts of the conflict are relevant:
(a) Consequent to Shurpanakha attacking Sita, Lakshmana lacerated Shurpanakha’s nose;
(b) Upon Shurpanakha’s complaint, Ravana abducted Sita;
(c) Lord Rama requests Hanuman to fly to Lanka and search for Sita;
(d) Hanuman reaches Lanka, and locates Sita in Ashok Vatika sitting all by herself;
(e) Ravana’s soldiers capture Hanuman and presents him before Ravana;
(f) Hanuman, as a mediator, attempts to reason and rationalize with Ravana of his actions, and warns him of the consequences that he would face; and
(g) The complete burning down of Lanka by Hanuman, consequent to Ravana setting his tail on fire.
As of today, representatives of Lord Rama and Ravana have agreed to refer the conflict to mediation, and in such an event that the process of mediation fails, respective parties will wage war against each other.
IV. Interests of the Parties & Issues
(A) Interests of the Parties:
In order to evaluate and analyze the efficacy of mediation in settling the dispute between Lord Rama and Ravana, it is imperative to understand the underlying interests and emotions of the parties:
(a) Lord Rama: Having been exiled to Panchavati by King Dashratha, Sita and Lakshama’s support was indispensable to Lord Rama. Sita’s abduction to Lanka by Ravana led to Lord Rama’s journey towards Lanka and his alliance with Sugriva. In the present dispute, Lord Rama’s interests involve (i) Releasing Sita from Ashok Vati under Ravana’s capture; (ii) An apology from Ravana for abducting Sita; and (iii) An apology from Surpanakha through Ravana for attempting to attack Sita.
(b) Ravana: As the King of Lanka, devotee of Shiva and brother of Surpanakha, Ravana was faithful and committed to her. To avenge his sister’s injuries inflicted upon by Lakshmana, Ravana decided to kidnap Sita and escort her to Lanka. The primary interests of Ravana in the instant conflict are (i) An apology from Lord Rama and Lakshmana for attacking Surpanakha; and (b) Compensation from Lord Rama for the pecuniary losses incurred by Lanka due to Hanuman’s actions.
(B) Issues involved in the present Dispute
Prior to the commencement of the process of mediation, it is exigent to lay down the issues that have arisen between parties, to determine the skills and experience of the mediator that shall be appropriate to settle the dispute between Lord Rama and Ravana:
(a) Whether Lakshmana’s attack on Surpanakha, to protect Sita was proportionate to the attack and justified?
(b) Whether Sita’s kidnapping by Ravana, to avenge Surpanakha, was proportionate to the attack and justified?
(c) Whether Hanuman’s act of burning down Lanka was justified?
V. Choosing the Ideal Mediator
In the process of mediation, the most integral constituent is selecting the appropriate mediator, who shall act as an impartial, knowledgeable, and empathetic neutral and shall attempt to facilitate and evaluate the dispute between the parties, with the intention of settling the conflict with terms and conditions agreeable and beneficial to all parties involved.
(A) Assessing the role of Hanuman as a Mediator
To constructively choose a mediator, it is essential to scrutinize the role of Hanuman as a mediator between Lord Rama and Ravana. Due to the presence of the following attributes, Hanuman’s attempts to rescue Sita from Lanka, by requesting Ravana, failed:
(a) Partiality and lack of Neutrality: Impartiality, in the context of dispute resolution has been defined as “freedom from favoritism and bias in word, action and appearance”[7]. During the process of mediation, a mediator must not exhibit “any partiality or bias based on any party's background, personal characteristics, or performance”[8]. The role of impartiality is not limited to any one aspect of the mediation but applied to “communication (spoken and unspoken), the way questions are asked, reframing of positions and interests, the use and arrangement of furniture, seating arrangements, and methods to greet the participants”.[9] In view of the principles pertaining to impartiality, Lord. Hanuman as a mediator lacked all attributes corresponding to impartiality, for example, (i) his affiliation with and devotion to Lord Rama; (ii) absence of asking questions to Ravana; (iii) lack of interest in understanding Ravana’s interests and position; and (iv) actions of burning down the kingdom of Lanka.
(b) Failure to manage Positional Bargaining: To perfect a mediation, the mediator should focus on finding options that satisfy the parties' underlying interests and repair their relationship[10]. When parties commence a mediation from extreme positions, it becomes difficult for a mediator to facilitate a compromise. To avoid a deadlock, a mediator should in the following order, “(i) Ask about a party's thinking in formulating the offer; (ii) Ask what message the parties are trying to send; (iii) Ask about the likely response from the other side; (iv) Offer a prediction; (v) Ask for private information about the party's ultimate goal; and (v) Suggest options”[11]. Hanuman, during his brief interaction with Ravana, (i) adopted the evaluative method of mediation by offering his prediction that Lord Rama would wage a war against Ravana; (ii) failed to identify Ravana’s interests in the conflict; (iii) failed to overcome his commitment bias, and (iv) failed to reframe Ravana’s positions. Moreover, the unsuccessfulness of the mediation can also be ascribable to Hanuman failing in communicating with Lord Rama of his intentions, underlying interests and proposed first offer to be made to Ravana.
(c) Failure to Overcome Impasse: Often, impasse flows from a combination of cognitive biases and flawed risk assessments. The cognitive biases include loss aversion, overconfidence effect, reactive devaluation, and confirmation bias[12]. The most important tools in the hands of a mediator to overcoming impasse are perseverance, projecting optimism, probing for interest-based issues, restarting the bargaining process, asking the parties for their assistance and ideas to resolve the conflict, making a personal request, adjourning to set up new meeting and offering an opinion[13]. In the present matter, Hanuman, in his failure to (a) Project optimism towards Ravana; (b) Ask questions and understand his interests; (c) Offer Lord Rama and Ravana for an alternative solution; (d) Making a special plea to Ravana to release Sita; and (e) Propose setting up of new meeting between both parties, could not overcome an impasse, a skillset that should be possessed by experienced mediators.
(B) The Ideal Mediator
To determine the most suitable mediator for a conflict, parties or their representative should assess the following two questions: (a) What obstacles are preventing the parties from negotiating effectively? and (b) What qualities in a mediator would allow them to work with the disputants to overcome those obstacles?[14]
1) Obstacles Preventing Parties from Effective Negotiation
In view of the above, in the present dispute, Lord Rama and Ravana are faced with the following barriers from bargaining effectively:
(a) Strong Emotions: Generally, in disputes wherein strong emotions are involved, communication can be disrupted which can result in poor and illogical decision making. Here, due to Lakshmana’s attack on Surpanakha and kidnapping of Sita, the emotions of all parties are extortionate. To deal with and settle a dispute involving tremendous amounts of anger and grief between Lord Rama and Ravana, a mediator that will help the parties in identifying the apparent as well as underlying issue, allows venting, listens, acknowledges and empathizes with parties, shall be required[15].
(b) Optimistic Overconfidence: “The tendency for people to exaggerate the extent to which they know that a decision is correct is defined as optimistic overconfidence”.[16] It is a systematic error of judgment made by individuals when they assess the correctness of their responses to questions relating to intellectual or perceptual problems.[17] In the present case, Lord Rama and Ravana are overwhelmingly positive about their respective wins in the ward. Lord Rama is certain that he can defeat Ravana and rescue Sita, and on the other hand, Ravana is indubitable that with his boon from Brahma and a large army, he can defeat Lord Rama. To manipulate Lord Rama and Ravana, the proposed mediator should at first, “begin by admitting that a win is possible and describe clearly what it would mean, so the listener knows that you “get” her perspective and then move on to other outcomes that are less attractive but much more likely”[18].
(c) Lack of Relevant Information: One of the key barriers to settlement is often lack of information. “Parties do not have enough data to assess their situation, or the data that they do possess is not accurate.”[19] Ravana is completely unaware that it was only when Surpanakha attacked Sita that Lakshmana proceeded to slice off her nose, and similarly, Lord Rama is oblivious that (i) Ravana has not harmed Sita; (ii) Ravana was not informed of Surpanakha’s attack on Sita; and (iii) Ravana, in fact is a learned scholar, well versed in six shastras and four vedas. To help the parties resolve their dispute, a mediator who can facilitate communication between parties by arranging an exchange of information through mediation briefs, moderate joint discussions, serve as a liaison between parties for confidential facts and direct attention to non-meritorious information will be well suited to settle the conflict between Lord Rama and Ravana.
2) Qualities of the Archetypal Mediator: Danny Singh
For the purposes of clarity and brevity, the author shall refer to the proposed mediator (mediating the dispute between Lord Rama and Ravana) as Danny Singh, a renowned Sikh mediator from the United States of America with twenty-five years of experience. While the above-mentioned paragraphs briefly capture the qualities that a mediator seeking to resolve the dispute between Lord Rama and Ravana should possess, the following attributes will contribute towards precluding one of the biggest wars:
(a) Experience in Cross-Cultural and Cross-Border Disputes: In the domain of cross-cultural and cross-border disputes, it is imperative that the mediator exhibits simultaneous enculturation and acculturation with cultural competency. Enculturation encompasses understanding internal culture-colloquialisms, linguistic remarks, tonality, mannerisms, and other forms of nonverbal communication to holistically create in-group identity and norms, and on the other hand, acculturation encompasses understanding the external culture as well as adapting to such cultural exceptionality through long periods of time for holistic empathy[20]. Since Lord Rama and Ravana belong to two different nations, namely, India and Lanka, and have several cultural differences, Danny Singh with his vast prior experience in resolving inter-faith and international disputes will help better understand the variability between Lord Rama and Ravana and bridge the existing gap accruing out of their cultural and national disparities.
(b) Neutrality: To demonstrate neutrality, Danny Singh has assured he (i) shall not intervene in the substance of the dispute; (b) is indifferent to the welfare of Lord Rama and Ravana; (c) has no existing relationship with the parties; (d) will not attempt to alter perceived power balance variances between Lord Rama, as the prince of Ayodhya and Ravana, the king of Lanka; (e) is disinterested in the outcome of the dispute; and (f) is unconcerned with the impact of the settlement on unrepresented parties, namely the people of kingdom of Lanka and the army of monkeys[21].
(c) Empathetic & Compassionate: Danny Singh, throughout his career as mediator, has mastered the skill of balancing cognitive and emotional empathy. Through cognitive empathy, he shall be thoughtful and reflective of Lord Rama and Ravana’s mental state of mind, and through emotional empathy, he will be appropriately reactive and responsive to Lord Rama and Ravana’s feelings towards each other as well as to the situation[22].
(d) Facilitator of Communications: Settlement decisions can be easily influenced by the way a person narrates a situation[23]. During his interview with the representatives of Lord Rama and Ravana, Danny Singh recounted his prior mediations wherein the tools of reframing and restating played an enormous role in facilitating communications between parties, even more so, during caucuses, wherein he could reframe and restate a negative statement made by one party, to the other party. The aforestated qualities are imperative to the present dispute between Lord Rama and Ravana due to the anger, anxiety and animosity that has developed between the parties, and will help in facilitating productive and efficient communication to avoid any “blame” towards each other.
(e) Creativity: Danny Singh has served as a pioneer for innovative solutions in the sphere of mediations. His contribution in (a) serving as the U.S. Special Representative to Bosnia for privatization to oversee $14 billion transfer of funds to Muslims, Croats, and Serbs; and (b) serving as a facilitator in tenant-landlord disputes in Los Angeles is a testament to his creativity and knowledge of unique solutions. In the present dispute, in order to preclude a war between Lord Rama and Ravana, it shall be the need of the hour to create solutions that are beneficial to both parties and satisfy each party’s agenda.
(f) Facilitative and Evaluative: To effectively mediate between Lord Rama and Ravana, it is of utmost importance that Danny Singh exhibits the flexibility of adjusting into the part of an evaluator, facilitator and a combination of both. As a facilitator, the aim will be to gather information, communicate the said information impartially, communicate offers and ideas and encourage parties to come up with solutions, and on the other hand, as an evaluator, the goal is to help Lord Rama and Ravana to settle by creating solutions unique to their dispute. As a student of Leonard L. Riskin, the formulator of the Riskin Grid, Danny Singh is well versed in the field of evaluative and facilitative mediation, ideal to the conflict between Lord Rama and Ravana.
VI. Process of Mediating the Dispute between Lord Rama and Ravana
Upon consultation with representatives of Lord Rama and Ravana, Danny Singh has decided upon the following rules for the process of mediation:
(A) Presence of Attorneys: Lord Rama, Ravana and Danny Singh have unanimously decided that the parties’ representatives shall be present during the mediation. However, the extent of the lawyers participation shall be limited to advising on legal issues, enforceability of the mediated agreement, drafting mediation briefs and all or any legal research required for the implementation of the terms and conditions of the agreement.
(B) Mediation Briefs: The attorneys for Lord Rama and Ravana are directed to file their mediation briefs with Danny Singh, the contents whereof should contain the following: (a) brief facts; (b) issues to be mediated; (c) legal and factual submissions; and (d) proposed solutions.
(C) Caucuses and Joint Sessions: Upon consultation with the attorneys, Lord Rama and Ravana, Danny Singh has decided that after the opening session, the mediation shall break into caucuses, firstly with Lord Rama and then with Ravana. Thereafter, if parties are comfortable, Danny Singh shall conduct a joint session with only Lord Rama and Ravana, in the absence of their attorneys.
(D) Venue and Costs of Mediation: Lord Rama and Ravana have mutually agreed to conduct the mediation in Hague, Netherlands, wherein the cost of the proceedings and the fees of Danny Singh shall be equally borne by Lord Rama and Ravana.
(E) Confidentiality Agreement: Danny Singh has signed a confidentiality agreement with the foregoing terms and conditions, (a) his appointment as a mediator shall not be disclosed to any third party including all family members; (b) the contents of the proceedings shall remain confidential throughout the duration of the mediation; (c) the contents of the terms and conditions of the mediated agreement, if any, shall remain confidential; and (d) failure to comply with the confidentiality agreement shall result in damages to the tune of USD 25 Million.
VII. The Mediated Agreement
Intense and extremely heated discussions broke out between Lord Rama and Ravana, however, due to Danny Singh’s expertise, the power of apology and the process of mediation, the parties eventually agreed on the following terms and conditions:
(a) Ravana shall safely release Sita from Ashok Vati;
(b) Ravana shall reimburse the following:
(i) costs incurred by Lord Rama while traveling from Panchvati;
(ii) all future medical expenses of Sita from mental health therapy and physical therapy; and
(iii) damages to the tune of USD 1.5 Million for intentional infliction of emotional distress;
(c) Lord Rama and Ravana shall equally divide the damages incurred by Lanka, upon its burning down by Hanuman;
(d) Ravana shall issue an official apology to Lord Rama, Lakshmana, Hanuman and Sita;
(e) Lord Rama shall issue an official apology to Surpanakha and Ravana;
(f) If the parties fail to comply with the terms and conditions of the agreement, the defaulting party shall be liable to pay damages amounting to USD 17.5 Million;
(g) The mediated agreement between Lord Rama and Ravana is binding, and not subject to review or appeal by any court of law; and
(h) Lord Rama and Ravana, as respective rules of their kingdoms, shall strive to build earnest trade and business relations with each other.
VIII. Conclusion
In mediating the historic conflict in Ramayana, we understand the power of mediation, in resolving complex disputes, as a method of dispute resolution which “(a) does not limit its focus to the discrete legal claims asserted by the parties, (b) looks beyond the legal issues to explore the relationship between the parties, (c) creates a wide range of "win-win" resolutions of the problems are possible, and (d) offers the parties the desired ability to focus on resolution of a specific dispute without worrying about its impact on future disputes”[24].
[1] Dwight Golann and Jay Folberg, Mediation: The Role of Advocate and Neutral, (3d ed. 2016), 73. [2] Id. [3]Aneesha Mathur, CJI Ramana Cites Mahabharata, Says Mediation As A Concept Deeply Embedded Into The Indian Ethos, 18 July 2021:https://www.indiatoday.in/india/story/amicable-dispute-settlement-is-part-of-indian-cultural-ethos-says-cji-nv-ramana-1829436-2021-07-18 [4] Sukhsimranjit Singh, International Dispatch: Dispute Resolution Developments in India, 21 Disp. Resol. MAG. 34 (2014). [5] Id. [6] Patrick Tiernan, Ashrama, Dharma, Moksha: The Ramayana as a Metanarrative for Hindu Cosmology, Summer 2006: https://college.holycross.edu/projects/himalayan_cultures/2006_plans/ptiernan/story.htm. [7] Phyllis Bernard & Bryant Garth, Dispute Resolution Ethics: A Comprehensive Guide (Washington: American Bar Association, 2002). [8] Id. [9] Karen A. Zerhusen, Reflections on the Role of the Neutral Lawyer: The Lawyer as Mediator, 81 Ky. L.J. 1165, 1169-70 (1993). [10] Dwight Golann and Jay Folberg, Mediation: The Role of Advocate and Neutral, (3d ed. 2016), 130. [11] Id. [12] Rick Weiler, Impasse in Mediation, 6 October 2019: http://mediationblog.kluwerarbitration.com/2019/10/06/impasse-in-mediation/. [13] Dwight Golann and Jay Folberg, Mediation: The Role of Advocate and Neutral, (3d ed. 2016), 139 to 144. [14] Dwight Golann and Jay Folberg, Mediation: The Role of Advocate and Neutral, (3d ed. 2016), 208. [15] Dwight Golann and Jay Folberg, Mediation: The Role of Advocate and Neutral, (3d ed. 2016), 145. [16] Baruch Fischoff et al., Knowing with Certainty: The Appropriateness of Extreme Confidence, 3 Journal Of Experimental Psychology: Human Perception And Performance, 552 (1977). [17] Gerry Pallier et al, The Role of Individual Differences in the Accuracy of Confidence Judgments, 129 Journal Of General Psychology 257, 258 (2010). [18] Dwight Golann and Jay Folberg, Mediation: The Role of Advocate and Neutral, (3d ed. 2016), 158. [19] Dwight Golann and Jay Folberg, Mediation: The Role of Advocate and Neutral, (3d ed. 2016), 167. [20] Laura N. Mahan & Joshua M. Mahuna, Bridging the Divide: Cross-Cultural Mediation, International Research and Review: Journal of Phi Beta Delta Honor, Fall 2017, Vol. 7, No. 1. [21] Benjamin, Robert D, The Risks of Neutrality – Reconsidering the Term and Concept’ Ethics Forum, Mediation News, Summer 1998, Vol 17, No 3. [22] Charlie Irvine and Laurel Farrington, Empathy, 13 February 2018: http://mediationblog.kluwerarbitration.com/2018/02/13/empathy/. [23] Dwight Golann and Jay Folberg, Mediation: The Role of Advocate and Neutral, (3d ed. 2016), 127 to 128. [24] Kenneth R. Feinberg, Mediation - A Preferred Method of Dispute Resolution, 16 Pepp. L. Rev. 5 (1989).