By Samrith Kaur and Rammit Kaur | OPINION |
Every community that has survived the test of time and existence must have incorporated their unique approaches to dispute and conflict resolution. Scholar John Burton describes dispute as being a short term disagreement that is easy to resolve whilst conflict are long term deep rooted issues where there is much less motivation for parties to seek resolution. It requires external assistance for resolution.
A brief history of dispute resolution in a Sikh Community?
Sikh community as in many other communities of the Indian subcontinent uses the panchayat system to deal with resolution of various issues in the community including poverty, illiteracy, women abuse, child abuse and other social evils. The Panchayat system that has been prevailing in India was introduced during the Vedic time or perhaps even pre-Vedic times.(1) The goodwill of all the classes of people were assured as the system is based on secular ideals. The people of the village will choose their respective leader to be part of the Panchayat. The main function is to govern namely to ensure that records of the village is kept including a land registry which is carried out by the clerk also known as the Patwari and each village had a watchman, the Chowkedar, responsible for keeping an eye on the members of the community and to report to police when situation necessitates.
Spiritually, one of the source of authority in Sikhism has been the panj-pyarey. The institution of panj-pyarey holds a unique status within the Sikh Panth. It is instituted by the tenth Guru, Gobind Singh Ji, in 1699. The panj-pyarey were the first amritdhari Sikhs, who are believed to have received Guru’s authority by virtue of the act of offering their lives to the tenth Guru to create the Khalsa brotherhood. The significance of the institution of panj-pyarey is evident from the way it is respected within the Sikh tradition. Occasionally, the panj-pyarey are asked to resolve disputes among members of the management committee of Gurdwaras. There is depth of literature on the democratic functions and values that the panj-pyarey brings to the Sikh community.(2)
Other methods of resolution of disputes within the Sikh Community has been effected through references to family elders, village head or the Granthi in Gurdwaras.
These various methods of resolution, however, have always rested on some form of decision being made for the parties. The Panchayat operates in an inquisitional and authoritarian fashion which convenes in a public location, usually the village square. The Panchayat allows one disputant at a time to state his or her case. Questions are then asked by the Panchayat members (and sometimes by the audience). Then the second disputant states his or her case, and questions are asked. Sometimes third parties are heard and may be quizzed, too. The first disputant maybe allowed to speaks again (if needed) for clarification.
During the open discussions, the Panchayat can suggest parties to consider concessions or agreement on issues raised. The parties may also be asked to consider certain suggested solutions. After hearing the parties and having the open discussions, the Panchayat members withdraw to discuss the disputes and issues raised. Once they have come up with their decision, the leader of the Panchayat announces the suggested solution or the decision in public together with their opinions or reasoning of the Panchayat.
The enforcement of the decision very much depends on the community will and social pressure. Defiance by any member of community could lead to one being excommunicated.
As the community progresses and assimilate in other communities and cultures around the world, the Sikh community confront multi-dimensional social, religious and political issues both internally and externally. The influences of the community itself reduces as people start to reason and develop a more individualistic perspective to life.
In recent times, therefore, mediation has gained more prominence as the method of resolution that is most suitable for community disputes or conflicts as it rests upon mutual consent, agreement and is able to retain the sanctity of relationship.
Most recently on the 27 February 2020, Hindustan Times reported that a mutual settlement between a Sikh and Muslim community successfully resolved decades old land dispute in Uttar Pradesh. The settlement was initiated by a District Magistrate.(3) This was seen as an example of harmony and that issues may be resolved through meaningful dialogue in mediation.
What is Mediation?
Mediation is a voluntary process in which an impartial person (the mediator) facilitates communication and negotiation between parties to assist the parties in reaching an agreement regarding a dispute.(4) It is an informal and flexible dispute resolution process.
The mediator’s role is to guide the parties toward reaching their own resolution. He or she helps both sides define the issues clearly, understand each other’s position and move closer to resolution through joint sessions and separate caucuses (private sessions) with the parties.
Community dispute resolution existed in many different cultures throughout the world. In some cultures, the dispute resolver is a “sacred” figure worthy of special respect and whose role sometimes overlapped with that of the traditional “Wiseman” or “Chieftain”. Due to the respected position of these local leaders or wise men, members of the communities feel safe and comfortable bringing their disputes before them in the hope of resolving their conflicts or disputes.
In Malaysia, the Government through the Department of National Unity and Integration (DNUI) introduced a community mediation program by training community leaders as community mediators in a pilot program referred to as the Peaceful Neighbour (Rukun Tetangga). This trained local volunteers serving as community mediators, generally focus on community and neighbourhood conflict and often serve those who cannot afford to go through court processes or professional alternative dispute resolution providers.
Typical types of community mediation are disputes between landlords and tenants, members of homeowner’s associations and small businesses and consumers. Many community mediators offer their services for free or at a nominal fee.
Process of Mediation
The mediator manages the process and helps facilitate negotiation between the parties. A mediator does not make any decisions nor force any party into accepting what he or she thinks is a fair solution to the dispute. The parties are encouraged to participate directly by engaging with each other with the assistance of the mediator. The parties are also responsible for generating options and negotiating their own settlement or agreement. The role of the mediator is therefore only as a facilitator and he or she must remain impartial and neutral at all times throughout the mediation process.
The mediation session begins by the mediator describing the process and the ground rules to the parties. Each party will have equal opportunity to present their views of the dispute in turn. The mediation process helps each side understand better the other’s point of view.
If parties reach a mutually acceptable solution, it will then be translated into a Settlement Agreement. Here parties may consult with their lawyers prior to finalizing the agreement to be sure that they have made fully informed decisions and that all their rights are protected (if there are lawyers in attendance). However, if lawyers are not involved, the mediator drafts the Settlement Agreement and gets the parties to check and verify the contents and the agreed terms. The parties then execute the agreement and the mediator signs as the witness to the said agreement.
However, if parties are not able to come to an agreement, they can always terminate the mediation process at any time.
It is crucial to note that a mediator’s role is only to facilitate communication between the parties, steering them towards a mutual acceptable solution and should never be confused by evaluating the dispute, advising the parties, supporting the parties or taking sides or counselling.
Simply put, the mediator’s role is to separate the people from the problem; focus on interests not positions of the parties; invent options for mutual gain and insist on objective criteria.
When and How Mediation Is Used?
When parties are unable to negotiate a resolution to their disputes by themselves, or do not want to litigate for fear of the complex legal system or wish to avoid the stress of appearing in court, or perhaps due to financial constraints, they may want to explore mediation as an alternative dispute resolution mechanism. Parties may seek the assistance of a mediator who will help them explore ways of resolving their differences by helping them reach a mutually acceptable solution or agreement. Parties may choose to go to mediation with or without a lawyer depending upon the costs involved or type of problem or dispute they have.
Disputing parties may choose to submit to mediation at any time, either before or during and even after the court proceeding.
Mediation can be used in most conflicts ranging from disputes between consumers and merchants, landlords and tenants, employers and employees, family members in such areas as divorce, child custody and visitation rights, eldercare and probate as well as simple or complex business disputes or personal injury matters.
How mediation can assist in resolving issues in Sikh Community?
The Sikh community has always been very progressive with strong cohesive community values. However, like any other community, there are bound to be conflicts and issues. The disputes can range between the community members, gurdwara committee members to family issues, inter-religion, inter-racial issues within the community. To preserve the strong communal values instilled in the Sikh culture, mediation is the perfect way forward in resolving these Sikh community disputes in an amicable way.
The key component in any mediation is parties’ participation. The mediator should encourage disputing parties to participate and be actively involved in discussion that affects, thereby creating responsibility rather than opting for a third party to resolve their issues.
Confidentiality is the next key component to a successful mediation. It must be emphasis to the parties throughout the mediation process that all that is discussed in the mediation will always be kept confidential not only by the parties but also the mediator. This assurance to the parties is very important for parties to have trust in the mediation process.
However, community mediation must not be confused with counselling. The mediator can never stop being impartial and neutral, and must never perform the functions involving evaluation, supervision, integration, advice, support or act as counsellor. A community mediator’s role is to resolving conflicts and to restoring relations among community members and restoring social unity within the community. In other words, his or her role is to establish a harmonious society and stable community relations through a friendly resolution of disputes.
It is important for the mediator to make the mediation process a safe haven for parties in the community to come forward to mediate their disputes/problems/conflict without the fear of being shamed or judged by their members or peers. The importance of confidentiality must be stated to not only give comfort but to ensure that parties feel safe with discussing their personal feeling and emotions and being able to have open discussions. Mediators must never judge any parties coming forward to mediate their dispute but encouraged to have taken this step in resolving a conflict or dispute.
Some of the suggestions that could make mediation work in Sikh community are as follows:
- Training the Granthi (Priest) in every Sikh Temple
- Training committee members or people in the community who are interested in the training to be mediators
- Coming up with a Code of Conduct for Sikh Community Mediation and emphasising on confidentiality
- Provide talks and literature to the community to cause awareness of this process called mediation
- Make mediation as being part of the service / ‘seva’ to help families, friends, associates to resolve their differences.
It is the authors’ view that mediation in the Sikh Community should be encouraged as mediation helps parties to mend broken relationships in making parties understand the other person’s perspectives. It has a win-win outcome, and it saves time, money, and anxiety of going to court. It is also a process where parties are assured that whatever is discussed in the mediation process remains private and confidential. Further, as parties decide their own outcome, mediation empowers the parties in coming up with a mutually acceptable settlement or decision.
- The authors are practising advocates & solicitors and accredited mediators. They co-authored the Practice and Procedure of Mediation book published by Sweet and Maxwell in 2020. They have extensive experience in the field of alternative dispute resolution. They have successfully trained a few batch of community mediators for the state of Penang including the Justices of Peace and were integral to the setting up of the Penang JP Mediation Bureau.
(1) Defence of Europe by Sikh Soldiers in the World Wars by Mohindra S Chowdary
(2) Guru Gobind Singh: Historical and Ideological Perspective by Madanjit Kaur
(4) Section 3 Mediation Act 2012
Malaysia finally gets its mediation ‘treatise’ (Asia Samachar, 25 May 2020)
Rammit Kaur speaks on arbitration at KL law conference (Asia Samachar, 27 April 2016)
Harbans’ second edition of engineering, construction contracts book (Asia Samachar, 1 May 2015)
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