Justice is, in a key measure, representative of the manner in which we choose to resolve the conflict. An adjudication by following an adversarial process followed by further processes or a mutual acceptance by following a collaborative process and resolving the conflict. Our inner peace holds the key to outer peace. Access to justice is a key aspect in any successful democracy. Our struggles with bringing the justice delivery system to the doorstep of a citizen have been legendary.
One key aspect which we are struggling with is the inordinate delay in the justice system. The low judge to citizen ratio, irregular infrastructure and many other such reasons lead to high pendency of unresolved cases in Courts. A large portion of our population lives in rural India and access to justice for them is a formidable challenge. Litigation is expensive and we lack resources to meet the mounting demand. Articles 14 and 21 of the Constitution of India, which guarantee equality and right to life respectively, are considered vital forces of the Constitution. The right to prompt justice has been recognized as an intrinsic part of the right to life. Absent the ability to deliver on this constitutional promise, we disappoint our fore fathers and the future generations too. There is a pressing need to focus on mechanisms where the injustices visiting a large section of the population are addressed in an efficient, inexpensive and wholesome manner. Especially for the disempowered section.
During ancient India, it was about “coming together for everyone”, people took pride in fostering their collectiveness despite their differences. Informal and traditional means were adopted within communities to resolve disputes. Our scriptures echoed the concept of social harmony and power of communities. Thinking was deeply rooted to cultural and moral norms. The collaborative approach of resolving issues through Panchayats and respected community elders was exemplary. The wise believed in settlements that were favorable in the long run. Of course, there were the attending shortcomings of a rigid hierarchical society leading to differential rights based on gender, caste and other criteria which placed humans above or below each other.
Things changed remarkably with the British. We saw the advent of formal adversarial justice system that led to the informal community resolution concept taking a backseat. While perceptively the formal justice system seemed to do away with the concept of differential rights, but it was costly, complex, slow paced, burdensome and questionable on integrity and fairness. Further, the economically marginalized faced the daunting task of accessibility, lack of legal awareness, cultural and language barriers leading to unequal treatment and discrimination.
There was an obvious mismatch between the earlier informal transitional structure and the formal systems introduced by the English. Each had its own plus and minus points. The experience over the last 70 years, post-independence, has only accentuated the acute awareness that the justice delivery system is not able to keep pace with the development of India. Further, as is usual with India, keeping in mind its diversity and vast socio-economic landscape, a customized solution is a necessity. Something that would bring in the best of the traditional system, which ensured access, and the formal system, which ensured equal rights. A hybrid, as one would say.
To address the above issue, the legislature introduced the “alternative methods” of dispute resolution. One such method was Mediation. It was apparent that resolving and transforming conflicts with party participation was worthwhile for people with genuine problems. The major attributes of mediation are that it is party centric – i.e., it is with the participation of the actual affected parties, minus the formal rigid representation. It is voluntary – a non-binding chance every potential litigant should be willing to take. It is confidential and without prejudice. A flexible process wherein the parties make informed decisions through collaborative efforts. The process comprises effective and transparent communication, focused listening, curbing power imbalances, understanding the needs and underlying interests of the parties and creating innovative settlements. Mediation holds the key to speedy resolutions. The resolutions too are mostly final, with no long appeal processes involved. The benefits are far and beyond and hold much promise.
Fortunately, Mediation is not something new to India. It was the very essence of the informal traditional method of resolving conflicts. Mediation revived and reinforced the Indian value system of parting with problems and preservation of relationships within individuals, families, societies and communities in a dignified and respectful way. Readily accessible and efficient, it brings with it the possibility of speedy, efficient dispensation of justice by the people, for the people.
Over the past decade or so, various institutions – judicial and administrative – have recognized that mediation was the need of the hour in India. It has received an ample boost from all sides and received a phenomenal response from its target audience and indeed, delivered well.
Various States have set up mediation programs with trained and qualified mediators. Some mediation centers were attached with the Courts and Tribunals with the goal to nip disputes at the earliest. However, being spread over a vast coverage area dealing with different provisions of law it became imperative to have a robust legal framework for its effective implementation. As such, a standalone law on mediation was enacted on 14th September, 2023.
The Mediation Act, 2023:
An Act to promote and facilitate mediation, especially institutional mediation, for resolution of disputes, commercial or otherwise, enforce mediated settlement agreements, provide for a body for registration of mediators, to encourage community mediation and to make online mediation as acceptable and cost-effective process and for matters connected therewith or incidental thereto.
The preamble of the Act, clearly states that one of the objectives is to “encourage” community mediation. The purpose is to empower society to fairly and amicably resolve their disputes with the help of a neutral participant thus making the justice delivery system more attractive, effective and available at the community level. By building a culture of right to self-determination the citizens would be saved from the complexities and congestion of litigation.
Mediators, as neutral participants, are professionals with selfless desire to give back to the society. They are not just lawyers but well-respected individuals from diverse backgrounds of the society. Mediators are an asset as they are empathetic, sensitive to culture, language and economic conditions of the parties. They provide a stable environment to the distressed where each party gets an opportunity to tell their side of the story, feel heard understood and healed. Addressal of their grievances helps them think twice before approaching the formal system. Most importantly, mediation serves all categories, the literate, the illiterate, the needy, the privileged, the underprivileged, anyone willing to consider the olive branch for mutual settlement. A plethora of disputes are covered in mediation, be it interpersonal disputes, intra personal disputes, commercial matters, consumer matters, family matters, matrimonial matters, custody matters, community matters and matters at the grass root level etc. except to the exceptions mandated under law.
The relevant sections in the Mediation Act, 2023 which specifically provide for Community Mediation are mentioned below:
Section 3 (b) "community mediator" means a mediator for the purposes of conduct of community mediation under Chapter X;
Chapter X of the Act deals with Community Mediation.
43. (1) Any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality may be settled through community mediation with prior mutual consent of the parties to the dispute.
(2) For the purposes of sub-section (1), any of the parties shall make an application before the concerned Authority constituted under the Legal Services Authorities Act, 1987 or District Magistrate or Sub-Divisional Magistrate in areas where no such Authority has been constituted, for referring the dispute to mediation.
(3) In order to facilitate settlement of a dispute for which an application has been received under sub-section (2), the concerned Authority constituted under the Legal Services Authorities Act, 1987 or the District Magistrate or Sub-Divisional Magistrate, as the case may be, shall constitute panel of three community mediators.
(4) For the purposes of this section, the Authority or District Magistrate or the Sub-Divisional Magistrate, as the case may be, shall notify a permanent panel of community mediators, which may be revised from time to time.
(5) The following persons may be included in the panel referred to in sub-section (4)—
any other class or category of persons may be considered.
44. (1) Any community mediation shall be conducted by the panel of three community mediators referred to in sub-section (3) of section 43 who shall devise suitable procedure for the purpose of resolving the dispute.
(2) The community mediators shall endeavour to resolve disputes through community mediation and provide assistance to parties for resolving disputes amicably.
(3) In every case where a settlement agreement is arrived at through community mediation under this Act, the same may be reduced into writing with the signature of the parties and authenticated by the community mediators, a copy of which be provided to the parties and in cases where no settlement agreement is arrived at, a non-settlement report may be submitted by the community mediators to the Authority or the District Magistrate or the Sub-Divisional Magistrate, as the case may be, and to the parties.
(4) Any settlement agreement arrived at under this Chapter shall be for the purpose of maintaining the peace, harmony and tranquillity amongst the residents or families of any area or locality but shall not be enforceable as a judgment or decree of a civil court.
(5) The provisions of section 20 shall, mutatis mutandis apply, in relation to the registration of mediated settlement agreement under this section.
Community mediation presently addresses “any dispute likely to affect peace, harmony and tranquillity amongst the residents or families of any area or locality”. As would be immediately visible, it is an area based process which addresses the issues or disputes affecting that particular area. The disputes could be intra community or inter community in the area. It has introduced the concept of a formal panel of three (3) mediators, akin to a panchayat, and has required them to submit their report to the area DM, SDM regarding the settlements and non- settlements in the community. The panel of community mediators may be revised from time to time.
The mediation settlement that takes place in any matter is to be reduced to writing with the signatures of the parties and authenticated by the community mediators. However, the settlement agreement arrived between the parties for the purpose of maintaining peace harmony tranquility amongst the residents or families of any area or locality shall not be enforceable as a judgement or decree of a civil court. Though Section 44 mentions that Section 20 of the Act shall apply mutatis mutandis to the mediated settlement agreement.
Community mediation is an interesting foray to increase the footprint of mediation. That its contours are ambiguous is best illustrated by the caution with which it has been introduced. That the settlement will not be legally enforceable does not undermine the fact that it will remain morally binding. A good first step, which could see a change with time in the direction experience dictates. That it provides a possible alternate safety release valve in a heated atmosphere cannot but illustrate the importance of community mediation.
Even in other countries, community mediation has found favor and fruitfully prevented societies from becoming too contentious. It has received considerable acceptability and encouragement from the community stakeholders because of its generous and cohesive characteristics. There are community mediation centers wherein processes attend to de-escalating conflicts. It is therefore appropriate to say that Mediation across the globe is becoming an indispensable golden bridge of hope and optimism that reduces Court's burden, cements fractured relationships and promotes sustainable settlements. Clearly a powerful mechanism, mediation instills confidence and the objectivity of supporting community resolutions remains praiseworthy.
In India, with the dawn of the new legislation, it will be interesting to witness people evolve and embrace the change towards participatory mechanisms as ends in themselves and benefit from the Act. The Mediation Act is best understood as a stepping stone to affordable justice and most importantly regaining of confidence by disputants towards quicker means to resolution. Time is ripe to reduce litigation overload through mutual support and minimize the accumulation of court matters. By creating awareness of the process and addressing issues at the community level, the possibility of peace, harmony and tranquility would be nurtured. Community mediation serves as an effective mode in a conducive ecosystem and with committed determination and efforts it will lead the way to coexistence with grace. Our mindset towards peaceful resolutions at a nascent stage needs to be encouraged as it is exceptionally suited for a secure and we win society.
Author: Prerna Kohli, Founding Senior Partner & Mediator at ZEUS Law Associates. Views are personal.