Mediation Setting Should Balance Social Power; Should Not Promote A Culture Of Impunity : Justice Chandrachud

It is an honour to speak today at this International Mediation Conference organised by Bangalore International Mediation Arbitration and Conciliation Centre (BIMACC). BIMACC has been at the forefront of setting up India's first International Mediation Centre. The Centre deals with commercial, corporate, intellectual property, family and consumer disputes. It has empanelled many international mediators. The Centre has also framed its own rules of procedure in tandem with international standards. It also provides the facility of online mediation which would have been extremely beneficial during the COVID-19 pandemic. Lockdowns have not slowed the influx of disputes. In fact, they may have aggravated disputes relating to contract default, non-payment of salaries to employees and layoffs among other issues. There has been a reported rise in the domestic violence cases. In such a situation, it becomes imperative that our alternative dispute resolutions mechanisms along with the courts remain functional to redress the grievances of our citizens.

Marc Galanter had once commented that it is a myth that the Indian public is excessively litigious. In 2009, he noted that the volume of civil litigation coming before the courts is reducing. In fact, he says that there is evidence to suggest that the per capita civil courts' use in India is among the lowest in the world. He believes that Indian courts are congested because of an insufficient number of courts and procedural practices which are used by lawyers and litigants to halt and delay court proceedings for their own benefit. This, he thinks effects those who require prompt remedies and protections against dominant parties such as "women from husbands, labourers from landowners and citizens from government".^[1] "[B]acklog and delay provide a profound disincentive to settlement. Defendants, who have achieved preliminary injunctive relief, benefit from the time value of money by refusing to settle, even in cases where they are likely to lose."^[2] While, it may be an incorrect perception, that India is litigious, our courts are indeed burdened. There are 1,04,44,507 pending civil cases in District and Taluka Courts and 41,68,746 cases pending in High Courts, according to the data available with the National Judicial Data Grid.

Mediation then becomes a means of resolving disputes which is not bogged down by outmoded procedures and practices, is inexpensive, swifter and not formalistic. However, the role of mediation and other alternative dispute resolution mechanisms is not to merely reduce the number of cases in the court's docket. Since mediation is not adversarial, it presents a possibility of looking at disputes not as zero-sum games. It provides an opportunity to reformulate relationships in the interests of all stakeholders. Mediation can perhaps be used to establish long lasting peace without sacrificing concerns of justice, fair play and equity.

Commentators have raised concerns that the flexibility offered by mediation may allow negotiations to be susceptible to emotional intimidation, assertion of financial leverage and non-legal considerations may intrude into the domain of what should be legal decision-making.^[3] The field of social justice especially presents itself as a thorny terrain because there is lack of equity between the parties who may be resorting to mediation. Thus, it begs the question whether we imagine justice being done without courts?

The underlying assumption in the above criticism is that power is balanced in the courtroom. However, people may not be able to deploy rights equally in courts on account of socio-economic constraints such as caste, gender, economic status, sexuality and disability. Work done in the field of critical legal studies has highlighted that more laws and more rights are not equal to more justice.^[4] Law and courts have their limitations. For instance, in Patan Jamal Vali v. State of Andhra Pradesh^[5], I noted the limitations of single axis legislations which focus on oppression on account of a singular source, be it caste, gender or disability, noting that they make invisible the experiences of minorities within these broader groups who suffer on account of multiple oppressions. Citing the work of Nitya Nayar, I observed that such legislations require oppressed groups to "caricaturize themselves so that they fit into [law's] prefabricated, rigid categories". It is possible that issues of social justice may be reduced to a quibble between lawyers and judges about application of legal formulae.

The point of the above discussion is not to be dismissive of law or courts. Courtrooms remain places which allow marginalised groups to demand accountability from the State and challenge status quo.

I am merely questioning the assumption that courts may necessarily be the only sites which can resolve complex issues of social justice while mediation may fail to provide effective solutions to such conflicts because of the power imbalance between the concerned parties. As it is important for a judge to be cognizant of the societal hierarchies while adjudicating any social justice issue, it is important for a mediator as a neutral facilitator, must be able to understand, "the complexities of the conflict, its causes which often include systematic discrimination resulting in denial of economic, social and cultural rights of identifiable groups".^[6] For this, the mediator may rely on domestic or international jurisprudence and academic literature. Thus, the pursuit of justice does not have to be necessarily sacrificed in the interest of peace and the mediation process can be imbued with human rights concerns.

Mediation may empower the oppressed party to directly participate in decisions about their future and those of their oppressors. It does not require them to relinquish control to a legal counsel and fit their grievances in a language that law understands.^[7] As some commentators have pointed out an adversarial process often, "escalates conflict, encourages scapegoating and victim behaviours, and reinforces just those factors that contribute to abuse."^[8]

Non-judicial reconciliation techniques have been previously used to address human rights abuses. In post-apartheid South Africa, the country sought to face its past of racial segregation, discrimination, oppression and violence by establishment of a Truth and Reconciliation Commission. The commission was given the responsibility of unearthing gross violations of human rights committed on all sides between 1960 and 1994, granting amnesty to perpetrators subject to their admission to abuses and compensating victims for the ultimate purpose of promoting national unity and reconciliation.^[9] Though it did not completely resemble a mediation setting, the Truth Commission held hearings where both victims and perpetrators were heard to arrive at a useful compromise. The truth commission was premised on the notion of restorative justice, reminding us that justice does not necessarily have to be punitive. While there has been some criticism of the Truth Commission – that it fell short of challenging structural inequalities that led to apartheid,^[10] what the Commission did achieve was that it prevented collective amnesia about the racial past of the country, which itself emerged as a constitutional democracy through a negotiated settlement. The recovery of truth about human rights violations was found to be more useful for reconciliation than a denial of such violations, whether or not accompanied by prosecutions. If perpetrators were acquitted due to a failed prosecution process, it would have added to the culture of impunity eroding faith in the rule of law and generating anger and cynicism in the minds of victims and survivors. ^[11]

However, the success of any reconciliation project aimed at achieving social justice depends upon translating the rhetoric of reconciliation to reality by tackling deep rooted social imbalances that underlie the culture of violence and oppression.^[12]

Closer home, Lok Adalats have been statutorily established to arrive at amicable settlement for disputes. The Civil Procedure Code has also been amended to allow courts to refer disputes to be settled by alternate dispute resolution mechanisms including mediation. High Courts and private organisations have taken the initiative of establishing their own mediation centres.

Matrimonial disputes are often referred to mediation by judges. These typically involve cases under the Dowry Prohibition Act, maintenance under Section 125 CrPC, Protection of Women from Domestic Violence Act, Guardians and Wards Act, matters related to divorce, judicial separation and restitution of conjugal rights.^[13] Courts often refer matrimonial disputes involving criminal charges to mediation.^[14] However, matrimonial disputes often involve questions of gender justice. The feminist movement with its popular slogan, "personal is political", has highlighted that everything that occurs at home which previously escaped scrutiny under the guise of the private sphere should be of public concern. The private sphere not only becomes a site of violence against women but also perpetuates gender hierarchy by burdening women with caretaking and child rearing responsibilities, which further affects their public participation. This requires that the mediation setting is cognizant of the insidious ways in which patriarchy functions and does not let resolution become another way of perpetuating and reinforcing gender hierarchies. While it may be argued that mediation allows perpetrators to escape legal penalty, it allows women to decide what would be the terms of the reparations. This may be more useful than penalising of the perpetrator which often depends on the success of the investigative and prosecution process.

Another area where concerns of social and economic justice may become important is labour disputes. The Industrial Disputes Act, 1947 empowers the government to refer disputes to a conciliation officer to mediate disputes between employers and workers. The dispute may relate to conditions of work, regularization of employment, deprivation of minimum wages, layoffs and retrenchment. The conciliator cannot coerce management or labour, but guides them towards an amicable settlement. The conciliation process is centred around the notion of collective bargaining, which poses a challenge to the legal entitlements of the employer in the nature of freedom of contract and right to property. It seeks to establish a face-to-face interaction between employers and employees under conditions of equalized bargaining power in pursuit of better wages or working conditions, through a procedure and remedy which is not necessarily legalistic.^[15]

However, it has been observed that employers generally tend to have an upper hand in the conciliation process. They often use delay tactics to tire employees who raise individual disputes forcing them to either withdraw or settle. They also often see conciliation as a stepping-stone to adjudication. Where conciliation is successful, it depends on the employer's expedience that is guided by their financial interests. However, conciliation can be a cheap and quick process. It would also reduce the financial implication that may be borne by workers approaching the court.^[16] While conciliation is voluntary in nature, conditions should be created in the conciliation process where employers and workers can negotiate with equalised bargaining powers. Further, there should be an added impetus on conciliation officers to take steps to resolve disputes instead of merely acting as a post-box for referring disputes to adjudication.^[17]

Mahatma Gandhi had once observed that, "…the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby, not even money, certainly not my soul."^[18] Mediation has the potential to be one of the avenues through which social justice can be achieved provided it resorts to balancing the social power in the mediation setting and does not promote a culture of impunity. Instead of an institutional culture where the voices of judges and lawyers are at the centre, mediation can be a bottom-up strategy which passes the mic to the oppressed groups who narrate their lived experiences unhindered by the formalities and categories of law. They are able to structure the remedies and reparations that they seek. At the same time, it puts the onus on the dominant groups to contribute to the healing of a fractured society by doing better.

I would once again like to thank the BIMACC for inviting me to speak at this conference on a subject that is close to my heart, that is, social justice.