Events & Issues

New Delhi, 15 March 2019

Ayodhya Dispute

EFFICACY OF MEDIATION

By Dr. S. Saraswathi

(Former Director, ICSSR, New Delhi)

Disappointing millions of people anxiously looking for a final solution to the long-pending dispute over Ram Janmabhumi-Babri Masjid, the 5-member Constitution Bench headed by the CJI referred the litigation to a 3-member mediation panel under Section 89 of the Civil Procedure Code. The court has fixed a time limit for submission of report as eight weeks, i.e.  before May which seems to be an acknowledgement by the court of the urgency of the matter.  Mediation has been adopted nearly 25 years after it was first mooted in the Supreme Court in 1994.

The dispute is over ownership of about 2.7 acres of land on which the mosque stood. The Allahabad High Court allotted two-thirds of this land to the Hindus, and the rest to the Sunni Wakf Board of Uttar Pradesh in 2010. Both Hindu and Muslim organisations appealed to the Supreme Court which stayed the High Court order.

The Bench asserted that both sides ought to give a chance to mediation “even if it had only 1 per cent chance of success”. The order of the court, accordingly states that, “Notwithstanding lack of consensus between the parties, we are of the view that an attempt be made to settle the dispute by mediation”. Mediation would take place in camera, and the mediators can co-opt other members if required.

As an issue pertaining to religion and sentiments, judicial fraternity may hold that a cordial meeting and consensual decision through discussion is possible. In reality, it is religion and sentiments that gave rise to the dispute and have stood in the way of settlement all along.

The Hindu parties generally, with the exception of Nirmohi Akhara, do not favour mediation, while the advocates of the Muslim parties favour it. However, consent of all the parties is not legally a condition for referring a matter for mediation.

The three mediators appointed by the Supreme Court include Justice F.M.I. Kalifullah, former Supreme Court judge as the head, and Sriram Panchu, an expert mediator advocate and founder of the Mediation Chambers in 2005 and Director of the International Mediation Institute, and Sri Sri Ravishankar, a well-known spiritual leader and founder of the Art of Living as members.

Politically considered, it is a very wise way of avoiding a purely judicial verdict that cannot fully satisfy any of the parties to the dispute on the eve of elections.  The other question of the efficacy of mediation in such a sensitive dispute irrespective of timing deserves our consideration.   Common people, happy at avoiding emotional issues dividing society, have reason to be worried about stretching the legal procedure.

While the RSS and VHP, which were expecting a solution to the conflict in their favour, were disappointed over the court order, Muslim outfits welcomed it on the whole. Still, some Muslim parties are not happy with the inclusion of Sri Sri Ravishankar in the mediation team. It is reported in the press that the Shiv Sena has expressed doubts regarding the efficacy of mediation in the matter. Reiterating its demand, it has asked the government to promulgate an ordinance and start construction of the temple.

The court order has at last come after all previous efforts at finding a solution through talks have failed. It has not devised any new method unknown to the litigants. However, there may be a hope that a court-monitored mediation will produce a different result and ultimately lead to a judicial decision which must be accepted by all. The dispute is basically all about “mind, heart, and feelings”, said a judge who seemed to be convinced of the efficacy of mediation in this dispute.

Mediation Law refers to a form of alternative dispute resolution (ADR) in which the parties to a law suit meet with a neutral third party to be called the “mediator” in an effort to settle the case.  It is the job of this person (s) to hear the evidence and help the litigants understand each other’s viewpoints. He/they will facilitate negotiation for a voluntary resolution of the case. In a mediated settlement, there is no winner or loser to create and perpetuate ill-will between the parties.

Mediation normally cuts short the time and heavy expenses involved in the procedure of a law suit. This is not applicable to Ayodhya dispute that has already incurred heavy expenditure and time. The mediator’s role is not to reach a decision and his recommendation is not binding on the parties. His role is to help the parties arrive at a settlement by themselves.

In Ayodhya dispute, the mediators’ report will help the judges decide the case judicially. It will also amount to useful utilisation of the time while waiting for translation of thousands of pages of documents.

The concept of mediation evolved in the latter half of the 20^th century, but its roots can be traced to ancient legal system in India. Gram panchayats and nyaya panchayats were mediating, but they have lost credibility due to factions undermining their neutrality.

The Arbitration and Conciliation Act 1996 is the first statute to introduce mediation in the Indian legal system.  In 2011, the Supreme Court declared that mediation proceedings were confidential in nature and only an executed settlement agreement or failure should be provided to the court. Media is to be kept away and barred from reporting true or fake news – a rule that will be difficult to implement in the present case.

Mediation is a “structured, voluntary, and interactive negotiation process” where the neutral mediator(s) -- a third party -- with the use of specialised communication and negotiation techniques help the parties to reach their objectives. It is a party-centred process and therefore, focuses on the rights, needs, and interests of parties in the dispute. It does not speak of abstract rights.

In India, mediation came to be recognised as a method of resolving disputes under the Industrial Disputes Act of 1947. In 1999, an amendment to the Civil Procedure Code allowed courts to refer cases to ADR (Alternative Dispute Resolution) to settle pending disputes. Consent of the parties was necessary under this Act. This was removed in 2003 rules of the Civil Procedure Code and the courts are now free to refer cases for mediation even when the parties are not willing to accept mediation. A few days ago, the Supreme Court said that compensation claims in road accident cases should be first referred to mediation and asked the Union Government to set up accident mediation authority in every district.

Mediators help the parties to understand the reality and give up rigid postures. Unlike other forms of ADR, mediation is not binding on the parties. Its role is only to help the litigants reach a settlement. In fact, in some cases, mediation takes the parties closer to a settlement, but not to actual settlement. If mediation efforts fail, the case is sent back to the referral court. If an agreement is reached, it is like a contract between the parties and enforced by the court.

Ultimately, the success of mediation depends on the attitude of the parties and their sincere desire to resolve the dispute amicably.---INFA

(Copyright, India News & Feature Alliance)