India's Conflict Resolution Landscape: Exploring Mediation Vis-à-Vis Restorative Justice

Mediation, as per Article 2(3) of the United Nations Convention on International Settlement Agreements Resulting from Mediation, 2018 (or the Singapore Convention) and the Indian Mediation Act of 2023, is a process wherein “parties attempt to reach an amicable settlement of their dispute with the assistance of a third person referred to as mediator, who does not have the authority to impose a settlement upon the parties to the dispute.”^[1]

Mediation had received statutory recognition in the Companies Act of 2013 and the Commercial Courts, Commercial Division, Commercial Appellate Division of High Courts Act, 2015, including in the form of mandatory pre-litigation mediation. Furthermore, Section 89 of the Code of Civil Procedure, in force since 2002, allows for court-annexed mediation in civil (including commercial) cases.[i] According to the data presented by the Law Minister in August to the Lok Sabha pertaining to Mediation Centres operating under the National Legal Services Authority (NALSA), mediation in India has witnessed significant expansion in recent years.[ii] The number of cases submitted for mediation has steadily increased each year since 2018. The financial year 2022-23 had 4,12,990 cases, the highest number, brought for mediation, out of which 92,446 cases were successfully resolved. While this could be attributed to mandatory pre-institution mediation required by statute, the result is that mediation has been resorted to increasingly. Over the past six financial years, stretching from 2018-19 to May 2023, mediation has resolved approximately 21.3% of the total cases, accounting for 3,92,809 out of 18,45,048 cases received.

In 2019, the Supreme Court recommended the creation of dedicated legislation on mediation.[iii][iv] Subsequently, the government introduced a bill on mediation in 2021. A revised version with some notable changes became an Act on September 14^th and was notified in the Gazette of India on September 15^th.^[v] The 2023 Mediation Act aims to encourage and streamline the use of mediation to resolve various types of disputes, including those of a commercial nature. It also intends to establish mechanisms for enforcing mediated settlement agreements and create a mediator registration authority. It also acknowledges mediation conducted online and community mediation for resolving disputes at a community level.

The Act categorically designates certain disputes and subject matters as unsuitable for mediation.^[2] Specifically, these encompass disputes characterized by prosecutions for criminal offences, claims against minors or persons of unsound mind, and disputes affecting the rights of third parties^[3]. These provisions underline the Act’s intent to exclude specific categories of disputes from the scope of mediation, including criminal wrongs.

The Mediation Act reinforces critical principles of mediation, including confidentiality, self-determination, and voluntariness.^[4] These principles ensure that parties willingly engage in the mediation process and that their discussions remain confidential (with certain exceptions).^[5] These principles are the pillars upon which the credibility and success of mediation rest.

Restorative Justice

While mediation continues to gain prominence in India's ADR landscape, another field has been quietly but steadily gaining ground in India, albeit in vastly different domains far from civil and commercial contexts, in response to wrongdoing by children as well as gender-based harm. This is the field of restorative justice.

Restorative justice is an evolving approach that has been steadily garnering attention in India in the past decade. Its successful implementation in diverse contexts worldwide, including child justice, schools, and criminal cases, demonstrates its adaptability and effectiveness.

Like mediation, it is concerned with resolving conflicts but is primarily used in criminal offences. Restorative justice shares some similarities with mediation, often leading to confusion, but a closer inspection reveals fundamental distinctions that set the two apart.[vi] In contrast to mediation, which often operates in civil contexts, restorative justice primarily finds its application in the criminal justice system.[vii] It goes beyond mere dispute resolution and aims to heal the harm caused by serious wrongdoings, including those that would count as criminal offences. Instead of focusing solely on the disputing parties, restorative justice involves the person harmed (the ‘victim’), the person who caused harm (i.e., the ‘offender’), and the community in a process that seeks not just to reach an agreement but also to address the emotional and social consequences of wrongdoing. While settlement is allowed to a limited extent in certain criminal offences,[viii] as of date, there is no explicit statutory provision in India enabling restorative justice.

Restorative Justice v. Mediation

The distinctions between mediation and restorative justice extend far beyond their separate usage in civil and criminal contexts, respectively.

Acknowledgement of responsibility:

Restorative Justice: In the context of most restorative justice programs, the wrongdoer is required to engage in an explicit acknowledgement of their actions prior to commencing the restorative justice process. This initial step is believed to be essential for ensuring there is no fact-finding during the process and the person harmed doesn’t need to exert further emotional labour by having to ‘prove’ their story.

Mediation: Mediation, in contrast, does not impose a prerequisite for admitting wrongdoing. Parties involved can participate in the mediation process without necessitating an acknowledgement of fault.

Focus and Goals:

Restorative Justice: The primary emphasis in restorative justice is placed on restoring relationships and addressing the needs that have arisen. The overarching goal is to create an environment where individuals affected by the wrongdoing can openly express the impact of the incident on them and their ensuing needs and ultimately facilitate the healing process. The outcomes are decided based on everyone’s consensus.

Mediation: Mediation primarily centres on the pursuit of mutually agreeable resolutions, often driven by the self-interests of the parties involved. It aims to find solutions that satisfy both sides without necessarily delving into the emotional or relational aspects of the dispute.

Inclusivity:

Restorative Justice: Restorative justice adopts a more comprehensive approach by ensuring the participation of other affected parties, such as the community, in the resolution process. This inclusivity recognizes the far-reaching ripple effect of an incident of wrongdoing and underscores the necessity for collective responses. This inclusivity recognizes the ripple effect of harm and the collective responsibility in its aftermath.

Mediation: Mediation typically confines participation to the disputing parties directly involved in the conflict, with a limited scope for involving external stakeholders.

Role of Facilitators:

Restorative Justice: Facilitators in restorative justice often assume a more passive role, primarily responsible for creating a safe and conducive environment for dialogue. They refrain from actively guiding the resolution process, allowing the involved parties to take a more active role in devising outcomes.

Mediation: Mediators in mediation actively engage in guiding the resolution process, offering suggestions, strategies, and interventions to facilitate agreement among the disputing parties.

Language and Perspective:

Restorative Justice: Restorative justice employs language that aligns with the underlying belief that the person harmed has needs that can be met by the person who caused harm. This charged language that underscores the concept of harm and focuses on the individuals affected by it. This linguistic approach

Mediation: Mediation adopts neutral terminology, referring to the involved parties as disputants, and emphasizes conflict resolution and problem-solving without necessarily delving into emotional aspects.

In summary, while both restorative justice and mediation are approaches to resolve conflicts, they diverge significantly in their application, foundational principles, objectives, inclusivity, facilitator roles, and linguistic approaches. These distinctions are instrumental in understanding the contrasting dynamics of these two methods within the realm of alternative dispute resolution.

Despite these distinctions, it's crucial to recognize that many principles embedded in the Mediation Act are equally applicable to restorative justice. For instance, the core features of mediation included in the Act – confidentiality, self-determination, and voluntariness – are also essential elements of restorative justice. Just as in mediation, restorative justice participants must engage willingly, and the discussions often involve deeply personal and confidential matters.

While the Mediation Act doesn't mention restorative justice, and steers clear of dispute resolution for criminal wrongs, the principles it reinforces, such as confidentiality and self-determination, resonate deeply within restorative justice. These principles ensure that the restorative justice process remains respectful, consensual, and respectful of participants' rights and privacy.

Complementary Roles: Mediation and Restorative Justice

Rather than viewing mediation and restorative justice as opposing or competing approaches, it's more constructive to recognize that they occupy distinct but complementary spaces within the realm of Alternative Dispute Resolution. While mediation excels in reaching agreements and resolving disputes, restorative justice offers a specialized avenue for addressing harm, fostering accountability, and rebuilding relationships in more serious wrongs. Mediation shines when it comes to reaching agreements and resolving disputes swiftly, often driven by parties' self-interests. In many cases, restorative justice can fill the gaps that mediation cannot. For example, restorative justice is particularly well-suited for cases involving severe harm, trauma, or deeply ingrained conflicts where parties may struggle to find common ground through traditional mediation. In such scenarios, traditional mediation might falter to find common ground, making way for restorative justice to provide a structured platform for acknowledging harm, encouraging responsibility, and fostering profound healing and reconciliation. The distinguishing feature of restorative justice lies in its ability to address the root causes of conflict, promote accountability, and facilitate healing, not only for the direct victims but also for the wrongdoers and the community at large. By acknowledging the humanity of all involved parties and fostering open dialogues, restorative justice aims to restore relationships and reintegrate wrongdoers into society as responsible citizens.

Expanding Horizons in ADR

As India continues to invest in and expand its ADR mechanisms, it is essential to appreciate the nuances of various approaches, including mediation and restorative justice. While the Mediation Act offers a significant leap forward in streamlining mediation processes, restorative justice is still evolving and finding its place within the broader legal framework.

In the face of complex and deeply ingrained issues within our justice systems, restorative justice offers a promising avenue for building a more compassionate and equitable world. While challenges in its implementation persist, the hope for restorative justice is grounded in its capacity to inspire positive change, one restorative encounter at a time.

The author is  a lawyer, visiting faculty in NLUD and NALSAR and also an Adjunct Professor at Vermont Law School, USA. Views are personal.

[1] Section 3(h), Indian Mediation Act, 2023