Alternative Dispute Resolution or ADR includes processes that are out of court proceedings, wherein the parties decide the course of dispute resolution once a conflict occurs. The burden of the courts have increased due to pendency of court cases and suits this has resulted in ADR gaining paramount significance in almost every jurisdiction. ADR is generally classified into five types: negotiation, mediation, collaborative law, arbitration and conciliation. Considering the practicalities in the court of law many judges pass cases to Lok Adalat, where a retired judge sits neutral party and facilitates conversation between the parties.
The word ‘juvenile’ originates in ‘juvenis’ a Latin term meaning young. Juvenile justice is the legal system that aspires to protect all children, bringing within its ambit the children in need of protection, besides those in conflict with law. However, in the present times concept id often used along and interchangeably with ‘delinquency’ – which describes children who are in conflict with law, conjuring an image of violence.
The Juvenile Justice System in India has always been marked by the tussle between the protective approach of juvenile justice and the traditional approach of the criminal justice system.
The issue regarding consensus on the age of young offenders has been in the lime light especially after the public outrage because one of the offenders in the 2012 gang rape case was a few months short of 18 years of age. Consequently the Juvenile Justice (Care and Protection of Children) Amendment Act 2016 was enacted. As per the Act a “child/ juvenile” means a person who has not completed eighteen years of age and “child in conflict with law” means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. However the Act keeping in mind the current scenario allows for juveniles of 16 years or older to be tried as adults for heinous offences like rape and murder. Heinous offences are those which are punishable with imprisonment of seven years or more. The Act seems to be in clear violation of the UN Convention on the Rights of the Child which mandates that all children under the age of 18 years be treated equal.
ADR as a concept in not recent. In the international field it has been put to use for a long time. Many of the ADR techniques were used in the post-World War 2 era to resolve the conflicts and mitigate the repercussions of the Cold War. In today’s scenario ADR techniques specifically mediation is viewed as a popular technique international scene to resolve disputes of criminal nature specifically in juvenile justice programs specifically in Romania, Canada, England, Finland, and the United States.
Though this has been used with some degree of success in civil and matrimonial disputes concerning adjudication between private parties, its applicability to criminal law is questionable. Traditionally ADR and Criminal Justice System looked upon as different concepts. In the case of criminal disputes, penal provisions are sought after to deter or penalize as the act is perceived as a crime against the state and society at large and the parties, especially the victims, have a relatively insignificant role in the proceeding. In the case of ADR the idea or intention is not to punish the wrongdoer but to reach a mutually agreed solution and, to put in a lay man’s term, move on as quickly as possible. The parties have greater autonomy, they have the power of decide the terms of settlement, the jurisdiction, and a third neutral party who would facilitate the proceedings. The proceedings unlike the conventional adjudicatory mechanism is cost efficient and time bound- one of the important features of ADR which gives it an upper hand over the court room system where the long and meticulous proceeding has resulting in pendency with waiting period stretching up to years.
The conventional methods of Criminal Justice System have many pitiful repercussions. The state of offender, both alleged and convicted as well as of the victims is saddening. A plethora of judgements and new articles are available for one’s perusal that high light the state of under trial prisoners who bear the brunt due to the delay in initiation or conclusion of proceedings due to the pendency in addressable of matter in the already over worked courts . William Ewart Gladstone had once said, “Justice delayed is justice denied”. This maxims hold true in this context. The prisoners more often than not are condemned to the judicial custody for a period longer highest term of punishment prescribed under the offence under IPC. Even in cases where the proceeding have concluded irrespective of the decision of the court the accused is domed with the title of being guilty. There is hardly a hint of restorative justice in the adversarial system. The judges while deciding the punishment refer to the laws available and decide the severity of the punishment on the basis of the gravity of the offence. The intention is to set an example in the society and discourage others from following the same path, more importantly to punish the individual of the crime that he/she has committed against the state. Rarely do they focus on the state of the victims and implications of the offence, committed by the offenders, on the victim or realization of the same by those who are guilty. It ignores the real victim, often compelling him/her to find extralegal methods of getting justice. Life after the completion of the sentence by those convicted is not easy. There is very little that the present justice system does in order to rehabilitate them. The society cruel perception adds to this by labelling them as criminals for the rest of their lives. They are often left with no option but to back fall into the life of crime as they don’t usually have an option of uplifting themselves, more importantly they don’t have the understanding to relate to the moral and practical/ real implications of the offence on an individual and society at large. In the cases of young offenders these issues become even more serious as their minds are impressionable and they are susceptible to committing an act which they may or may not consider as an offence as they lack the maturity to understand the nature and gravity of the acts. The Juvenile Justice Act and related provisions of the IPC acknowledge this issue and to an extent even address it by providing a different set of punishments and special provisions for trial, jurisdiction of courts, special remand houses. However these laws fail to impart a sense of realization or remorse in the young offenders. There is need for protection of the interests of the child, to ensure, by appropriate intervention, stabilization of the youth in trouble. Despite the Constitutional guarantees and a plethora of child-centric legislations and civil rights, innumerable Indian children, face widespread discrimination and deprivation. Crime and violence constitute a major impediment for development and social integration for a plural society like India. The adversarial model of criminal justice has proved costly and counterproductive. Communities and victims should be given rights in finding ways to correct the wrong. Mediation is a better way to resolve disputes without formal court intervention. It is a means of achieving justice in the individual case. The author hopes to determine whether mediation can be a satisfactory aid to the present system in order to cater to these issues.
Mediation – definition and techniques used abroad
Mediation uses a neutral third-party to bring about a voluntary resolution, and settlement. The mediator tries to amicably resolve the dispute between the two parties in order to facilitate materialization of a mutually agreed settlement. The purpose is to find a practical and sustainable solution, which both parties see as serving their best interests. Mediation is the most sought after form of ADR, where the issue of criminal justice is concerned Mediation is a process in which an expert neutral, mandatorily appointed, helps the disputants to reach an enforceable agreement that resolves their dispute. It is voluntary thus, either party can terminate it at any time without any adverse consequence. The element of party autonomy is present. The decision-making is in the hands of the parties themselves, who are the main participants. It is confidential. Disputes are usually resolved in a matter of weeks, and the cost is far less than in litigation. Rights of the parties are placed in the perspective of long term and larger interests. Some of the techniques of mediation that are used in the Criminal Justice system are, Victim-Offender Mediation Programs (VOM) whose purpose is to promote direct communication between victim and offender. Victims who participate are provided with an opportunity to ask questions, address the emotional trauma caused by the crime and its aftermath, and seek reparations; Community Dispute Resolution Programmes (CDRP) seeks to dispose of minor conflicts that have not been disposed of and are clogging criminal dockets. Victim-offender Panels (VOP) developed as a result of the rise of the victims’ rights movement in the last two decades. It particularly campaigns against drunk driving by providing the convicted drunk drivers with a chance to appreciate human cost and implication of drunk driving on victims and survivors. Thus like VOM it also intends to decrease the likelihood of repeat offenses. Community Crime Prevention Programs includes a plethora of activities, including media anti-drug campaigns, silent observer programs, and neighborhood dispute resolution programs. Private Complaint Mediation Service (PCMS) provides the mediation as an alternative to the formal judicial process of handling criminal misdemeanor disputes between private citizens. Apart from the above programmes, there are also available the mechanism of sentencing circles, ex-offender assistance, community service, school programs, and specialist courts. These programmes point towards a gradual shift from deterrence to reparation, as a mode of criminal justice in some nations. In a nutshell, they show the application of restorative justice.
Out of the abovementioned techniques on Victim-offender Mediation programme may be appropriately applicable to the cases involving young offenders. In this paper the author intends to limit the research on one of the aforementioned techniques i.e. VOM and focus on the scope and implication of the technique in the India’s criminal justice system, specifically cases involving young offenders.
Victim-offender Mediation Programme
VOM is a process in which a meeting between the offender and victim guided by a trained mediator. With the help of VOM the victim and the offender given an opportunity to express their feelings and perceptions and there try to resolve the conflict and to construct their own approach to achieving justice in the face of the crime. It gives them an opportunity to dispel their misconceptions. The aim of the meeting is reach on an agreement on steps that the offender can take to repair the harm suffered by the victim. Thus in a way the process promotes the principle restorative justice of the Criminal Jurisprudence
VOM like any other mediation, ensures voluntary participation by the parties. However one can always contend that the motivation behind the offender’s consent is to avoid onerous outcome of adjudicatory system. The role of the mediator and the mediation to promote a dialogue between the offender and the victim and aspires to achieve an outcome that is perceived as fair by both parties in order to resolve the conflict resulting injuries to the victim and the offender. It ensures platform to the parties to play a more proactive role in defining the implication of justice to their particular case.
The process involves four phases: case referral and intake, preparation for mediation, the mediation itself and any follow up necessary (e.g., enforcement of restitution agreement). Often, a case is referred to VOMP after a conviction or formal admission of guilt in court; but, some cases are diverted prior to such a disposition in an attempt to avoid prosecution. For the mediation to proceed the mediator must ensure that:
The parties meet to identify the injustice, rectify the harm (to make things right or restore equity), and to establish payment/monitoring schedules. They present their versions, grievances. For the victim there is a chance to speak about the personal dimensions of victimization and loss, tell the offenders how the act effected their lives. It give them a chance to seek answers for the lingering questions. While the offender may express remorse and give explanations pertaining to the circumstances surrounding his/her behaviour. Then the parties agree on the nature and extent of the harm caused in order to identify the acts necessary to repair the injury to the victim. The terms of the agreed reparation like restitution, in-kind services, payment and monitoring schedule, etc are documented in writing.
In Canada the first victim offender mediation began in 1989 in Kitchener, Ontario when a youth probation officer convinced a judge that two youths convicted of vandalism should meet the victims of their crimes. After the meetings, the judge ordered the two youths to pay restitution to those victims as a condition of probation. 
Thus in Canada the VOM probation based and post-conviction sentencing alternative. In 1978 the first US programme was launched in Indiana. The programme then spread to other parts of US and Europe, consequently there are about 800 VOM programmes in the US and Europe. The concept has found recognition in the following countries:
How is VOMP different form other forms of mediation?
Until now the process of mediation has been limited to divorce and child custody cases, community disputes, commercial disputes, and other civil court-related conflicts. The VOM method delves in the disputes of criminal nature wherein the focus unlike the usual course the focus is not on guilt determination rather the emphasis is on discussing the full impact of the conflict on the parties’ lives.
In the usual mediation the parties are referred to as disputants, as both the parties a view as perpetrators of the conflict, and the aim is compromise and reach a settlement. In a VOM the stage of guilt determination generally over, one party is the victim of the crimes committed by the other, same being admitted and accepted.
The VOM is dialogue driven and focuses on victim empowerment and offender accountability whereas the other mediation are settlement driven. The dialogue fulfils the emotional and informational needs of victims that are central to both the empowerment of the victims and the development of victim empathy in the offenders, which can help to prevent criminal behavior in the future, which is far more important the restoration of economic losses incurred.
Advantages of VOMP in cases involving juvenile delinquents
Individuals who have experience with the juvenile justice system-- including victims, witnesses, and criminal justice professionals-- usually voice two major complaints. First, many believe that juveniles often get away with criminal activity. Second, victims often seem to have no input into delinquency matters. These complaints result in disillusionment and a belief that offenders generally are not held accountable for their actions.
These programmes have high client satisfaction rates, victim participation rates, restitution completion rates, and result in reduced fear among victims and reduced criminal behavior by offenders. If victim-offender mediation is undertaken as an alternative to (or even merely prior to) traditional adjudication, then the victim is given the power to shape the treatment that the offender receives. It gives the victim a chance to be directly involved in holding the offenders liable for their actions. Thus those who are directly involved and effected by the crime get the chance to play a pivotal role in restoring peace and resolving conflict. The offenders are directly responsible for their behavior and therefore must learn the full impact of what they did and develop a plan for making amends, to the degree possible, to the persons they violated. Offenders' failure to complete the restitution agreement results in further court-imposed consequences. Thus it in true sense strive to reform the offenders.
It provides a unique opportunity to resolve conflicts in highly victim-sensitive manner while considering the needs of individual victims and offenders rather than focusing on offender driven procedure that is prevalent in the Criminal Justice System. Thus the individuals and communities rather than the State, who is the sole prosecutor in criminal cases, are preferred.
The intention or aim is to restore the emotional and material losses of the victim and to reform the young offender but not to punish them. Thus VOM has more positive role as the offenders are encouraged to realise their misdeeds and are given an opportunity to redeem themselves by actively restoring losses rather that passively accepting the punishment, which may at best create fear.
Under Section 89 of the Code of Civil Procedure, the Judge, in appropriate cases, suggests recourse to the court’s own mediation center. The lawyers there are trained as mediators and provide the service free of cost. It is important to mention here that the Court can only send the parties to mediation; it cannot direct that they settle their dispute through mediation. Beyond making a bona fide effort, nothing more is asked of the parties. As mentioned earlier, if a party does not wish to continue the mediation, it has the right to terminate it. When the matter is sent back to the Court, no mention is made of what transpired in the proceedings, not even that a particular party desired to opt out due to the confidentiality clause. There have been several cases where litigants come unwillingly to the mediation table, and leave satisfied with the agreement they reach. The section is only applicable to civil cases.
Following the recommendations of the 142nd and 154th Law Commission and Malimath Committee report the concept of plea bargaining was introduced in the Indian Penal Code, 1973, as an alternative to traditional adjudicatory mechanism which were slow and increased the burden of the courts. The concept is nothing but an agreement in a criminal case between the prosecution and the defence. The accused changes his plea from not guilty to guilty in return for an offer by the prosecution or when the judge has informally made the accused aware that his sentence will be minimized, if the accused pleads guilty. It reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases. The relevant sections are only applicable in cases of specific minor offences. The concept prevails in many Western Countries. In Brady v. Unites States the American Judiciary upheld its validity. It differs from VOM in the sense that there is hardly and scope for party interactions.
Many countries across the world are shifting from the adversarial model of criminal justice partly or wholly to models of restorative justice in order to yield promising results in crime control. Mediation as a form of restorative justice is more collaborative, consensual and inclusive- the characteristic of indigenous systems of justice. The role of the state is reduced whereas the participation of communities encouraged. This is not to be confused with the khap panchayat. Due process, transparency, inclusiveness and accountability are desired features of the restorative justice. The system respects diversity as a social fact, interrelatedness as a virtue and correcting/healing the harm as a major objective.
According to section 82 of the IPC, children below the age of below the age of 7 years are presumed to be incapable of committing any crime as their actions can’t constitute an offence. Similarly section 83 of the Code states any act by a child between 7and 12 years will not constitute an offence under section 40 of the IPC if the child is unable to understand the nature and consequences of his actions. Thus, the Indian Penal Code recognises the special status of a child vis-à-vis an offence.
Prescribing different treatment for juvenile offenders is an offshoot of the new penology, which came to be applied with the realization that courts, procedures and prisons meant for adult offenders could hardly be expected to serve the interests of juvenile offenders. Erstwhile system exposed delinquents to contamination due to incarceration with other criminals. The nation’s future citizens deserve compassion and best care. A child is born innocent, and responsibility should be attributed to such environmental factors that have stirred his criminal tendencies, whose removal might mold him into a person of stature and excellence.
The new JJ Act is enacted to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, herein under and for matters connected therewith or incidental thereto. Thus it is based on rehabilitative justice unlike the criminal justice system which is largely based on the retributive justice system. The object of the Act is to fulfill the duties imposed on the state to ensure that all the needs of children are met and that their basic human rights are fully protected.
As per the code of criminal procedure, criminal offences can also be classified as compoundable and non-compoundable offences. Compoundable offences are those offences where, the complainant (one who has filed the case, i.e. the victim), enter into a compromise, may do so through ADR mechanismas, and agrees to have the charges dropped against the accused. However such a compromise, should be a "Bonafide," and not for any consideration to which the complainant is not entitled to. Once an offence has been compounded it shall have the same effect, as if, the accused has been acquitted of the charges. There are some offences, which cannot be compounded. The reason for this is, because the nature of offence is so grave and criminal, that the Accused cannot be allowed to go scot-free. All those offences, which are not mentioned in the list under section 320 of CrPC, are non-compoundable offences.
Up until now, mediation as a method to resolve the disputes has been used in various matters including cases where conflict pertaining of property crimes and minor assaults, domestic violence, live in relations and etc. The Supreme Court time and again encourages parties in these matters to settle disputes through mediation.
As mentioned earlier, before a case is sent for mediation one has to ensure that the mediators have to be adequately trained and educated so that they are equipped to handle the cases. Additionally the cases need to be screened in order to determine which cases are appropriate for mediation, keeping in mind the nature of the offence, its compoundability, the mental frame of the juvenile and his capability of understand the repercussion his actions.
It is well established that one should not adopt a “one size fit all” formula while applying mediation to resolve disputes of criminal nature. Along with the factors mentioned above one has to consider the intention with which the juvenile enters the VOMP, the effect to the meeting on the victim. If the effect is adverse i.e. the victim is intimidated or is momentarily, physical or mental incapacitated the meeting may be counter-productive.
In my opinion, VOMP may be also used in the non-compoundable offences in addition to the already existing mechanism as the aim to make the offender financially liable and realise the impact of their action to deter them. However the abovementioned considerations must be kept in mind while screening them for VOMP.
Financial liability in this context does not necessarily limit itself to payment of compensation, it may also include making good the loss suffered by the victim by assisting/ aiding him otherwise. For example in a case where the juvenile has destructed a property of the victim the offender may be asked to help the victim restore the property. This again would depend on the various factors mentioned above.
Restorative justice better than retributive because it focuses on the victim and the offender rather than the society and the state. Recently on 19th March 2017, Chief Justice Khehar recognized the status of victims in criminal justice system and lack of assistance and awareness they possess. As stated earlier VOMP ensures a more pro-active role of the victims.
It is important to note that young offenders have impressionable minds thus they may need time to understand gravity of their actions, the present system hardly has any scope of reformation.it labels them as criminals at a young age and for an act which they may not completely understand. This label turn into an epithet which they have no choice but to carry for the rest of their lives. Punishment may instill fear but not realization that the act committed is not only illegal or immoral but has severe consequences. Thus in the long run, it will fail one of its main purposes i.e. to deter others from going down the same path of crime.
The victims of heinous offence may not be able to put forward their grievances. The process may be used as a delay tactic or may provide the offender another opportunity to run. Thus the offender may not always agree to VOMP for bonafide reasons. He may feet to be under pressure to reach an agreement, rather than genuinely seeking to repair the harm done.
Another critique which extremely relevant in cases of juvenile delinquents where mediation is invoked is CONSENT. Consent is an essential feature of Alternate dispute resolution, none of the ADR techniques can be initialed or concluded in the absence of consent. As per the Indian Contract Act, a minor in incapable of giving consent. The solution to this problem may be obtaining the consent of the guardian.
Often, mediation is argued to be successful where there is a moderate level of conflict not in cases of serious offences. Alternate dispute resolution is an appropriate remedy, where the parties have an ongoing relationship (which provides a significant motivation to achieve reconciliation). But this is not usually the case with victim-offender mediations. Additionally, a financial compromise can’t be reached in all circumstances as it may be difficult to measure the loss in monetary terms. One must be cautious in applying VOMPs and other ADR mechanism in serious cases as the offender’s intention to may be to find a leeway of the legal entanglement.
To ensure that mediation happens on an equal footing in a crime that is primarily to do with the assertion of power is highly problematic. This leaves a lot of scope for implicit and explicit coercion towards the survivor. Amendments to the Code of Criminal Procedure and judgments of the higher courts, including the judgment in Sathyavani Ponrani v Samuel Raj by the Madurai bench of the Madras High Court, have ensured that survivors of rape have an opportunity to be heard, and have more participation in the process, otherwise the matter is primarily between the state and the accused. Active participation of the survivor in dispensing criminal justice can be secured by ensuring that a special public prosecutor is appointed if the case warrants so; by allowing applications to assist the prosecution; by ensuring that the survivor is represented through a counsel at all stages of the process and that there is appropriate mechanism for witness protection.
The cases must be referred to ADR after proper screening. It is pertinent to mention here that the courts act in clear violation of Article 6(1) of the European Convention of Human Rights, which provides for the right to a fair trial, when it refers cases to mediation instead of hearing them on the grounds that it has to decrease its back logs.
“It is the spirit and not the form of law that keeps the justice alive.”- LJ Earl Warren
The main object of separating juvenile delinquency from the criminal justice system I to rehabilitate the young offenders in the hopes that they would not carry criminal behavior into adulthood. There is a need for humanisation of the criminal justice experience for both the victim and the offender. The characteristic of individuality which is inherent in Mediation reassures one that it is a practical and potentially highly successful approach to juvenile justice. When it is combined with a structured competency development programme like VOMP it is more likely to facilitate reduction of recidivism. Mediation holds offenders directly accountable to the people they have victimized. It allows for more active involvement of crime victims and community members (as volunteer mediators and support persons) in the justice process, and reduces further criminal behavior of offenders. During the early 1980s, many questioned whether crime victims would want to meet face-to-face with their offender. In the western countries, it evident form the trajectory of the development of the concept that an in-person meeting between the victim and offender, in the right circumstances, may be fruitful. However one has to be cautious while using mediation in juvenile justice case. There is no one method that fits all cases. There may be shortcomings but if mediation is looked as an assisting aid rather than an alternative even these short comings may be addressed.
Section 2 (12) , (35) and (13), Juvenile Justice (Care and Protection of Children) Amendment Act2016
 Restorative justice involves meetings and dialogues to fix responsibility for wrongdoing and to find a solution acceptable to all three parties. More importantly, it directly addresses victim needs and therefore emphasises the private dimensions of a public wrong. It is not a substitute to the formal criminal justice system, but a good backup to reduce its workload and to increase the sense of justice in the system as a whole. It looks at the needs of crime victims which are today outside criminal justice concerns, leading to frustration and alienation of victims from the system itself. He would perhaps feel vindicated if the offender were to make an effort to right the harm, even if partially, by restitution. The victim would respect the system if it could make the offender assume responsibility and persuade him to transform himself. Restorative justice therefore aims to respond to the needs of the victim and help sustain interpersonal relationships while reinforcing offender obligations. Justice, in other words, should engage with victims, offenders and the right-thinking members of the community in an effort of reconciliation and repairing of harm. This approach begins with a concern for victims and their needs even when no offender has been identified or apprehended.
 The only aim of the system is to punish the offender.
 Deterrence theory
 Retributive theory of punishment
 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=5ff4acc7-53ef-4d12-a0a8-1b41ab12beba&txtsearch=Subject: Arbitration
 John R. Gehm “Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical Frameworks”, Western Criminology Review 1 (1). [Online]. Available: http://wcr.sonoma.edu/v1n1/gehm.html.
 https://www.ncjrs.gov/ovc_archives/reports/96517-gdlines_victims-sens/guide4.html; Marty Price, Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and Offenders? VORP, available at http://www.vorp.com/articles/crime.html
 The purpose of referring to the provision is to only throw a light on the mediation mechanism that is currently followed in the county.
 Section 265A to 265L in Chapter XXIA
 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=5ff4acc7-53ef-4d12-a0a8-1b41ab12beba&txtsearch=Subject: Arbitration
 397 U. S. 742 (1970)
 Amendment Act 2016
 Under clause (3) of Article 15; clauses (e) and (f) of article 39, article 45 and article 47 of the Constitution of India
EXAMPLES OF COMPOUNABLE OFFENCES (where express consent of the court is not required)
EXAMPLE OF COMPOUNDABLE OFFENCES (WHERE PERMISSION OF COURT IS REQUIRED)
 As per section 320 CrPC.
 Retributive system views crime as an offence against the state and offers almost no help to the crime victims.
 Section 10, 11 of the Act of 1872
 Mohri Bibi vs. Damodar Das Gosh (1909) I.L.R. 38 M. 312