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

Mediation has the potential to be one of the avenues through which social justice can be achieved, observed Supreme Court judge Justice DY Chandrachud recently.But he added a caveat that the mediation setting should balance the social power, so that the weaker party is not forced into a settlement. Also, it should not promote a culture of impunity."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", Justice Chandrachud said.He was speaking at the virtual event of International Mediation Conference organised by Bangalore International Mediation Arbitration and Conciliation Centre (BIMACC). When it comes to matrimonial disputes, Justice Chandrachud cautioned that mediation setting must be cognizant of the insidious ways in which patriarchy functions and does not let resolution become another way of perpetuating and reinforcing gender hierarchies.Also, in industrial disputes, employers generally tend to have an upper hand in the conciliation process. Hence, the imbalance in social power must be taken note of the mediators while finalizing settlements.The full text of Justice Chandrachud's speech is given below. 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...

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

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