Introduction
The pursuit of social justice and equality is a critical challenge in this interconnected world of the 21st Century. Systematic discrimination, suppression, and inequalities always threaten the existence of an egalitarian society, a fundamental principle of social justice, and equality. Amid this landscape, the judiciary, which played a pivotal role in ensuring a more just and equitable society, is overburdened with pending cases. According to the National Judicial Data Grid, District and Taluka Courts are burdened with around 40 Million Cases[1], and around 5.9 Million[2] and approximately 71000 cases[3] are backlogged, which are waiting to be heard at different High Courts and Supreme Courts, respectively. During this period, mediation emerges as a tool to settle conflicts, promote justice to ensure equality and preserve the fundamental principle of an egalitarian society. Abraham Lincoln had also once said[4]:
“Encourage Mediation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in litigation in terms of fees, expenses, cost, and time”
Mediation offers a structured and flexible approach to resolving disputes through dialogue and negotiation. Mediation is a non-adversarial method that involves the active participation of the parties in a non-adversarial setting. It is aimed at settling not only conflicts but also addressing the underlying issue and promoting understanding between the parties. It aligns with social justice and promotes equality and human rights. It emphasizes collaboration and de-escalation of tensions. An effective mediation makes a lifelong impact on the Citizen and promotes social justice and equality.
Concept of Social Justice
Social Justice in day-to-day life means fair treatment and equal status of all individuals in society irrespective of their sex, caste, religion, place of birth, and other things. The term Social Justice is often used to refer to fairness and equality and is commonly applied to movements that seek inclusion of exploited or marginalized populations. The Indian Constitution established the concept of Social Justice in its Preamble in three types i.e. Social, Economic, and Political[5]. Further, the Indian Constitution endorsed social justice through its different articles. Some of them are Article 15[6] prohibits discrimination on different grounds, Article 17[7] abolishes untouchability, Article 21[8] protects life and personal liberty, and Article 38[9] promotes social welfare and secure social order among others. Indian Judiciary has also come forward to define the term through its different judgments. In the case of Kesavananda Bharti vs. State of Kerala[10], the honorable Supreme Court has held that Social Justice means the availability of equal social opportunities to every person for their personal development without any discrimination based on sex, caste, or race and no person should be deprived of social conditions necessary for development. Further, Social justice has been held as the basic part of the Constitution of India in the case of S.R. Bommai vs. Union of India.[11]
Mediation: Historical Background and Development
The origin of mediation in India is very old and can be traced back to the Vedic Period when disputes were resolved in Panchayat at the community level by the third party namely Panch Parmeshwar which consists of a group of elders of the village.[12] As time passed, mediation gained legal recognition along with other alternative dispute resolution before independence. Post-independence, the Industrial Disputes Act, 1947[13] is the first step where detailed procedures were prescribed for settling disputes out of court in Chapter II of the Act.[14] However, the formation of Lok Adalat through the Legal Services Authority Act, 1987[15] is a concrete step towards shaping the concept of Mediation.
The judiciary has also come forward along with the legislature to reform the Indian Justice Delivery system. The formal visit of the American Legal team to India for the Inter-country dialogue motivated the Apex Court to reform the Indian judicial system[16] and introduction of the Section 89 into the Code of Civil Procedure to promote alternative methods of dispute resolution was the baby step towards the same.[17] But, the reform was challenged by a group of lawyers after which the Malimath Committee was instituted. The recommendations of the committee include the need for the Court’s order to refer the dispute for settlement by way of an alternative method of dispute resolution instead of the traditional method of litigation.[18] Additionally, “it was made essential for the traditional Courts to refer the cases before alternate method of resolution” after the case of Salem Advocates Bar Association vs. Union of India.[19] It was also made essential for some Commercial cases where there is no urgency, to go through the alternative way of dispute resolution primarily mediation in the Section 12A of the Commercial Courts Act, 2015.[20] These are some of the ways through which mediation got its legal recognition and developed.
Role of Mediation to Ensure Social Justice
Mediation is one of the ways of alternative dispute resolution and has an advantageous position over the other traditional approaches while resolving the dispute as unlike litigation which perpetuates win-lose outcomes, mediation aims for win-win resolutions where no party is left dissatisfied or disgraced.[21] It also seeks to foster dialogue, understanding, and mutual agreement between conflicting parties. The nature of the mediation compels the parties to think from an interest appraisal perspective to acknowledge the interest of every party involved. Mediation can contribute differently towards promoting social justice as it supports the principles of egalitarian society by endorsing inclusivity, fairness, and a peaceful resolution of conflicts. It empowers individuals and communities to address inequality and build a more just society through dialogue and collaboration. However, below are some of the points through which mediation promotes social justice in society.
1. Accessible Justice– the traditional approach to justice i.e. Litigation is not accessible to a large portion of the people due to its high cost, awareness, and delayed justice among other reasons. Although steps have been taken to curb the same for example access to free legal aid, still it is not accessible as many of the crimes go unreported.[22] At the same time, mediation makes a heroic entry when it comes to the speedy or cost-effective mode to resolve the dispute in a well-versed manner and it can also do wonders while acknowledging various aspects of a dispute which are often untouched by the traditional practice.
2. The Building of the Egalitarian Society– an egalitarian society is a place where everyone is equal and enjoys basic human and fundamental rights. Mediation gives a good opportunity as it fosters dialogue and understanding among diverse groups within communities. Further, it helps to build social cohesion by promoting empathy, tolerance, and mutual respect among the different groups of society.
3. Preventing escalation– the traditional practice of litigation often leads to escalation due to the delay in hearing and an overburdened number of cases. But, mediation at the same time address conflicts early and constructively. It can prevent disputes from escalating into more serious confrontations or violence. This proactive approach contributes to maintaining social stability and harmony in the society.
4. Inclusivity and diversity– It is a well-known fact that India is a diverse country where more than 1500 languages[23] are spoken throughout the borders of the country but at the same time Article 348(I) of the Indian constitution[24] provides that the processes of the higher courts shall be in the English language until the parliament otherwise provides by the law. This provision led to the courts being inaccessible to many people in India due to the language barrier. At the same time, mediation promotes inclusivity by recognizing various languages and respecting diverse perspectives, identities, and experiences. Mediators can facilitate constructive dialogue that will also lead to meaningful outcomes and where differences are acknowledged and valued.
5. Empowerment and equality at the grassroots level- Mediation empowers marginalized individuals and groups by providing a platform for them to voice their concerns and grievances, ensuring equal participation in decision-making processes, addressing systemic inequalities, and empowering them at their grassroots level.[25]
Advantages and disadvantages of mediation in social justice
Mediation has many advantages when it comes to ensuring social justice. It offers many benefits.[26] Mediation is a cooperative problem-solving method that preserves relationships between the parties and offers flexible and creative solutions where the interests of any parties are not disgraced. Unlike traditional practices such as litigation, it offers timely and inexpensive justice which makes it more preferred. The proceedings of the mediation are confidential unlike in the traditional way of litigation except for rape cases where the identity of the victim is hidden.
On the other hand, meditation has also its disadvantages. It may not address the power imbalance between the parties effectively, especially in a case where the victim is unprivileged.[27] Agreements of the mediation have no legal force unless parties choose to legalize them through a court process and this lack of legality or enforceability often leads to challenges to ensure accountability. The mediation process is confidential but at the same time, it can also be non-transparent and non-accountable towards the public. Mediation can undoubtedly resolve the issue which arisen recently. However, it cannot resolve the deep-rooted issue that underlying structural inequalities that perpetuate injustice.[28] It relies on voluntary participation from all parties, making it less effective in achieving meaningful resolution.
The Legal framework for mediation
The history of mediation in India is very old. Disputes in old India or the Vedic Period are resolved in Panchayat at the community level by the third party namely Panch Parmeshwar which consists of a group of elders of the village.[29] During the British era, it gets some legal recognition. However, post-independent the first legislation that recognized the concept of mediation was the Industrial Dispute Act, 1947.[30] The mediation is primarily mentioned in chapter II of the Act which consists of 7 Sections from 3 to 9. Some of the important are as follows, Section 4 allows the government to appoint conciliation officers to mediate as well as to promote industrial dispute settlement, as specified in the official gazette.[31] Section 5 empowers the government to form a Board of Conciliation to settle industrial disputes with certain specifications[32] and the government can constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing other functions that are assigned to them under Section 7 of the act.[33] Another legislation was Section 89 of the Code of Civil Procedure which promotes the alternate method of dispute resolution. Under this section the court may formulate acceptable settlement terms, provide them with parties’ observations, and then reformulate them after their observations, referring the matter for mediation and the other method of dispute resolution.[34] The Mediation Act, 2023[35] is a breakthrough step toward promoting Mediation in India. It acknowledges pre-litigation, online, and community mediation, aims to enforce domestic settlement agreements, establishes the Mediation Council, sets time limits, maintains confidentiality, and introduces mediator appointment guidelines. The act has been described as a system that encourages the use of mediation, particularly institutional mediation, to resolve all kinds of disputes, including commercial ones. The act consists of 9 Chapters, 65 Sections, and 10 Schedules. Some of the important provisions are the following. Section 3(H) defines Mediation as a process where parties seek an amicable settlement through a stranger, such as a mediator, who does not impose a settlement.[36] Section 2 reads that it applies to the mediation that is conducted in India, where all parties live or conduct business, where the mediation agreement prescribes the resolution of disputes, where mediation takes place internationally, where parties are the government and its agencies, or where any other kind of dispute is judged suitable for mediation[37] and the time limit of the completion of the mediation within 120 days of the first appearance which may further extend to the 60 days is given under Section 18 of the act.[38] Thus, it can be said that the Mediation Act, 2023 is a vital step toward securing social justice, equality, and an egalitarian society.
The Future of mediation to ensure social justice
According to the reports of the Centre for Effective Dispute Resolution, 41% of mediators and 43% of lawyers saw an increase in mediation. During the COVID-19 Pandemic, the benefits of mediation cannot be denied.[39] However, mediation in the realm of social justice is both beneficial and challenging. Following are some of the important aspects that can be addressed in order to maximize the role of mediation in expanding social justice.
1. Corrective Justice – Principles of corrective justice align closely with mediation, which prioritizes repairing harm and rebuilding relationships over punitive measures. In social justice contexts, corrective mediation can provide a forum for dialogue, accountability, and healing for both individuals and communities affected by systemic injustices.
2. Adaption with AI – Artificial intelligence and technology can play a pivotal role in deciding the future of mediation in this digital era when the world is witnessing a digital revolution every day or week. The integration of mediation with recent technology can enhance the efficiency and fairness of mediation.
3. Endorsement of the legislation – Endorsement of the legislation is equally important in order to promote mediation into public policy and legal frameworks. Although, steps have been taken in the form of the Mediation Act 2023 more similar steps need to be taken and the implementation of the law is equally important.
Conclusion
Mediation has existed in India since the Vedic periods in the form of panchayats, and since then it has proved to be the pivotal force in navigating the path of social justice and equality. The current justice system, i.e., litigation, has been seen as the win-lose method, while at the same time, mediation gives a win-win scenario to the involved party as the dispute under mediation has been resolved through constructive dialogue, unlike litigation, where the dispute has been resolved through the non-constructive method. Recently, the 50th Chief Justice of India has opined that the “Motto of the Union government and its agencies should be ‘mediate, not litigate,”[40] which also depicts the increasing official acceptance of mediation as the way to solve the issue. By adopting and embracing mediation and its method, we can give voice to those traditional people who hesitate to approach the courts, which will bring equality and social justice to our Indian society and consequently to an egalitarian society
[1] National Judicial Data Grid, Welcome to NJDG – National Judicial Data Grid (ecourts.gov.in) (last visited July 4, 2024).
[2] National Judicial Data Grid, Welcome to NJDG – National Judicial Data Grid for High Courts of India (ecourts.gov.in) (last visited July 4, 2024).
[3] Supreme Court of India, Supreme Court of India | India (sci.gov.in) (last visited July 4, 2024).
[4] Abraham Lincoln Online, https://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm (last visited July 4, 2024).
[5] INDIA CONST. preamble
[6] INDIA CONST. art. 15
[7] INDIA CONST. art. 17
[8] INDIA CONST. art. 21
[9] INDIA CONST. art. 38
[10] 1973 4 SCC 225
[11] 1994 SCC (3) 1
[12] Mediation and Conciliation Project Committee, https://mcpc.nic.in/?100013#:~:text=Mediation%20in%20India%20dates%20back,legalised%20Alternative%20Disputes%20Resolution%20mechanism. (last visited July 4, 2024).
[13] Industrial Dispute Act, 1947, No. 14, Acts of Parliament, 1947 (India).
[14] Industrial Dispute Act, 1947, ch. II, No. 14, Acts of Parliament, 1947 (India).
[15] Legal Service Authorities Act, 1987, No. 39, Acts of Parliament, 1987 (India).
[16] Mekhla Chakraborty, Development of Mediation in India: A Brief History, Via Mediation Centre org. (July 4, 2024, 17:09 PM), https://viamediationcentre.org/readnews/ODc=/DEVELOPMENT-OF-MEDIATION-IN-INDIA-A-BRIEF-HISTORY.
[17] Code of Civil Procedure Act, 1999, Sec. 89, No. 46, Acts of Parliament, 1999 (India).
[18] Delhi District Court, https://delhidistrictcourts.nic.in/mediation-articles#:~:text=The%20Malimath%20Committee%20while%20making,to%20compel%20the%20parties%20to (last visited July 4, 2024).
[19] AIR 2005 SC 3353
[20] Commercial Courts Act, 2015, Sec. 12A, No. 4, Acts of Parliament, 2016 (India).
[21] Robert A. Baruch Bush and Joseph P. Folger, Mediation and Social Justice: Risks and Opportunities 27 OJSDR, 1, 13, (2012).
[22] National Crime Records Bureau, https://ncrb.gov.in/en/crime-india (last visited July 4, 2024)
[23] Government of India, Ministry of Education, https://www.education.gov.in/sites/upload_files/mhrd/files/upload_document/languagebr.pdf (last visited July 4, 2024)
[24] INDIA CONST. art. 348, cl. 2.
[25] Robert Supra note 14
[26] U.S. office of Special Counsel, https://osc.gov/Services/Pages/ADR-Advantages.aspx (last visited July 4, 2024)
[27] Amrisha Jain, Mediation: Advantages and Disadvantages (July 4, 2024, 18:20 PM) https://viamediationcentre.org/readnews/MTgx/Mediation-Advantages-and-disadvantages.
[28] Lawshelf.com, https://www.lawshelf.com/coursewarecontentview/advantages-and-disadvantages-of-mediation (last visited July 4, 2024)
[29] Mediation supra note 12
[30] Industrial supra note 13
[31] Industrial Dispute Act, 1947, sec. 4, No. 14, Acts of Parliament, 1947 (India).
[32] Industrial Dispute Act, 1947, sec. 5, No. 14, Acts of Parliament, 1947 (India).
[33] Industrial Dispute Act, 1947, sec. 7, No. 14, Acts of Parliament, 1947 (India).
[34] Code of Civil Procedure supra note 17
[35] Mediation act, 2023, No. 32, Acts of Parliament, 2023 (India).
[36] Mediation act, 2023, sec. 3h, No. 32, Acts of Parliament, 2023 (India).
[37] Mediation act, 2023, sec. 2, No. 32, Acts of Parliament, 2023 (India).
[38] Mediation act, 2023, sec. 18 No. 32, Acts of Parliament, 2023 (India).
[39] Centre for Effective Dispute Resolution, The_Seventh_Mediation_Audit_2016-1.pdf (cedr.com) (last visited July 7, 2024).
[40] Live Law, https://www.livelaw.in/top-stories/chief-justice-of-india-cji-dy-chandrachud-mediate-do-not-litigate-226382 (last visited July 7, 2024)
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