COMMUNITY MEDIATION IN URBAN INDIA

Disha Surpuriya*


INTRODUCTION

Mediation, as an alternative dispute resolution mechanism, has been a part of the Indian judicial regime since time immemorial albeit there is obscure documentation to prove the same.[1] Being a facilitative and amicable mode of settlement, it is preferred as it restores the relationship between parties and focuses on fostering their interpersonal equations.

Over the years, the traditional process of mediation has undergone considerable change and has reformed into a mechanism better suited to maintain peace and promote trade between businessmen, merchants, traders and even nation states. In India, the idea of mediating disputes was first recognized under the Industrial Disputes Act, 1947[2] and thereafter in 1999, vide an amendment to the Civil Procedure Code, 1908 (CPC).[3] Mediation, as presently understood, is divided into:

  • Court-assisted mediation (where Courts refer matters to mediation in consonance with provisions S.89 of CPC); and
  • Private mediation (where parties themselves refer their dispute to a private mediator for settlement).

However, a significant yet ignored concept is that of Community Mediation.

This blog focuses on highlighting how community-based mediation, if exploited in the right ways, can become a game-changer and help reduce the growing backlog of cases in India. It also suggests the advantages of this mediation type and lists the kind of disputes best suited for the same.

HISTORICAL BACKGROUND

The practice of community mediation in India has generally been endemic to villages and rural areas in the form of the ‘Panchayat System’ and ‘Elder Mediation’.
The Panchayat system is an age-old setup having its traces even prior to the 13th century. This system is administrative in nature and also tries to amicably resolve differences between people.[4] It initially received some formalization in the 1950’s (through the Madras Panchayat Act)[5] and at present derives its authority from the Constitution of India.[6]  In the traditional aspect, the Panchayat System is quite interrogative and domineering. The Panchayat convenes in a common place, hears grievances of people amidst a huge crowd of villagers and publicly announces the decisions.[7] Therefore, it violates the key feature of confidentiality as every discussion is carried out openly in front of the villagers. Also, its role is more authoritative and less facilitative as the decisions are generally binding on the parties.

In order to circumvent the issue of confidentiality, the idea of Elder Mediation seems plausible. In this process the elders of the family or respected members of the community privately mediate disputes between the parties thereby, ensuring secrecy and protecting the reputation of disputants.[8] Even today these elders mediate a wide variety of disputes such as domestic violence, infidelity, contractual disputes, theft, land disputes, unpaid debts, religious matters and petty crimes.

WHY COMMUNITY MEDIATION?

Community mediation is a constructive process of addressing differences between individuals, families and varied groups of the community. In addition to being a speedy, voluntary and a party-centered negotiation process, it aims to strengthen relationships, build connections between people and encourage communities to work conjointly for the betterment of everyone.[9] Participation of the aggrieved in the discussion provides an opportunity for a constructive confrontation with the wrongdoer which in turn motivates them to settle disputes without involving the police machinery or the judiciary. This movement affords parties a sense of power and control over their lives and makes them look beyond their own assumptions and see each other as real people with real concerns and needs, even in the midst of disagreement.[10] Multiple mediators help to take into account the perspective of the community affected by the wrongdoer’s act and also provide a better understanding of the cultural constructs that impact the issues being discussed.

The mediators looking over the disputes are generally familiar faces from the community, which is generally based on caste, occupation or geographical areas. This helps to build a connect with the mediators which in turn instills a sense of comfort in the parties and improves the probability of settlement. An example of this is the Marwadi community in Mumbai which resolves disputes of the Marwadi fraternity or the Auto Rickshaw Courts in Kannur district of Kerala which handles conflicts between auto drives with respect to fare or other matters.[11]

Due to the wide gap in the availability of financial resources in cities and villages, several people find approaching judicial organs a luxury which regrettably means that justice is not accessible to many. However, since community mediation is inexpensive it can penetrate into the deepest rungs of the society and guarantee a fair and just life to everyone.

Another important aspect is that it is generally invoked at a very early stage of the disagreement, resulting in a sanguine impact on the living conditions of the community. The Mediation Training Manual of India explains the concept of ‘The Continuum of Tension’ which describes the seven  stages in the spectrum of tension.[12] It explains that when tension at any particular stage is left unresolved, it escalates to the next level making it more serious and more complicated to settle. Therefore, the sooner the cause is identified and addressed, the easier it is to reconcile parties without damaging their relationship and community mediation helps to achieve exactly that. It believes in a fruitful encounter of parties to nip the grievance at the very nascent stage.

Furthermore, the concept of community mediation is based upon restorative theory of justice which focuses on restoring the original status, as it was before the harm was caused, rather than laying emphasis on the laws broken and damage caused. The approach taken by mediators in such a case seeks to protect the interpersonal relationship between the parties and ensures a smooth re-entry of the wrongdoer in the society. They actively hear concerns of both the parties, create guidelines and suggest creative solutions which fits the needs of both the aggrieved and the offender.

Lastly, it is a widely known fact that the wheels of the judicial system are not running smoothly due to delay in the delivery of justice. There has been a steep rise in the number of unresolved disputes especially after the COVID-19 since many lower courts could not quickly adapt and migrate to the digital format of working.[13] Data has shown that in the past 15 years, pending matters before the high courts and district courts have been rising at the rate of approximately 1 million per year[14] taking the total number of pending cases to a staggering 45 million.[15] Courts and jurists, for years, have tried to decode reasons behind the increasing backlog and have repeatedly recommended opting for alternative mechanisms like arbitration, mediation, conciliation whenever possible. Therefore, a switch to either one of these would greatly reduce the stress of the Courts and would also  reinstate people’s faith in justice.

DISPUTES SUITED FOR COMMUNITY MEDIATION

          As discussed above, community mediation is widely practised by people living in villages and small towns to resolve their disputes but unfortunately has not been able to resonate fully with the urban people and corporate houses as the traces of this practise are sparsely seen in the current judicial regime. Community mediation by its very nature is a speedy, participative and an economical method of settling disputes, making it well suited for –

  1. Parties who want an urgent relief or who believe that any delay in obtaining relief would render it worthless; or
  2. Parties who want to seek a remedy beyond what is available in law. For example if A breaks into B’s house and commits theft, the punishment offered by the law is either fine for imprisonment which isn’t directly beneficial to A. Therefore, by opting for community mediation, A can seek compensation for the loss incurred by him on account of B’s actions; or
  3. Amongst groups which have limited financial resources and can’t afford to bear huge expenses of litigation.

Keeping all these things in mind, community mediation seems to be the perfect choice for civil matters of a low monetary value, family disputes, tortious claims and petty criminal offences like theft, defamation, hurt, criminal intimidation, etc.

          According to the Pew Research Center, almost 97.6% of the Indian population falls under the category of low income or middle income group.[16] This gives us a fair idea that a substantial amount of cases, out of the 10.7 million civil cases pending before the District and Taluka level courts in India, were filed by this very category of people.[17] Therefore plaintiffs in these matters are more likely to be in need for a speedy remedy and will also be hesitant to invest heavily in the litigation process, making such cases apt for community mediation. 

COMMUNITY MEDIATION: THE ROAD AHEAD

          While the concept of community mediation has a lot of scope for growth, the journey of harnessing its untapped potential is a long and rocky one. One of the primary reasons why this method has failed to gain popularity in the urban areas is because most people are either oblivious to it or have a misconceived idea of it. In such a scenario, the best way to tackle both these issues is to get the community mediation program associated with the court system of the country. This has multifold benefits[18] – being tied up with the local courts ensures a steady flow of cases to the program, which would showcase that this method enjoys the support of the judiciary. Secondly, court annexed mediations are more likely to be taken seriously as court backup helps in establishing and thereby validating its credibility. Lastly, such programs require a smaller operating budget as major expenses like that of infrastructure and staff are already taken care of. However, a court annexed mediation program has its own pitfalls; it becomes very easy to consider such programs to be mandatory or a part of the legal process.[19] This compromises the fundamental aspect of mediation – voluntariness and might pressurise parties into participating in such process. In order to avoid this, sincere efforts must be taken to uphold the autonomy of community mediation programs and to communicate its procedure to the parties at the very outset.

          Another method to popularise community mediation is by busting some myths around it and educating people about its true facts. Advocates play a key role in this since they are the first ones to be approached by litigating parties. Besides this, awareness drives and legal recognition will also prove to be favourable for community mediation. The Legislature has already taken a step forward by including community mediation in the proposed Mediation Bill, 2021. The chapter therein sets out the circumstances in which community mediation can be resorted to and also the procedure to be followed. This, in addition to some aggressive targeted marketing strategies could increase the visibility of community mediation.

CONCLUSION            

Several litigants, even today, are either unaware of the substitutes available for litigation or are skeptical about their efficiency and legality. Lawyers being the point of contact between disputing parties and the judiciary have failed to bust these myths and strongly advocate for such alternatives due to which parties are hesitant to opt for it. However, all hope is not lost as India has been making a good headway in the last few years. In 2009, the Indian Institute of Arbitration & Mediation launched community mediation clinics as a budget friendly option to litigation which has gained popularity for the quality of justice it provides and also for the workable solutions that were being chalked out.[20] Similarly, the state of Kerala as well has introduced the Community Mediation Volunteer Program in order to reduce the growing backlog of cases and due to its success in one city, this model is being replicated in other cities of Kerala as well.[21] These examples are proof of the scope of growth that community mediation has to offer and the positive change that it can bring in if accepted with wide open arms.

*Disha Surpuriya is a student of Jindal Global Law School and is currently pursuing their LL.M. in Alternative Dispute Resolution (ADR). They can be contacted at LinkedIn and emailed at disha.surpuriya@gmail.com.


[1] Mediation and Conciliation Project Committee Supreme Court of India, Delhi, Mediation Training Manual of India, SUPREME COURT OF INDIA, https://main.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf.

[2] Industrial Disputes Act, 1947, § 4, No. 14, Acts of Parliament 1947 (India).

[3] Civil Procedure Code, 1908, § 89, No. 5, Acts of Parliament 1908 (India).

[4] INDIA CONSTI. art. 243B.

[5] Afcons Infrastructure Ltd. & Ors. v. Cherian Varkey Construction Co. (P) Ltd. & Ors., 2010 8 SCC 24.

[6] INDIA CONSTI. part IX, amended by The Constitution (Seventy third Amendment) Act, 1992, § 2.

[7] 20 ERIN MOORE, GENDER, POWER, AND LEGAL PLURALISM: RAJASTHAN, INDIA 522-542 (American Ethnologist 1993).

[8] James A. Wall, Vairam Arunachalam, Ronda Roberts Callister, Indian and US Community Mediation, SSRN, 1 (2003), http://www.pablolinzoain.com/wp-content/uploads/2016/07/Indian-and-U.S.-Community-Mediation-.pdf

[9] National Association for Community Mediation, Community Mediation Basics, RESOLUTION SYSTEMS INSTITUTE, https://www.aboutrsi.org/special-topics/community-mediation-basics (last visited Oct 20, 2021).

[10] Id.

[11] K N Chandrasekharan Pillai & others, ADR Status/ Effectiveness Study, GAUHATI HIGH COURT (2014) https://ghconline.gov.in/library/document/conference2728072018/II1ADR%20Status_Effectiveness%20Study.pdf

[12] supra note 1.

[13] Pradeep Thakur, Covid hits justice delivery: Backlog of cases rises 19% in a year, crosses 4.4. crore mark, THE TIMES OF INDIA (April 16, 2021), https://timesofindia.indiatimes.com/india/covid-hits-justice-delivery-backlog-of-cases-rises-19-in-a-year-crosses-4-4-crore/articleshow/82094172.cms.

[14] Madan Lokur, What Is Stopping Our Justice System From Tackling the Cases Pending Before Courts?, THE WIRE (May 12, 2021), https://thewire.in/law/india-judiciary-pending-cases-supreme-court.

[15] Kenneth Mohanty, EXPLAINED: CJI Ramana Says 4.5 Crore Cases Pending, Here’s What Has Been Fuelling Backlog In Indian Courts, NEWS 18 (July 18, 2021, 14:21 IST), https://www.news18.com/news/explainers/explained-cji-ramana-says-4-5-crore-cases-pending-heres-what-has-been-fuelling-backlog-3977411.html.

[16] Rakesh Kochhar, In the pandemic, India’s middle class shrinks and poverty spreads while China sees smaller changes, PEW RESEARCH CENTER (18 March 2021) https://www.pewresearch.org/fact-tank/2021/03/18/in-the-pandemic-indias-middle-class-shrinks-and-poverty-spreads-while-china-sees-smaller-changes/

[17] NATIONAL JUDICIAL DATA GRID (DISTRICT AND TALUKA COURTS OF INDIA) https://njdg.ecourts.gov.in/njdgnew/index.php (last visited Oct 20, 2021).

[18] Tim Heeden & Patrick Coy, ‘Community Mediation and the Court System’ MEDIATION QUARTERLY (2000) https://www.mediate.com/articles/cohed2.cfm

[19] Id.

[20] Natasha Mellersh, Community Mediation – Improving Access to Justice, INTERNATIONAL MEDIATION INSTITUTE (February 3, 2017),  https://imimediation.org/2017/02/03/community-mediation-improving-access-to-justice/.

[21] Subeesh Hrishikesh, Why Should India Adopt the Kerala Model Community Mediation Volunteer System, ASIA LAW PORTAL (January 3, 2020), https://asialawportal.com/2020/01/03/why-india-should-adopt-kerala-model-community-mediation-volunteer-system/.


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