The Supreme Court, on March 8, 2019, ordered an eight-week timeframe to mediate the seven-decade long Ayodhya dispute (Referral order or RO). This case involves specific constitutional questions and a determination of certain property rights. With the hiatus for mediation in its fourth week, it is appropriate to delve into the rationale of this decision.
In Afcons Infrastructure v. Cherian Varkey 2010 (8) SCC 24, the Supreme Court clearly laid down a method for referrals to mediation. Primarily, a court is required to frame the issues in relation to mediation. Further, other key considerations include, the mindset of the parties, a prima facie observation on whether the case can be resolved through mediation and the appointment of expert mediators keeping in mind questions of neutrality. Afcons also categorically lays down that matters of public interest cannot be mediated.
In the present instance, there was a procedural challenge to the RO. However, the suitability or unsuitability of a referral to mediation based on the parameters laid down in Afcons was not considered. Moreover, given the steps involved in a mediation process, such as drafting mediation briefs by counsels, preparation of settlement positions by each party and customisation of the sessions for the process, to name of few, the RO does not offer the process the legitimacy for resolution that it is capable of.
It is necessary to point out that the RO has not been the first attempt to negotiate or settle this case. Three earlier publicly known attempts were made which failed primarily owing to political non-alignment. To separate this step from earlier attempts, the RO could have explicitly narrated aspects that the Court views as appropriate for mediation, thus effectively using a combinatorial method of litigation and mediation.
Given the importance referral orders play in establishing precedents and hallmarking mediation, the RO could have become the best possible illustration and effective use of the process but on its own does not offer the legal or logical rationale to the process.
As a step towards resolution through peace and reconciliation, mediation has seen successful utility through truth commissions (TRCs) and special tribunals in countries like Australia and the US. In Australia, for instance, TRCs were set up as a reconciliation method for the aboriginal genocide cases. In the US, cases involving the Vatican were mediated by specialised experts who are trained in cases involving religious questions.
In a mediation, an opening statement by a mediator, which kickstarts the process plays a significant role in setting the tone of the resolution sessions. These statements often involve borrowings from religious texts such as the Quran, the Bible and/or the Bhagavad Gita. In the field of mediations involving issues of religion, an understanding and active recognition of principles and the reconciliatory nature that is promoted by religious texts has been found to be necessary for a resolution expert to be considered as a neutral for the process.
With the RO, it was essential for the Court to break the impasse that has been reached in relation to the sentiments of the parties involved in the matter, so that dialogue could have been initiated in a more transformative manner.
Just a Breather?
A mediators’ job is to customise the process to the case. This includes framing of issues (as the Court could have done in this case), identifying gaps between mediation sessions, different caucus formations (caucuses are private sessions with each stakeholder at the option of the mediator or the parties).
Moreover, a panel as a whole should indicate expertise and neutrality. This is not so in the present instance. A consideration could have been to keep the panel out of public knowledge to avoid the external scrutiny. This would have allowed the mediators to spend less time establishing their facilitative role in the process.
An important aspect of the RO was the powers conferred on the mediation panel to “pass necessary orders” and as mentioned earlier to make a four-week report, which itself draws away from the non-adjudicative nature of the process. Mediators and parties are bound by confidentiality requirements vis-a-vis laws of evidence and admissibility of matters spoken at mediation, should the case not conclude at mediation and go to trial.
In the present instance, assuming that the parties settle the case, the court then needs to question if the contents of the settlement should be a compromise decree or between the parties, which is an option in a mediation where the settlement agreement (given its voluntary and collaborative resulting nature) is agreed not to be made public through a filing in court. Was the intent of the court to draw distinctions between private party mediations and those between state actors? The answer is no. Thus, raising another issue relating to enforceability of mediated agreements involving state actors.
Probably Won’t Work
Several studies have shown that judicial support in India is fundamental to reviving, popularising and affording legitimacy to mediation. Court-annexed mediation centres have suffered primarily due to the lack of focus on good quality mediators and providing them with expertise to lead specific cases.
Another failure at a public scale to the mediation process will shake confidence in a resolution method, which is battling and struggling with its own infrastructure and implementation setbacks in the staggering justice dispensation framework.
With the RO, the detriment to mediation as a process is more at stake. On the face of it, this step by the Court seems to be more of a time buying strategy to adjudication and the hope remains that the benefits of the mediation process — where better preparation from trial is a usual outcome — is the optimistic end result to this mediation. For now, let’s look forward to the four-week report and ponder about the eight-week result.
(The author is a Delhi-based advocate and Research Fellow – EADR Initiative with HumLab)