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MEDIATION

An ounce of mediation is worth a pound of arbitration and a ton of


litigation! Joseph Grynbaum
Mediation is a process in which a neutral third party (the mediator) assists
the parties to a dispute to reach a mutually acceptable resolution. Unlike
litigation or arbitration, where a decision is imposed by the Judge or the
Arbitrator, in mediation resolution is made on the consent of the parties to
their satisfaction through the assistance and facilitation of the mediator. It is
a Win-Win for both parties. This will help the parties to put a closure to the
dispute rather than wasting time on appeals against an imposed decision
and concentrate on their business and future. It helps to maintain ongoing
relationships and resolve the dispute amicably. Another advantage is that the
entire process of mediation is confidential and the law protects the
confidentiality and the mediator or the parties cannot be called as a witness
is any court or arbitration proceedings to disclose about the mediation
proceedings. Mediation is also much faster and cheaper than any other
dispute resolution processes. All types of civil and commercial disputes can
be resolved through mediation, except certain special legislations like
winding up of a company. Globally mediation is also referred as Appropriate
Dispute Resolution (ADR). It is the only process which focuses on needs and
relationships and seeks not only to resolve the underlying problem, but also
to add value. Here, in fact dispute is considered as an opportunity.
Internationally, opting for mediation is also considered as an expression of
best governance and social commitment. Many MNCs have signed the
Pledge to mediate, expressing their commitment to resolve dispute
amicably to their potential business partners and clients. In India, under the
Arbitration & Conciliation Act, 1996, a settlement agreement made by the
mediator after the resolution of a dispute is equivalent to an arbitral award or

a decree of a civil court. If a party subsequent to the settlement fails to


comply with it, the other party could get the settlement agreement executed
through a court in the same manner as a court decree. Mediation and
Conciliation are terms often used interchangeably and in all practical
aspects, the procedure is the same.

Article on Mediation with reference to


the case laws V. Mohan v. Inspector of
Police1 and Madanlal v. State of Madhya
Pradesh2
Abstract
In order for rape to be a subject matter of mediation it should be a dispute
between two parties. Rape being a criminal offence is not compoundable in
any manner and does not qualify as a dispute. In the cases of V. Mohan and
Madanlal, it was highly inappropriate for the judges to refer the cases for
mediation. However it cannot be concluded that rape can never be a subject
matter for mediation. This is because of the inappropriate definition given for
rape as per the Criminal amendment Act of 2013. Rape being a criminal
offence, should never be a subject matter for mediation. This necessitates a
further amendment to the definition of rape under I.P.C.

Mediation on Rape

V.Mohan vs The Inspector Of Police on 26 March, 2015

Madan Lal Yadav vs The State Of Madhya Pradesh Thr on 15 July, 2015

Mediation is a mechanism of Alternative Dispute Resolution (ADR) to resolve


the dispute. To analyze whether mediation can be resorted to in the case of
rape the first question to be understood is, whether rape is a dispute.
Dispute involves 2 or more aggrieved parties who claim that their rights have
been violated and issue can be settled through negotiation like property
dispute between the brothers in a family. However generally in case of a
rape, there is one aggrieved party against the other who had committed this
offence. Here rights and dignity of one individual is at stake and no that of
both the parties. Moreover, rape is a criminal offence as per the law unlike
the disputes which are civil in nature. Criminal activities affect the society at
large, unlike the civil cases where private rights of the individuals are at
stake. Allowing ADRs clearly undermines the seriousness of this offence and
also gives an undue advantage to the convicts involved in this. But the new
definition given to rape as per the Criminal Amendment Act, 2013 increases
the scope for rape to be regarded as a dispute in certain circumstances. The
scope for mediations in rape cases is thus a debatable topic.
Rape is regarded as an inexcusable crime. It is not an offence that can be
negotiated away. Unfortunately, there have been several instances through
the years where the courts have tried to mediate and find 'solutions'
including marriage of the victim to the rapist, or compensation to the victim,
in lieu of imprisonment. Criminal law regards rape as a serious offence and
does not allow for compounding, i.e. withdrawal of the case by the victim. It
is true that ADR has been gaining momentum, not only in other countries,
but also in India. The Courts have been pushing the agenda of ADR and
encourage litigants to settle disputes rather than engage in protracted
litigation that would be amenable to further appeals. ADR has been
understood as a way to lessen the congestion of the courts and the
overburdened

judiciary.

However, ADR is only suitable for civil cases where essential rights of
individuals are not at stake. It is dangerous to compare a property

transaction or debt recovery transaction where the parties may agree to


resolve their dispute amicably, with criminal offences particularly sexual
offences. Serious offences such as rape are not amenable to plea bargaining,
or

compounding.

Mediation

should

not

be

used

in

rape

case

since rape involves the coercion and power dominance. So mediation cant
be solution as it can ensure a fair solution only between two equal parties.
When rape cases adopt mediation, if often encourage settlement by
monetary
compensation to victim, but monetary compensation cant absolve accused
of

such

a heinous crime not victim get due justice by compensation. Due to social
pressure and patriarchal norms in society, mediation often encourages
marriage between accused and victim. This is gross injustice to victim as she
needs to tolerate her exploiter for whole duration of life. Court trail is basic
right of the survivor. The court proceeding are fair and legitimate while
hearing in mediation is often reduced to character assassination of survivor
and she need to face hostile audience without fair procedure.
The Madras High Court, by its decision in V. Mohan v. Inspector of Police has
recommended alternate dispute resolution in a case of rape. The decision of
Justice P. Devadass appears to endorse negotiation, or mediation in case of
rape. In his judgment, he states that the true victim of the crime is actually
the child that the victim gave birth to. The victim whose parents are no more
is the mother of a child who was born after the rape. The order came on an
appeal and a bail plea filed by the accused, V Mohan, who was convicted and
sentenced to seven years and was slapped a fine Rs 2 lakh by a Mahila Court
in Cuddalore in 2002 for raping the minor girl. He had not served his term.
Therefore, the court has suggested that through alternate dispute resolution,
the accused and the victim find an amicable solution which would then be
used to mitigate the sentence of imprisonment. For this reason, the Court
had released the accused on bail. Whilst so, referring this case to mediation

set a dangerous and undesirable precedent. It must be remembered that


crimes against women were, until recently, regarded as taboo topics, never
to be discussed in public or even dealt with seriously. Looking at them
through the lens of shame rather than rights had resulted in serious
underreporting and also witnesses (including survivor of crime herself)
turning

hostile

resulting

in

acquittals.

It has been a long uphill battle to raise awareness and sensitize the public as
to the seriousness and scale of violence against women. Given this history, it
is regressive to endorse ADR in case of rape as it appears to trivialize the
underlying offence. In this case, Even though the victim rejected the offer to
mediation, the State Legal Services Authority sent a letter to her to appear for

mediation on July 13. The girl, who was residing in her native village till the
announcement of the verdict, has been shifted to a Home in Chennai to keep
her away from all the media attention. The Madras High court order had
evoked widespread resentment across the country for urging mediation
between the accused and the rape victim without obtaining her opinion on
the issue. A section of lawyers and rights activists had vehemently opposed
the move. Meanwhile, the Supreme Court in the State Of Madhya Pradesh Vs
Madanlal on July 1, 2015 said, When a human frame is defiled, the purest
treasure, is lost. Dignity of a woman is a part of her non-perishable and
immortal self and no one should ever think of painting it in clay. There cannot
be a compromise or settlement as it would be against her honour which
matters the most. In view of this Supreme Court observation that mediation
and compromise should not be an option in rape cases, the Madras Hi gh
Court has recalled its order directing the minor rape victim in Cuddalore district

and the accused to appear before the mediation centre.


In the case of Madanlal, the high court on appeal converted the offence of
rape charge against the accused under Sec 376(2)(f) to one under Sec 354
on the ground that an alternative submission to the effect that the parties
had entered into a compromise and a petition seeking leave to compromise

was filed before the trial Judge. It did not find favour with him on the ground
that the offence in question was non-compoundable. On appeal by the State
of Madhya Pradesh, the Supreme Court Showing its dismay with the HCs
judgment, bench observed: Any kind of liberal approach or thought of
mediation

in

this

regard

is

thoroughly

and

completely

sans

legal

permissibility. The court also made the following observation with regard to
compromise to marriage. Sometimes solace is given that the perpetrator of
the crime has acceded to enter into wedlock with her which is nothing but
putting pressure in an adroit manner; and we say with emphasis that the
Courts

are

to

remain absolutely away from this subterfuge to adopt a soft approach to the
case, for any kind of liberal approach has to be put in the compartment of
spectacular

error.

In the case of Madanlal, the victim was of 7 years of age. The victim in the
case of V. Mohan was 15 years old when she was raped. The accused has
claimed that this was not a violent crime, and that it was consensual
intercourse. Earlier minors under the age of 16 were regarded as incapable
of giving consent, and according to the IPC, in addition to non-consensual
rape, sexual intercourse with an underage girl is also rape. However reading
through the newly amended provision of rape under the amendment act of
2013 necessitates the need to look from the perspective of the accused as
well. After the Nirbhaya incident, the law has been changed and the age of
consent has been increased to 18 years. Increasing the age of consent,
whilst a populist move, makes consensual relationships between teenagers a
crime. Due to changes in cultural norms and mores, teenagers are
increasingly sexually active. It is thus quite counter-intuitive to increase the
age of consent. The result of this change in the law is that an 18 year old boy
who is in a voluntary, intimate relationship with a 17 year old girl would be
equated to a violent sexual offender. The law does not distinguish between

the

two

cases.

The decision of the Madras High Court brings to light the dilemma that legal
practitioners and judges face whilst dealing with age of consent issues. The
decision of the High Court was regarding the unamended IPC where the age
of consent was 16 years old. In light of the recent amendment that increases
the same to 18, one can anticipate further instances where the Courts seek
the refuge of ADR, or other such mechanisms, in their bid to be humane and
deliver individualized justice.
While Mediation, as a form of Alternative Dispute Resolution (ADR) has many
advantages like simple procedure, cost effective, reduce escalation of
conflict and save times but it cant be used in heinous offences like rape
cases. Justice J.S Verma Committee report that came out in the light of Delhi
rape incident had strengthened the case by locating rape in the context of
gender justice; ADRs would clearly be retreating from this path. Courts
should appoint special bench for quicker resolve of such type of cases rather
opting for ADRs for speedy trail. The systemic impact of such decisions
cannot be underestimated. Endorsing ADR in case of rape undermines the
seriousness of the offence and opens out opportunities for those accused to
buy their way out, or worse, marry their way out of jail. However the new
definition of rape covering consensual sex between teenagers sometimes will
necessitate the need to refer a case of rape for mediation. In spite of
referring criminal offences for mediation the proper solution would be to
redefine the offence of rape under S. 375 of I.P.C. so as not to include acts
which can be compounded by the parties. This is also necessitated since the
new definition which intends to serve the purpose of gender justice would
only serve justice for women and is in effect disregarding men undermining
their justice. Thus rape is not a dispute which can be resolved by mediation
but the existing definition for rape might lead to circumstances where rape
may be regarded as a subject matter for mediation. A proper definition for

the offence of rape is yet to be discovered in order to serve justice for both
genders.