INTRODUCTION

Mediation is an informal, voluntary process that enables the parties to resolve disputes outside of the courts. It allows for arriving at an amicable settlement agreement without the enforcement of any statutory legal provisions with the facilitative assistance of a neutral, unbiased third party, namely the mediator. While mediation is an ideal mechanism for dispute resolution for matters such as divorce, child custody or even commercial matters involving corporate deals, the question arises whether it could be a possible method for dispute resolution in criminal matters and especially when such matters involve a crime against a woman as it is a fragile matter concerning upholding of the woman’s self-respect and dignity. Crimes against women as of 2021 are an exorbitant 64.5% of 1,00,000 women in India.1 These statistics are based on the data reported; however, the number is likely to be much higher as there are several instances of crimes against women going unreported as a result of women being asked to hush it up to protect the accused or to prevent themselves from being blamed despite being victims of sexual harassment. Despite the awareness that the #Metoo movement has created in bringing sexual harassment to the forefront and encouraging women to speak up about their encounters, scepticism about coming forward still prevails for the aforementioned reasons and also because the conviction rate in sexual harassment crimes is a meagre 19% as compared to a decent 47% in overall crimes. agreements resulting from mediation, concluded by parties to resolve a commercial dispute.

MEDIATION IN CRIMINAL MATTERS

In the present legal framework, no substantive law exists that provides for mediation as a dispute resolution technique for criminal cases. In fact, in the proposed Mediation Bill, Schedule I specifically lays down blacklisted matters which cannot be resolved via mediation and criminal matters happens to be one of them. Being a form of alternate dispute resolution, mediation isn’t the go-to remedy for criminal matters since criminal cases cannot be categorized as a dispute unlike familial, child custody, motor vehicles, corporate matters which can be negotiated upon. In criminal matters, considering that the offence is against the State, it would not make sense to mediate criminal cases. The accused in such cases are considered as a danger to the society at large and therefore the only remedy sought here is mostly that which is penal in nature. The victim and the society would like to see the accused convicted and behind bars as only that would be seen as justice done to them. In the criminal justice system, a number of other ADR practices could be of assistance such as Victim Assistance programmes, Community crime prevention program, sentencing circles, exoffender assistance, community service, plea bargaining school programmes which are not traditionally considered as a part of the criminal justice framework. Mediation is a better alternative to litigation in cases where it is vital that the relationship between the parties does not deteriorate further. However, in cases of severely violent and brutal crimes, victimoffender mediation cannot replace punishment. Mediation, being an informal process cannot enforce any penal consequences as per the legal statutes and therefore, it is best if criminal matters are handled by the courts.
Esha Roy, Crime against women rose by 15.3% in 2021: NCRB, THE INDIAN EXPRESS,
https://indianexpress.com/article/india/crime-against-women-rose-by-15-3-in-2021-ncrb-8119739/

MEDIATION- A REMEDY FOR SEXUAL HARASSMENT CASES?

Sexual harassment cases are even trickier. After the Nirbhaya case in 2012, India strengthened its laws and passed the Sexual Harassment of Women at Workplace Act in 2013. The Criminal Law (Amendment) Act of 2013 was also enacted based on the recommendation of the Justice JS Verma Committee which made substantial amendments to laws relating to sexual offences to ensure that sexual harassment is no longer trivialized.2 While this was seen as a progressive legal reform, the law failed to accommodate for gender neutrality and rectify the procedural hinderances that slow down the grievance redressal process. Sexual harassment is categorized as a criminal offence and is punishable under many laws in India. However, there is no substantive law that recommends mediation for sexual harassment cases. This is so because here the dignity and self-respect of the woman is at stake. While the process of mediation may require confrontation of the victim and the offender, which could possibly bring back trauma for the victim, over a period of time, the confrontational approach could actually help the victim to vent out her feelings, for both parties to describe the full versions of their narrative, help protect the victim from secondary trauma in the long run and prevent the matter from becoming public which would have been inevitable if the matter was taken to court. It could help both parties understand each other and apology to the victim throughout the sessions might help her accept the occurrence and overcome the trauma caused to her much more speedily. Mediation in these instances could also assist the parties to arrive at tailor-made solutions unique to the interests of the parties and such might prove to be useful when the perpetrator is a family member and when the victim believes it to be better than divorce as that may bring unnecessary comments from her family about being a divorcee. The perpetrator might be able to better understand the impact of their behaviour and would be more open to accepting his mistake and making amends to rectify such behaviour in the future. There are two models of mediation proposed for dealing with Sexual Harassment cases- one, the Four Phase Process Model and two, the Settlement Conference Model. The aim of the former model is for the parties to understand each other’s point of view, for the frustrations to be expressed in a positive manner, for their own views to be validated and lastly so that they can arrive at their own resolution. This model is to be used when the problem on hand is reversible, where the victim wants the behaviour of the perpetrator to stop, where no malicious intentions are involved, when the behaviour can be corrected and where the perpetrator understands his conduct to be wrong and accepts his mistake.3 On the other hand, this model would not be appropriate where the behaviour involved is physically severe and maliciously motivated. In this model, the first stage is where both the parties are required to give their opening statements narrating their stories directly to the mediator. Here, the mediator essentially attempts to understand the interests and concerns that each party wishes to address through the process.4 Second, the parties face each other to share their understanding of the other party’s perspective which would assist each party in clearing any misunderstanding that may exist between them. At this stage, if the parties seem completely unreceptive of the other’s point of view, the mediator is likely to request a caucus to get past an impasse or to obtain other hidden information that each party may not be directly willing to tell the other. In phase three, the mediator will assist the parties to acknowledge the understanding of each other’s perspective even though they may not agree. Lastly, in stage four, the mediator will enable the parties to come up with their own suggestions, help them stay focussed, give a reality-check to their suggestions and facilitate brainstorming.
Vikram, Mediation in criminal disputes in India: Mediation in cases of sexual harassment, THE IMW POST,
https://imwpost.com/mediation-in-criminal-disputes-in-india-mediation-in-cases-of-sexual-harassment/

LIMITATIONS OF MEDIATION IN SEXUAL HARASSMENT CASES

Mediation is a very useful process when looked at holistically, but it does have certain limitations when it comes to adopting this method in sexual harassment matters. Apologies are often not sufficient for all the harm caused by sexual harassment. While mediation allows for venting of emotions, the underlying values of mediation which are cooperation and reconciliation are contrary to the emotional needs of the sexual harassment victim. The perpetrator tends to have a better bargaining position, and this may end up resulting in a deal which may not be beneficial to the victim or the society, but the victim may be left with no choice except to accept the deal due to the power dominance that the perpetrator holds. It is because of this dominance, that more often than not, the victim does not wish to interact with the perpetrator face-to-face and therefore the myth that the victims want to confront their harasser is for the most part, untrue. Also, if the proceedings are terminated prematurely, then the process would have been a waste of time, resources, and emotional energy. This process will not allow the victim to get an opportunity to exonerate herself as the truth is immaterial to the outcome of the mediation which is highly likely to disappoint or frustrate the victim. The ‘without prejudice’ nature of mediation could possibly be compromised upon, and it is very likely that the victim would not be satisfied with merely putting an end to such behaviour but would in fact want to punish the alleged perpetrator for his act. Mediation requires parties to move from positions to interests and needs which may prove to be extremely difficult in such matters. Further, since mediation is voluntary and therefore is entirely up to the parties whether they wish to engage in this process, it may be difficult to convince the victim to attempt mediation and sometimes it may not be just to even expect the victim to resort to mediation. More importantly, mediation shouldn’t even be recommended if sexual harassment has resulted in physical harm or assault. In such instances, the employer should immediately discharge the perpetrator from the job. Mediation is an informal process and while that characteristic comes with its own benefits, in sexual harassment cases, it may be more appropriate to opt for the formal route consisting of clear legal principles which would assist the victim to define their injury in a context where the assertion of rights is legitimate.

INSTANCES OF MEDIATION IN SEXUAL HARASSMENT CASES

In Mohan V. State, the Madras High Court had referred the rape of a minor to mediation and observed that the case was fit for attempting a compromise between the parties.5 Once again in Samuvel V. Inspector of Police, the High Court of Madras referred a case of rape for mediation where the victim was a minor and became a mother as a result of the rape because the accused agreed to marry her.6 In various other instances, the accused has gotten bail by blaming the girl as having been of loose character and therefore shifting the blame onto the girl, making it seem like the girl was responsible for the sexual harassment as she ‘called for’ such behaviour. The courts have let the perpetrator go scot-free merely because after committing rape, he has married the victim. By doing this, the courts have acknowledged it to be valid behaviour for the perpetrators to get away with rape just because they entered into matrimony with the victim. However, in Aparna Bhat V. State of Madhya Pradesh, the Supreme Court has condemned these actions of the courts and ordered that bail conditions and orders should avoid using stereotypical and patriarchal terminology about women and must strictly adhere with the requirements of the CrPC.7 More importantly, the Supreme Court has clarified that while adjudicating cases that involve gender related crimes, the courts should not suggest or entertain any notions towards compromises between victim and the accused to get married and neither should mediation be suggested or mandated between them or any other form of compromise as it would be beyond their powers and jurisdiction to do so.

CONCLUSION

Therefore, considering that resorting to mediation in criminal matters could entail treading on a slippery slope, the proposed legislation could, instead of blacklisting the matter i.e., keeping it outside of the scope of mediation, provide an option to the victim to decide for themselves whether they wish to attempt mediation with regards the criminal dispute or take it to court. While academicians may subscribe to the view that mediation shouldn’t be recommended for criminal matters, as discussed, in sexual harassment cases, mediation could prove to be beneficial in the long run based on the facts and circumstances that the victim finds herself in and therefore, she should be given the choice whether she would like to settle the matter privately via mediation and avoid the entire hassle of going to court since women have to face a lot of backlash from society even when they are victims of rape. Society has a tendency to blame the women as have been seen when courts give judgments by characterizing the woman as one with loose character, poor morals, and values and that she instigated such rape upon herself by the way she dressed. In order to avoid such unwanted commentary from courts and their family, mediation might prove to be a more private and confidential means to resolve such disputes. Thus, it seems that the proposed Mediation Bill should be amended to allow for voluntary mediation in matters that are criminal in nature.
1.  Mohan v. State, M.P No. 2/2014 in Crl. A No. 402/2014 order dated 18.06.2015.
2. Samuel v. Inspector of Police, Crl. O.P. No. 1881/2015.
3. Aparna Bhat v. State of Madhya Pradesh, 2021 SCC 230.