Criminal cases, specifically in India, follow the system of Retributive Justice that involves undergoing gruesome trial to actively punish the wrongdoer, to reach the threshold of justice. However, what essentially constitutes attainment of justice is more than avenging one’s present circumstance, but actually lies in reconciliation with the past and reconstruction of a brighter and safer future both for the offender and the victim, for which a more holistic process of resolution is required. Restorative Justice or the process of repair, reintegration and restoration, 1 fundamentally involves facilitative intervention alongside voluntary active involvement of impacted parties, to enable dialogue to reach a victim-oriented outcome, 2 that satisfies a wider definition of justice, that includes attainment of peace and countering psychological abuse. Mediation is a means of voluntary dispute resolution that also involves a facilitative third party that helps parties themselves reach a mutually sought and accepted agreement regarding a dispute. In both cases, finality is attained upon voluntary endorsement of a settlement agreement that ideally should be enforceable. Coalescing their similarities and differences lead to the formation of the Restorative Mediation model, that works on the structure of regular mediation by incorporating restorative principles to rectify past and safeguard the future.3 In criminal cases, such method would lead to in-depth impact evaluation of the crime for assessing underlying damages and other fronts for healing, alongside instilling a sense of offender accountability, that may make him feel less burdened, and also ease out victim resentment. Such process can be applied to any dispute amenable to mediation,4 however, this paper shall particularly focus upon criminal matters. Although retribution is feasible means for deterrence of crimes, its omission of interests of important stakeholders necessitates introduction of reintegrative shaming and victim-interest recognition via the process of Restorative Mediation, either alongside retributive setup or independently, to instil accountability and promote holistic healing in criminal cases. Mediation can be used as a means for achieving restorative justice since it replicates many of its characteristics like conflict resolution, social harmony, restoration of relationships and facilitating short- and long-term interests, all with the help of a facilitative third party that promotes dialogue and voluntary settlement between parties, however, they do have certain deep-seated differences that need to be levelled out while arriving at the process of Restorative Mediation. In between repair and restoration, restorative justice rests upon legal, emotional and rational premises, unlike mediation that largely is emotion centric.5 Restorative Justice revolves around uncovering truth, 6 since one party requires to be held accountable, however, mediation requires split of accountability between parties and promulgates restoration of superficial harmony. 7 Mediation is generally unbiased; however, the involvement of restorative ideas will require inherent biases towards the victim. Further, while restorative justice may involve multiple affected parties like the victim’s family members, mediation essential is only between parties.8 What is to be noted is that restorative justice can be used in serious offences alongside retribution; however, once alternate dispute resolution like mediation comes into picture, the purview of criminal cases that can be resolved through such means narrows down. Hence, the middle ground of Restorative mediation creates a safe and structured dialogue-driven9 setting, that is a more realistic model of mediation, that involves a mixture of legal and emotional aspects. It can only be initiated post crime and victim assessment to gauge if in such cases, mediation singularly would be of use, i.e., instead of a trial; or in conjunction with the retribution model, mainly as a means to cater to unresolved interests’ post-conviction. Accountability of criminal behaviour in a punitive system comes along with formal condemning using punishment, however, what the society inherently requires is reintegrative shaming or informal condemning of wrongdoing alongside rehabilitation and reintegration,10 specifically, in petty criminal and juvenile justice matters. Further, victims require to be incorporated, rather than be alienated from the process, for them to decide the most optimal route towards justice, rather than them and the community being abstractly represented by the State.11 Hence, restorative mediation offers face-to-face dialogue, 12 of one’s needs and emotions, which may lead to psychological easement as an outcome, even if the settlement is per se not signed. This will improve relationships of those involved with oneselves and the opposite party, i.e., the victim particularly may stop viewing the perpetrator as a devil,13 by encouraging mutuality over competitive litigation, 14 which merely ends at proving who is wrong and not what that wrong entails. Collaborative efforts towards betterment can be made. Such mediation can be sought at three stages – post trial, when the case has been resolved and the accused has been convicted; during trial, when evidence insufficiency is delaying outcome but circumstances establish the offender’s criminal involvement; and lastly before trial, in case the victim is not willing to file a case.15 While all three could be adopted in juvenile and petty crimes, supplementary post-litigation restorative mediation is the most adept for serious offences. The initiation of such process, be it at any stage, starts only post guilt is admitted or proven.16 If the offender and victim agree to a victim-offender conference or restorative mediation, 17 then only such method is initiated. Ideally, it should be conducted after considerable time post the act, especially if bodily harm has been committed. Such process requires live interaction between the perpetrator and the victim who seeks moral accountability and relief that could range from mere apology to community service or monetary reliefs.18 In such process, communication is likely to vent emotions, hence, party readiness and voluntariness is key. Like traditional mediation, restorative mediation is also private, voluntary and party regulated. Step one requires pre-mediation preparation of parties by the mediator. Here he assesses victim readiness of the process alongside understanding their views, interests and mental state. He is bound to inform them of the procedural aspects of mediation, alongwith direct confrontation regarding their expectations with the process.19 Relationship goals and other alternatives outside mediation also need to be discussed, possibly to make them realise that litigation is not the only means for justice and can probably be their WATNA20 in certain cases. The offenders’ seriousness and sincerity towards the process is evaluated and their understanding of their accountability is also gauged.21 Characteristics like acknowledgement, acceptance, forgiveness and circumspection of possibilities are encouraged. A victim advocate can be required for victim assistance as a supporter trained in human psychology and relationship dynamics who may guide the victim towards mediation by helping them uncover their underlying interests and help them tackle emotions by either referring them to a therapist or situationally analysing their needs.22 The mediation will be a culmination of joint and private caucuses conducted at a neutral location with an aim to reach a formal settlement, though non-signing is not indicative of mediation failure, since the dialogue itself may cater to certain victims’ interests of venting emotions. Conditions of confidentiality will be laid down. The victim will proceed first, post which the offender shall summarise the victim’s position and interests.23 Then others involved shall be heard and upon agreement of facts and circumstances, problem-solving shall be initiated. If a mediated settlement agreement is signed, it will require enforcement upon non-compliance and the mediator or an independent agency will be expected to ensure the offender’s accountability in case of non-performance. 24 Towards the end, facing one’s emotions, improvement of relationship with the offender, oneself and society, and opening of purviews rather than close entrenched thinking are milestones of a successful restorative mediation over any signed settlement. While in petty offences and juvenile crimes, restorative mediation can be used the sole means of resolution, in serious and grave offences like rape, retribution becomes essential for preventing further harm by the perpetrator and for curbing other like-minded persons from doing the same. Since, Restorative mediation does not guarantee abandonment of recidivism, we cannot take such chances in offences as grave as rape. Community service, providing for healthcare, etc. are not the most proportionate nor optimal outcome in such cases, i.e., plea bargaining is certainly not tenable, hence, trial might be necessary for non-compoundable offences, however, post-litigation restorative mediation can be resorted to, to tackle remaining interests of the victim in addition to ongoing retributive penalty. However, such processes will be more complex, and the mediator will require to be highly skilled in sensitisation techniques and pre-mediation mind marination.25 Parents of murdered children, perhaps would want an answer from the offender as to why did he commit such atrocity, direct confrontation may ease their pain, but that nowhere takes away from the penal liabilities of the offender. 26 However, this sphere is risky and unpredictable since victim reactions could be drastic and worsening. While Restorative mediation stems from traditional mediation, various aspects of the same differ to fit criminal matters. Mediators in a restorative setup require to be over empathetic towards one party, i.e., the victim, this counters the very biasness clause of mediation, since inherent bias towards the victim is inevitable, and technically that is what is also needed. Further it is also debated that mediators can belong to any profession, however, in criminal matters, mediators require a certain legal skill set in conjunction with understanding of criminal psychology. While regular mediation requires no pre-mediation conferences, it is a requisite under restorative mediation. Regular mediators do not have much discretionary power as to termination of proceedings, however, here upon victim evaluation, if found unprepared, the mediator can call off the mediation. 27 The ZOPA28 here is heavily influenced by victim needs, rather than a common ground between both parties. While in regular mediation, distinction of who is right or wrong, is omitted, i.e., it is the parties against the problem, in restorative mediation, guilt has either been established or admitted beforehand, hence, one party clearly is right, while the other is wrong. The mediator in restoration is more actively involved as he is supposed to suggest restitution plans, 29 and evaluate party interests. Regular mediation focuses on damages and promoting mediation over litigation; whereas the contended method works on deeper resolution so that a party does not feel that their damages are reducible to material worth.30 Issues and feasibility of Restorative mediation varies from case-to-case basis, however, there are certain concerns that could arise despite this transformative process, 31 being largely helpful for both offender and victim in deciding their own fate. Mediation could be initiated either pre, post or during litigation but offender’s acceptance of the crime before the mediator may not be incentivised enough, atleast in certain cases, wherein the mediator has no privilege against disclosure in subsequent proceedings. This is what clause 24 of the Mediation bill also suggests. Specifically, in matters relating to child abuse and domestic violence, that are inherently criminal in nature. Hence, the without prejudice clause may be in jeopardy under such situation. In petty crimes, privilege against disclosure might be maintained, however, appearance for restorative mediation is based on primary acceptance of guilt, hence, even if not disclosed it will imply guilt and in cases of pre-litigation mediation, make such claim susceptible to convict the offender, since technically, no explicit disclosure has been made. Pre-litigation restorative mediation in serious offences specially, may also counter the principle behind double jeopardy, article 20(2), not technically, since there are no two trials, but wherein a person might enter into restorative mediation on the premise that he may not have to undergo retribution upon voluntary acceptance of the crime, but the victim prosecutes him post his admission of guilt in subsequent proceedings. Restorative mediation is not appropriate if the offender lacks sincere desire to correct his wrongdoings,32 only to substitute sentence, this is specific to petty offences, since that might just undermine the victim’s power to seek redressal and justice because the offender might not even take the victim seriously. Such a process has high chances of misuse in cases of compoundable and petty offences, that are even allowed for regular mediation, as also suggested under clause 7 of the bill, since, it could be used as an easier escape to circumvent litigation procedure. Therefore, while in serious cases, there is no escape from retribution, in petty offences, an agreement should be signed by the offender acknowledging that recommission of such act will lead to direct litigation proceedings alongside restoration the new victim may require. Criminal Jurisprudence, hence, can be viewed in a fresh light by using restorative mediation as a means to reduce court burden in petty offences and as an additional means of seeking closure by crime victims, which places them before the society unlike criminal litigation. Restorative justice is a concept that can be fulfilled via the route of mediation, as the latter incorporates the essential features of the former, to form a dialogue-oriented system that places parties’ needs at the top of the pedestal contrary to a retributive system that mainly focuses only on the offence. While such process is required to ensure victim recognition, offender rehabilitation and societal integration for both, its place in criminal law in general is dodgy, considering the wide ranging degree of offences committed. While restorative mediation can solely be resorted to in juvenile and petty cases or compoundable offences, it can be used as a supplement in heinous and grave offences to help the victim cope, if alive, or help the family get in terms with the happenings and demand direct accountability from the offender. Such process is mainly divided into three stages, i.e., pre-mediation, during mediation and post such conferences, wherein the mediator has an active role to play. While this process differs from authentic traditional mediation, its very structure moulded to be incorporated within criminal jurisprudence. This system has its benefits and is feasible if followed judiciously, however, it still has certain loopholes that require addressal, possibly by promulgation of laws in such respect. Hence, although retribution is a plausible deterrent, reintegrative shaming and active involvement of stakeholders of the crimes via restorative mediation, will provide a more holistic and just outcome.

Other Important Links

1 Louis Mok and Dennis S.W. Wong, Restorative Justice and Mediation: Diverged or Converged?, 8 ASIAN CRIMINOLOGY 335, 341 (2013).
2 Louis Mok and Dennis S.W. Wong, Restorative Justice and Mediation: Diverged or Converged?, 8 ASIAN CRIMINOLOGY 335, 337 (2013).
3 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 383 (2008).
4 Douglas Noll, Restorative Mediation, MEDIATE (Sept. 23, 2002), https://www.mediate.com/restorativemediation/.
5 Louis Mok and Dennis S.W. Wong, Restorative Justice and Mediation: Diverged or Converged?, 8 ASIAN CRIMINOLOGY 335, 341 (2013).
6 Louis Mok and Dennis S.W. Wong, Restorative Justice and Mediation: Diverged or Converged?, 8 ASIAN CRIMINOLOGY 335, 342 (2013).
7 Louis Mok and Dennis S.W. Wong, Restorative Justice and Mediation: Diverged or Converged?, 8 ASIAN CRIMINOLOGY 335, 342 (2013).
8 Louis Mok and Dennis S.W. Wong, Restorative Justice and Mediation: Diverged or Converged?, 8 ASIAN CRIMINOLOGY 335, 344 (2013).
9 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 388 (2008).
10 Louis Mok and Dennis S.W. Wong, Restorative Justice and Mediation: Diverged or Converged?, 8 ASIAN CRIMINOLOGY 335, 341 (2013).
11 Mark S. Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment, 1(1) WESTERN CRIMINOLOGY REVIEW (ONLINE), https://westerncriminology.org/documents/WCR/v01n1/Umbreit/Umbreit.html.
12 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 388 (2008).
13 Mark S. Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment, 1(1) WESTERN CRIMINOLOGY REVIEW (ONLINE), https://westerncriminology.org/documents/WCR/v01n1/Umbreit/Umbreit.html.
14 Mark S. Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment, 1(1) WESTERN CRIMINOLOGY REVIEW (ONLINE), https://westerncriminology.org/documents/WCR/v01n1/Umbreit/Umbreit.html
15 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 389 (2008).
16 Louis Mok and Dennis S.W. Wong, Restorative Justice and Mediation: Diverged or Converged?, 8 ASIAN CRIMINOLOGY 336, (2013).
17 Mark S. Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment, 1(1) WESTERN CRIMINOLOGY REVIEW (ONLINE), https://westerncriminology.org/documents/WCR/v01n1/Umbreit/Umbreit.html.
18 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 393 (2008).
19 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 392 (2008).
20 Worst Alternative to a Negotiated Agreement. Note Mediation is also an Assisted Negotiation.
21 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377 392 (2008).
22 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 394 (2008).
23 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 393 (2008).
24 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 393 (2008).
25 Mark S. Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment, 1(1) WESTERN CRIMINOLOGY REVIEW (ONLINE), https://westerncriminology.org/documents/WCR/v01n1/Umbreit/Umbreit.html.
26 Mark S. Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment, 1(1) WESTERN CRIMINOLOGY REVIEW (ONLINE), https://westerncriminology.org/documents/WCR/v01n1/Umbreit/Umbreit.html.
27 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 392 (2008).
28 Zone of Possible Agreement.
29 Mark S. Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment, 1(1) WESTERN CRIMINOLOGY REVIEW (ONLINE), https://westerncriminology.org/documents/WCR/v01n1/Umbreit/Umbreit.html.
30 Douglas Noll, Restorative Mediation, MEDIATE (Sept. 23, 2002), https://www.mediate.com/restorativemediation/.
31 Mark S. Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment, 1(1) WESTERN CRIMINOLOGY REVIEW (ONLINE), https://westerncriminology.org/documents/WCR/v01n1/Umbreit/Umbreit.html.
32 Douglas E. Noll & Linda Harvey, Restorative Mediation: The Application of Restorative Justice Practice and Philosophy to Clergy Sexual Abuse Cases, 17 J. CHILD Sexual Abuse 377, 394 (2008).