The Mediation Phenomenon

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The mediation centre at Saddar Court complex in Srinagar offers a perfect platform for litigants to resolve their disputes outside a lethargic judiciary. SAIMA BHAT took a tour of the centre to find out how a few counselling sessions with mediators resolves a matter within weeks which otherwise take decades in normal courts.

Manzoor Ahmed is anxiously waiting for his turn in a two-room apartment built in the premises of Saddar Court complex in Srinagar, the summer capital of Kashmir. He is here to meet a counsellor who will try to sort out a litigation filed by Manzoor against his ex-wife over the guardianship of his son. His ex-wife has taken a seat in the waiting room of the complex. The aura is befuddling, not the one you would expect in a normal court.

The counsellor sits in large room in the mediation centre. The door of the rooms opens and the name of Manzoor and his ex-wife is called. Accompanied by their lawyers, the two get up and move in. The room has a large table on one side. Manzoor, along with his advocate and a friend, take seats towards one end of the table. In most cases, the victims are accompanied by close relatives, usually parents or siblings, who sit in a corner, away from the table. On other end of the table, his wife sits along with her lawyer and brother. The mediator, Ghousia-ul-Nisa Jeelani, a retired Principal and District Sessions Judge, arrives. She faces the couple and starts the session.

Manzoor and Shaheena got divorced after the birth of their son whose custody was given to Shaheena by a court in Srinagar. Manzoor now wants his child back, which Shaheena opposes. The boy is sitting with his uncle, his mother’s brother, carelessly listening to his parents’ arguments, perhaps unmindful of the happenings.

With two chocolates in one hand, the boy seems irritated by the verbal duel between his parents and asks his uncle whether they could leave the room. Before they leave, the mediator stops him, “Who do you wants to live with?” the mediator asks him. The boy doesn’t answer. He is too small to understand the complexity of the matter and leaves the room. The couple start levelling allegations against each other as soon as the boy departs. The mediator interrupts them, trying to put the derailed train of their life back on tracks.

This is their second sitting with Ms Jeelani as she carefully picks points in their arguments and explains the consequences of their decisions. Manzoor wants to spend few hours with his son every evening while Shaheena says she would not let her son spend more than an hour on weekend with Manzoor, as has been decided by the court where the litigation was recently filed. The case was then shifted to the mediation centre for counselling the couple.  After the session is over, Manzoor is devastated. He desires to remarry Shaheena for a better future of their son and feels guilty for all that has led to the divorce with his Shaheena. But the mediator gives them another date and asks Shaheena’s brother to make her understand how the divorce is going to affect her future. She is agitated and doesn’t want to remarry. Both parties leave quietly.

The mediator, Ms Jeelani, says that counselling is the best way to settle issues as both the warring parties are made to sit side by side which helps them understand and clear their misunderstandings. The primary motive of mediation is to bridge the communication gap. “All civil matters, according to section 79 of civil procedure of the court, should go for mediation first and it is the responsibility of concerned judges to shift such cases first for mediation”.  The mediation centre is a new concept which was introduced in Delhi in 2007. In Kashmir, this concept was adopted in 2010. The mediation cell in Sadder Court was started in November 2011. It comes under the State Legal Services Authority and every district has its own mediation centre. In Kashmir valley, there are 14 mediation centres presently where legal cases involving minors, matrimonial disputes, guardianship and property disputes are referred.

Since November 2011, 170 cases have been registered at the mediation centre in Saddar Court with 36.9 percent cases settled successfully. All the mediators have been trained at Supreme Court and all members have been nominated. In the first batch of 14 mediators, there were five retired sessions’ judges and nine advocates.

Experts believe that the mediation centres were developed to clear the backlog cases pending in courts. In this way, it was expected that the burden on judiciary will lessen and courts could dedicate full time to the cases that need urgent attention. Adfar Shah, a sociologist also believes that the establishment of mediation cells should address the institutional dysfunction. He says mediation cells will act as tributaries of the judiciary to hasten the process of justice. “It doesn’t mean that mediation centres are an easy, speedy and accessible provision of legal aid. It is a much needed step forward for the marginalized sections of the society, who feel hopeless with the conventional justice procedures and even die without getting justice and redressal of their issues.”

The whole process of mediation requires a third party to settle the issue; a mediator who is a neutral person and never gives her/his own suggestions. A mediator has all the powers of a judge but he/she never passes judgements. Instead, he/she asks for suggestions from the feuding parties and assists them to reach a settlement outside the court. The final agreement is signed by both the litigants and is sent back to the court from where it was referred. The agreement reached by the mediator is binding on the two parties. However, some advocates feel it is just a compromise and not a solution.

“Mediation, reconciliation and arbitration are mandatory in court matters but when courts are over burdened, it is not possible to give much time to each single case,” Jeelani says. Sharing the details of a civil case in 1985 when she started her career as a Munsif Magistrate, Magam, she says the same case returned to her in 2011 when she was Principal District Judge and had only one year left for retirement. “So you can understand how much time, energy and money it takes to continue a case in normal court” says Jeelani.

Meanwhile, another case is called up for hearing at the centre. A lady walks in. She is having a property dispute with her brother. It is her second hearing but her brother has not turned up. Jeelani tells her that she will return the case to court and will write about the absence of her brother in the findings. But the lady pleads her not to shift the case back as they have been fighting the case from the last 10 years. “There have been cases when the parties have not been satisfied with the mediation cell. We usually return such case back to court. But after some time, they come back, requesting us to take their cases,” says another mediator, Soffiya Mudasir, an attorney herself. Jeelani adds, “It is not the party who doesn’t appear in hearings but their advocates, some high-headed men and women who keep the cases lingering so that they become their money minting machines. And they tell their clients that nothing happens in mediation cells.”

Mudasir says that once a new case is admitted, they explain the litigants how lucky they have been to get an opportunity of resolving the matter in a time bound manner. Warring parties appear in joint sessions. Sometimes, individual sessions are held, as per the need of a case. Usually the cases take three to four sittings but a cap of two months is kept for the mediators to resolve the matter or shift the case back to court. “In Kashmir, the implementation of Shariat is very weak. That is why we get so many cases regarding the distribution of property and women rights which are otherwise clearly explained in the Holy Quran,” Mudasir says.

In Kashmir, mediation is done in different circumstances. Many matrimonial disputes are resolved at women’s police station or at the state women’s commission. However, Mudasir says that such type of mediation doesn’t have any legal sanctity as it is not resolved under the rule of law, “But in the case of court mediation, nobody can challenge the order. Our settlement doesn’t need any proof. It is the order for all which has to be followed” she added.

People associated with the new concept feel that it should be given proper publicity so that the people are aware about its merits. “In most court cases, no party is happy with the results. But here we go for win-win results because we make both parties feel that something really good has happened for them. In the end, both parties leave happily. In fact their relations improve and they start living happily which was otherwise not possible” says Jeelani.

In a similar case, two siblings had filed a property dispute in a district court. The case was won by one party while the aggrieved party appealed against the order in High Court which upheld the verdict of lower court. The other party then appealed in Supreme Court which shifted the case back to High Court and asked them to send the case to mediation centre. After counselling, the case was resolved. It took 35 years for the two litigants to reach a settlement which was made possible in just three sittings with Ms Jeelani.

“During counselling, some people get violent. They are asked to keep calm. Else, they are sent to judicial custody for a day. The disgruntled parties usually get more violent and start fighting outside mediation centre” says Soffiya Muzamil, an attorney and a mediator.

(All the names of litigants have been changed to maintain their privacy)

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