POWER IMBALANCES IN MEDIATION : THE ANALYSIS OF STRUCTURAL AND GENDER VULNERABILITIES IN SETTLEMENT BARGAINING

Author- Dr. Madhuri D. Kharat

Assistant Professor, School of Law, The NorthCap University, Gurugram

Abstract

Mediation is often praised as a participative and collaborative way to the adversarial litigation. This article claims, however, that the normative assumption of a level playing field does not take into account structural and gender based vulnerabilities ingrained in the system and destabilizing bargaining power. Economic dependence, patriarchal social norms and information asymmetry are some of the issues that tend to make mediation a place of empowerment to a process of pressured compromise in the Indian context. This is especially notable in the matrimonial and domestic cases, where the settlement pressure, which is often motivated by the issue of judicial pendency, can unintentionally override the consideration of domestic violence or coercive control. This work critically analyzes the Mediation Act, 2023, which has some major institutional gaps, such as lack of mandatory training on trauma-informed and pre-mediation screening of abuse.

INTRODUCTION

The concept of mediation is glorified as a cooperative act instead of litigation - the procedure with which conflicting parties retain their freedom and develop a mutually acceptable settlement by their own choice. Its increased acceptance in India is symptomatic of a wider shift in the world toward consensual dispute resolution. Nonetheless, the normative assumption of a level playing field between the parties that negotiates is not always true. In reality, the mediation can inadvertently introduce the effects of the pre-white socio-economic and gendered inequalities. Once vulnerability informs consent, mediation is no longer an empowerment platform but it becomes a pressurized compromise mechanism. The article critically looks at how the integrity of settlement bargains is affected by power imbalance especially structural and gender based vulnerabilities.

POWER IMBALANCE : A HIDDEN DETERMINANT OF MEDIATION OUTCOMES

Inequality in negotiation ability of parties is a condition known as power imbalance. Power is not economic as many people tend to believe, it is multidimensional. The structural power is caused by differences in education, caste, class and financial security. Patriarchy, social expectation, stigma and dependency are the sources of gender power. Though the mediation theory places importance on neutrality, the truth of the matter is that negotiations can be skewed because of unequal bargaining power. As demonstrated by research conducted by UN Women and the World Bank Gender Data Portal, gendered vulnerabilities affect decision-making and put pressure on people to either solve a conflict at the expense of future rights. Such dynamics are disregarded and consent will be doubtful and settlements will run the risk of concealing coercion.

GENDERED VULNERABILITY IN MATRIMONIAL AND DOMESTIC MEDIATION

The most referred type of mediation category in the Indian mediation system is family disputes. Marital breakdown is perceived socially and disproportionately among women, and creates greater psychological pressure to settle than to litigate. This vulnerability is amplified by reliance on the spouse as a provider of financial stability, social legitimacy or custody of a child. Even with abuse, mediation may compel women to adapt, forgive or reconcile, even in these situations.

The case of Afcons Infrastructure v. Supreme Court. Cherian Varkey (2010) opened up referral mechanisms, yet a new problem has ensued due to high-volume referral of matrimonial cases and this is whether cases are pushed to be settled to lower pendency as opposed to providing justice. Even a more serious danger arises when mediation is a side-track of criminal responsibility. However, despite the fact that the Mediation Act, 2023 does not allow mediation in some criminal offences, there is still ambiguity over the cases of domestic violence and settlement of Section 498A IPC cases.

India is not the only country that is concerned. The UK Ministry of Justice and Australian Mediation Standards Board have acknowledged the risk of mandatory mediation in cases with intimate partner abuse and introduced screening measures of safety risks. India is yet to have one of these.

INDIA’S LEGAL AND INSTITUTIONAL GAPS

The Mediation Act, 2023 is one of the significant moves towards institutionalized mediation in India, but the law lacks any gender-sensitivity and enforceable safety measures. Key weaknesses include:

●      No required gender justice or trauma training on gender justice or trauma among those involved in mediating.

●      No legal process of background screening of domestic abuse.

●      No binding code of ethics of conduct of mediators.

●      No legal entity of the right to support persons or caucus upon request.

In addition, pendency is actively discouraged through settlement encouraged routinely in matrimonial matters by the courts. The stress to settle, whether by the judges or family members or even the mediators, undermines voluntariness. The institutional data collection in mediation is also determined by the level of settlements, but not the quality of consent and this presents an incentive to the system actors to focus on the rate of settlements as opposed to safety.

These tendencies indicate the danger of a settlement-based approach dominating the justice-based mediation. When the power imbalance comes to play in settlement bargaining, the cornerstone of mediation value, autonomy, is essentially compromised.

POLICY RECOMMENDATIONS

India should consider: To bring the mediation practice in line with the constitutional values and gender justice, India should contemplate:

●      Compulsory mediator gender-sensitivity and trauma training.

●      Pre-referral statutory screening mechanism of intimate partner abuse.

●      Right of the parties to demand support persons and separate rooms.

●      Informed consent by use of a checklist during settlement signing.

●      Prohibition of mediation in relation to cases of coercive control or danger.

●      Not only settlement figures, but an institutional checking of the quality of consent.

Such steps do not undermine the process of mediation, rather, they enhance its credibility through assertion of independence and dignity.

CONCLUSION

Mediation has a long history of being hailed as a consensual, participatory and interest based approach of dispute resolution. Nevertheless, the supposition of the equal strength of all disputants as they appear in the mediation negotiation is not always accurate in social reality. The voluntary settlement ideal is prone to compromise when structural hierarchies, i.e., gender, class, caste, economic dependence, unequal access to legal knowledge, and other factors, come into the bargaining space. The fact that a mediated outcome may be influenced more by power than fairness is not just theoretical: the experience of numerous cases in domestic violence, workplace discrimination, matrimonial negotiation, land rights, and many other settings is clear: the weaker party is likely to capitulate in order to avoid the process, not because justice has been done.

The Mediation Act, 2023 is the hope of a new policy emphasis on party autonomy, confidentiality, enforceability, and institutionalisation. But the autonomy of parties entails more than a mere safeguard of the procedures, it entails the establishment of an egalitarian bargaining floor. Feminist jurisprudence has continually put into the limelight neutrality as a form of lack of concern with structural subordination, which unwittingly supports domination. By being neutral to unequal power, a mediator may in effect replicate such an imbalance. Likewise, time constraints to settle down, absence of legal advice, and excessive dependence on compromise over accountability can masochistically shut down credible claims. The effectiveness of mediation, however, cannot be measured by the amount of settlements that will occur, but by the fact that the settlements will occur in such an environment that is not coerced, or is not under fear or socio-emotionally dependent.

After all, mediation will be true to its word by not encouraging the weaker party to adjust to the process but instead saving the weaker party by adjusting the process. Consensual dispute resolution is legitimate based on whether it balances party autonomy and substantive equality. When mediation has become a secure zone where informed choice and not forced compromise are made, it can be not just a dispute avoidance tool, but as an instrument of justice, a transformative, not a transactional, instrument, empowering, not muzzling.

References -

●      The Mediation Act, 2023 (Act 13 of 2023).

●      The Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005).

●      The Indian Penal Code, 1860 (Act 45 of 1860), s. 498A.

●      Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.

●      Salem Advocate Bar Association (II) v. Union of India, (2005) 6 SCC 344.

●      K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

●      Sriram Panchu, Mediation Practice & Law: The Path to Successful Dispute Resolution (LexisNexis, New Delhi, 2nd edn., 2015).

●      Martha Fineman, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform (University of Chicago Press, Chicago, 1991).

●      Upendra Baxi, The Future of Human Rights (Oxford University Press, New Delhi, 3rd edn., 2008).

●      Owen M. Fiss, “Against Settlement”, 93(6) The Yale Law Journal 1073-1090 (1984).

●      Trina Grillo, “The Mediation Alternative: Process Dangers for Women”, 100(6) The Yale Law Journal 1545-1610 (1991).

●      Law Commission of India, 222nd Report on Need for Justice-dispensation through ADR etc. (April, 2009).

●      UN Women, Progress of the World’s Women 2019-2020: Families in a Changing World (2019).

●      Ministry of Justice (UK), Assessing Risk of Harm to Children and Parents in Private Law Children Cases (Final Report, 2020).

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