Editor’s note: Parties described in mediation cases are not fully named because of the confidential nature of material disclosed in the closed-door proceedings. They are referred to by last name only because in their communities, first names are more uniquely identifiable.
SRINAGAR, INDIAN-ADMINISTERED KASHMIR – Sitting under the shadow of a gigantic chinar tree in the court complex in Lal Chowk, a downtown city square, a woman in her mid-30s anxiously awaits her turn at one of Kashmir’s new mediation centers.
The woman, whose last name is Begum, is accompanied by her stepfather, who is also her paternal uncle. says She they are waiting for their village head, who has volunteered to speak at the mediation on her behalf.
In the meantime, Begum’s husband, the other party in the dispute, enters the mediation center to give his side of the story. As he discusses their marital issues with the mediator, his wife barges into the room and interrupts him. Sofiya Muzamil, the mediator, asks her to stop.
“This is a routine affair here,” says Muzamil, who is also an attorney. “Often parties [in] dispute engage in verbal brawl. Sometimes they turn violent, and same leads to a scuffle between them. In latter case, police is to be called in.”
Muzamil says that after both parties meet with the mediator, there are joint and individual follow-ups.
“Various sessions – joint and individual – are held to resolve matter amicably,” she says. “Feasible options are explored.”
The Begums are at the mediation center to discuss their marriage. They were married 12 years ago, and the husband is angry that they still don’t have any children, Muzamil says.
“Her husband pleads it as one of the grounds for divorce, whereas Begum says her mother-in-law ill-treats and harasses her,” Muzamil says.
Rebutting these allegations, the husband retorts that his wife is short-tempered, which leads to frequent disputes.
Abdul Rehman, the village head here to speak on behalf of the wife, tells the mediator that the case came before a local village committee a few years ago. The committee asked the husband to pay her five lakh rupees ($9,100) as compensation because he wanted to divorce her.
“But he didn’t agree,” Rehman says. “He said that he can pay one and half lakh rupees only, but that wasn’t acceptable to us. I wanted the same to be a deterrent for others. Then a case was filed in court, where it lingered for years.”
He says that they eventually opted for mediation to hasten the resolution process.
“During this time around, we came across mediation center, which is believed to lead towards speedy justice,” he says. “We expect early disposal of [our] case.”
The mediator says that she has explored various aspects of the dispute and listened to both sides.
“The matter isn’t finally resolved, but all factors are heading towards their divorce,” Muzamil says.
Citizens with more education and awareness of their rights are turning to the state’s newly operational mediation centers to hasten the judicial process. Because of a backlog of cases, courts send those concerning issues such as property and divorce to the rising number of centers. Mediators say the overall response of citizens has been favorable, though some lawyers call the process fruitless.
Although conception of the mediation centers in the state began in 2007, the first ones became operational last year. There are now 14 district mediation centers in the state, according to the annual report of the Mediation Monitoring Committee, which is responsible for their functioning.
Court cases have been mounting across India, with 40 million cases currently pending, Narinder Nath Vohra, the governor of Jammu and Kashmir, said earlier this year. Vohra attributed the rise mainly to an increase in population, education and awareness of rights.
“Mediation centers have been established by state legal services authority in all districts of state since last year,” says Ufaira Rasheed, a senior attorney. “It is a sort of family counseling wherein parties negotiate.”
Mediator Ghousia-ul-Nisa Jeelani, a retired judge, says it’s a growing phenomenon here.
“These centers are functioning across India and started in Jammu and Kashmir last year,” she says.
She recently mediated the case of another couple who, like the Begums, are also considering divorce.
Sitting across a table with their respective attorneys by their sides and the mediator occupying the chair between them, the couple hurls allegations and rebuttals at each other. Jeelani keeps interrupting, aiming to guide them toward a resolution.
As the closed-door proceedings start, the wife says that her husband has been torturing her – physically and mentally – since they got married 30 years ago.
“He made me to quit my school, job and often asks me to leave his house,” she says. “Where shall I go?”
She says that he also doesn’t support her.
“My parents support me financially,” she says.
She says she lives in a room separate from her husband in his house, and she isn’t allowed to enter the kitchen, which his sister manages.
“My privacy is intruded, and my food is kept in a plate outside my room,” she adds, bursting into tears. “I am given insufficient food to eat.”
In his argument, her husband pleads for the dissolution of their marriage on the grounds that his wife uses offensive language, harasses him and his sisters and assassinates his character.
As the arguments sour, Jeelani intervenes and fixes the next hearing date for the following week. She adds that a wife has the right to live in her husband’s house, even if it is shared until the matter gets resolved, according to the Jammu and Kashmir Protection of Women from Domestic Violence Act 2010.
Apart from the matrimonial disputes of the day, a permanent injunction case also arises. A widow, also by the last name of Begum, had filed a harrassment suit against a man in the community after a rent dispute.
Muzamil’s sister, Sofiya Mudasir, is also a mediator. Mudasir says that mediation centers are a recent concept in Jammu and Kashmir. They take on both pre-litigation disputes and cases pending in courts in order to hasten the resolution process.
The courts refer petty and compoundable cases to the centers that they deem fit for mediation, Mudasir says. Common disputes relate to marriage and property.
“Cases that aren’t compoundable, that is, cases related to murder, rape, heinous crimes and anti-corruption cases, aren’t taken up for mediation,” she says.
Jeelani says that the centers emerged as one solution for the backlog of cases in the court system.
“Increase in court cases led to establishment of mediation centers,” Jeelani says.
She attributes the increase to the population’s growing awareness of their rights, which have overwhelmed the courts.
“Court cases took more than 20 years, and [the] judicial system got expensive,” she says. “To overcome this, some other procedure was thought to be adopted so that cases are settled at earliest.”
Jeelani says that a mediator guides parties to settle disputes on their own terms and conditions.
“A mediator is [a] third, independent person,” she says, “who takes two parties in cordial manner away from judicial atmosphere; conducts individual sittings and joint sessions with parties; listen[s] to them; and make[s] them understand advantages and disadvantages of settling their disputes amicably.”
She views mediation as a “win-win position for both parties.”
“After settlement of terms and conditions, an agreement is drafted, which is then referred to concerned court where from a case was referred for mediation,” she says. “Then concerned court decides the case as per agreement reached by parties.”
Decisions made at the mediation centers aren’t challengeable. She says tempers can run high, but police intervention is unnecessary.
“Congenial atmosphere is vital component of mediation,” she says. “Sometimes parties get emotionally charged, but to overcome that is art of mediation. We give a pause and fix next date of hearing so that parties get time to decide.”
Although some people still prefer to take their cases to court, Jeelani says that overall, the citizens’ response of masses toward these centers is encouraging, as they want to settle their cases as soon as possible.
“More and more cases are being referred to mediation centers,” she says.
Shaheen Khan, an attorney, says the centers strengthen the justice process by speeding it up.
“Sometimes clients drop out as cases linger on for years together,” Khan says. “So it is better if they get speedy justice.”
Raouf Ahmad, another attorney, says that mediation centers work particularly well in disputes that arise from communication gaps or misunderstandings.
But others caution that the mediation centers are not a panacea.
“Mediation is not always a right option, as people approach courts for justice and not for compromise,” says Huneef Mohammad, a technocrat.
He stresses quality of compromise rather than speed.
“Mediation is welcome as long as verdict isn’t twisted for sake of reaching to compromise,” Mohammad says.
Psychological counseling should also complement this process, he says.
“Mediation must be seen as a process of reconciliation within framework of justice, and there must be subprocess like psychological counseling embedded within mediation framework so that convergence or compromise is sustainable,” he says. “Then, psychological counseling will act as a catalyst for durable and sustainable resolution.”
Mohammad also insists that cases shouldn’t be closed abruptly following the compromise.
“Let there be a test period of at least three months during which parties to compromise should be asked to live contours of compromise in their daily life,” he says. “If they succeed, only then case should be closed down. Otherwise, it should be referred back to further mediation or counseling or court.”
But others have little faith in the mediation centers.
“It is a futile exercise and wastage of time,” says Aijaz Ahmad, an attorney. “It works only where parties are honest towards each other and where they want to resolve the matter.”
Ahmad says that the mediator should have a stronger say in the court to make the process more meaningful if a conclusion can’t be reached.
“If bench feels that due to conduct of one party to conflict, it couldn’t arrive at any conclusion, it should give some findings that could have evidential value in court. If bench fails to arrive at any conclusion and case is referred back to court, then it serves no purpose.”
