“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” ^[1]

Joseph Grynbaum

Introduction

As of 2024, the Indian Judiciary bleeds with over 51 million pending cases, with roughly a fraction of the same, 0.16 million pending for a long-drawn-out 30 years or more in the district and high courts of the country^[2]. Having established the noted deplorable state of the Indian Judiciary in terms of the pendency of matters, the Legislation placed its reliance and faith onto the models of extra-judicial resolution mechanisms, not to be highlighted many a time and oft, the desire and need for quick and affordable justice dispensation.

In acknowledgement of widespread knowledge, the traditional mode of redressal, i.e., litigation, is a much more strenuous and lengthy process, giving inadvertent rise to delays and adjournments. At such a legal phenomenon, Alternative Dispute Resolution mechanisms are better off shortcuts to stride upon the legal trajectory of seeking justice, thereby popularised for their less adversarial and more amicable outcomes, in comparison.^[3]

The adopted etymological term juvenile delinquency is the effecting of an act that may conflict with established law by a person so young, who retains the nature and characteristics of a child, not old enough to be tried as an adult responsible for criminal acts. That being said, since the enactment of the newly replaced Juvenile Justice Amendment Act 2015 (Replaced the JJ Act, 2000), adopting mediation as an Alternate Dispute Resolution mechanism has witnessed widespread prominence at the onset of such legal disputes.

Mediation as an ADR Mechanism vis-à-vis Juvenile Justice

Out of the available recourses that can be taken into accord concerning the prosecution of Juvenile Offenders, mediation has witnessed an upward trend among such justice-seekers while not overlooking the limitations. The Judiciary, in its most vigorous attempt to impart justice in a manner that brings about a positive reinforcement in the body of the child offender, in the hope that the rehabilitation is such that the same behaviour is not projected into his adulthood. With the recognition of persons under 18 being guilty of grievous crimes, every nation has implemented the development of a separate juvenile and criminal justice system.

Juveniles in India, thereby, are categorised into either:

• Children in Conflict with Law (Criminal offenders)
• Children in Need of Care and Protection

In the occurrence of any criminal activity, the state has the offence committed against them, and thereby, the state must try the accused and prove guilty by the law of the land to bring about a sense of justice and equity to victims of the crime. It is not novel that most such criminal cases have the state as parties and, therefore, pile up before the Indian Courts. Herein, the effectiveness of mediation as a dispute resolution has played an impressive role in justice adjudication.

Mediation uses a neutral person (third party) appointed to aid the parties in reaching a voluntary and mutually agreeable conclusion to the conflict. The optimum state of benefit for both parties strives to be achieved, making mediation the most popular and sought-after dispute redressal mechanism. In the case of Juvenile Delinquency, one of the most commonly applied mediation programs is the Victim-Offender Mediation (VOM).

Reference to Criminal Legislation to Mediation in India

Section 265A of the Criminal Procedure Code (CrPC) is the channel through which certain offences are compounded. Compounding is when the victim and the offender settle on a mutual deal. In return, the victim decides not to press charges, usually for restitution or compensation from the offender. Although this section is mostly about offences that are not forbidden to be a cause of a conflict, it sometimes coincides with the principles of restorative justice and victim-offender mediation.

In the judgment of Afcons Infrastructure v. Cherian Varkey Construction, the Supreme Court held that criminal cases are unsuitable for mediation. However, cases such as those of family disputes may have criminal elements, which can be referred to as mediation. It is, therefore, essential to record the nature of the aspects of the so-captured crime in question to determine its validity in entering mediation procedures.

With a similar view in mind, in the case of Ashok Sadarangani v. Union Of India, The court opined that in continuation of a criminal proceeding, when a compromise has been effected between the parties, then such continuation of proceedings is “an exercise in futility”. The subsequent quashing of FIR is allowed on mutual agreement and is a significant step in the evolutionary trajectory of India’s Criminal Jurisprudence.

The primary question posed in criminal jurisprudence is the rationale behind the imposition of criminal punishment on individuals. The justification lies in the restorative justice theory in the legal system wherein the harm caused by the individual is “balanced by offering support to the victim and requiring the offender to make amends, with the support of the community if necessary.”^[4]

Restorative Justice Measures Regarding Juvenile Justice in India

The growing popularity of restorative justice systems in India has been due to the fact that the traditional adversarial conflict resolution system is often inadequate. These methods, deeply ingrained in India’s cultural heritage and history, thus allow the formal legal system to be improved. They support a legal system that is more victim-centred and involves the community.

Juvenile Justice (Care and Protection) Act, 2015

This Act provides the officials with alternative sanctions like counselling, community service, and fines. Besides, it can also release people on probation if they have been good in the facilities or extraordinary homes that deal with making them reformed. Besides, the Board created by the Act can make further mandates for the juvenile to attend school, vocational training, or therapeutic sessions and restrict access to specific locations. The main goal of these measures is the societal integration of juvenile offenders.

Plea- bargaining Law in India

Based on the 142nd and 154th Law Commission reports and the Malimath Committee’s recommendations, plea bargaining was introduced into the Indian Penal Code, 1973 to streamline court processes and reduce judicial backlogs. In plea bargaining, the accused pleads guilty for a lighter sentence, either suggested by the prosecution or the judge, thus saving enforcement costs and allowing prosecutors to focus on more severe cases. This mechanism is limited to certain minor offences and is commonly used in Western countries, as affirmed in the U.S. case Brady v. United States. Unlike victim-offender mediation, plea bargaining involves minimal interaction between the parties.

The Victim-Offender Mediation Program

India does not have a specific legislative provision for victim-offender mediation; however, recognised as one of the most effective dispute resolution methods, VOM programs are the alternative to the regular nondescript legal system, where both the victims and the offenders participate in the justice process. In contrast to the regular, person and punitive system, these programs are more humane and care-oriented. A mediator supports the process, and thus, in one go, the informational and emotional needs of the parties are met. The point is to talk about the victim’s losses, and at the same time, a restitution plan is being made, which both parties will consent to.

This mediation is different from civil mediation in that it has an apparent victim and a perpetrator who has committed a crime; thus, there is no need to debate the perpetrator’s innocence. The process is not about the compromise or the settlement but the dialogue focused on empowering the victim, holding the offender accountable, and restoring the victim’s losses. This is done by these dialogues, which also help develop empathy in the offender; therefore, the program concentrates on reducing the scope of recurrent criminal activity.

Scope of Recidivism in furtherance of VOM

The effect on recidivism rates among Juvenile Victim Offender Mediation Programs are yet to be researched to their optimum in India; however, taking into consideration the global rates of the same, numerous studies evaluating restorative justice programs have reported promising results, as up to 80% to 90% participants, inclusive of victims and offenders expressing satisfaction with the methods above.^[5]

One research study concludes and draws consensus with the popular notion that participants in restorative justice programs were significantly less likely to recidivate than the other offenders.^[6] A study from data collected at Resolutions Northwest in Portland, Oregon, has been analysed to substantiate further.^[7] The following table shows the rates of recidivism for the Resolutions Northwest VOM and the Juvenile Detention Alternative data in one succinct Table.^[8] Recidivism Rates for Resolutions Northwest (RNW)- VOM and Juvenile Detention Alternative Initiative (JDAI) Data:

Number and Percent Recidivating

RNW                                                                JDAI

Analysing the data, 1 out of every five offenders reoffended, i.e. 20.3% of those that went through Resolutions Northwest victim-offender Mediation, as compared to 41.6% of offenders of the Juvenile Detention Alternate Initiative group, i.e. 2/5 juveniles reoffended.

This rightly proves the hypothesis that a mediation, with its limitations, is that those directed to enter such mediation programmes are assumed to not re-offend in the first place, considering the very nature of the crime so committed. This occurrence may account for the lower recidivism rates, with VOM having no effect whatsoever. ^[9]

With such limitations aside, Victim-offender Mediation shows a significantly lower recidivism rate than the adjudicated offenders subject to conventional judicial trial. Therefore, conclusively, avoiding such a stern, punishable judicial procedure and resorting to mediation programmes shall have a positive bearing upon the impressionable minds of the young without distorting the chances of a fruitful future, considering the outcome of the limited scope of reoffending.

Conclusion

The separation of juvenile delinquency from the traditional criminal justice system primarily aims at rehabilitating young offenders to prevent future adult criminality. The process should adopt a human-centred approach that considers the experiences of both victims and perpetrators. Such interventions are practical and have shown significant success in juvenile justice. Integrating programs like the Victim Offender Mediation Program (VOMP) can further lower the likelihood of reoffending. This mediation method makes the offender accountable to the victim, thereby increasing participation from victims and the community in the judicial process, which can help reduce criminal behaviour. In the 1980s, there was doubt about the willingness of crime victims to meet their offenders face-to-face. Yet, in Western countries, it has been recognised that such meetings can yield positive outcomes under appropriate circumstances. Nonetheless, caution is advised in juvenile criminal mediation, recognising its limitations and treating it as a supportive tool rather than a complete alternative.

[1] Dispute Resolution Quotes – ADR toolbox (2010).http://www.adrtoolbox.com/library/adrquotes/.

[2] njdg.ecourts.gov.in. (n.d.). Welcome to NJDG – National Judicial Data Grid. [online] Available at: https://njdg.ecourts.gov.in/njdgnew/index.php.

[3] ALTERNATIVE DISPUTE RESOLUTION IN INDIA. (n.d.). Available at: https://legalaffairs.gov.in/sites/default/files/Arbitration_Mediation.pdf.

[4] Khan, S. (n.d.). IJFANS INTERNATIONAL JOURNAL OF FOOD AND NUTRITIONAL SCIENCES VICTIM-OFFENDER MEDIATION IN INDIA’S CRIMINAL ADMINISTRATION: AN ANALYSIS OF EMERGING PRACTICES THROUGH RESTORATIVE PRINCIPLES. 2022 -I) Journal, [online] 11, p.2022. Available at: https://www.ijfans.org/uploads/paper/88eb2ddd01637cec1facc2f4211f6de7.pdf [Accessed 20 May 2024].

[5] Umbreit, M. S., Coates, R. B., & Vos, B. (2001), Juvenile victim offender mediation in six Oregon counties. Oregon Dispute Resolution Commission. Salem, OR.

[6] Bradshaw, W., & Roseborough, D. (2005), Restorative justice dialogue: The impact of mediation and conferencing on juvenile recidivism. Federal Probation, 69(2), 15-21.

[7] Latimer, J., Dowden, C., & Muise, D., (2005), The effectiveness of restorative justice practices; A Metanalysis. The Prison Journal, 85(2) https://doi.org/10.1177/0032885505276969

[8] Stone, Karin Jewel, “An Evaluation of Recidivism Rates for Resolutions Northwest’s Victim-Offender Mediation Program” (2000), Dissertations and Theses Paper 2291.

[9] Stewart, L., Thompson, J., Beaudette, J. N., Buck, M., Laframboise, R., & Petrellis, T. (2018). The Impact of Participation in Victim-Offender Mediation Sessions on Recidivism of Serious Offenders. International Journal of Offender Therapy and Comparative Criminology, 62(12), 3910-3927. https://doi.org/10.1177/0306624X17752274