EFFECTIVENESS OF MEDIATION IN CRIMINALPROCEEDINGS: A Potential Method, Yet Unexplored

Abstract

Penal matters presently fall outside the purview of mediation. An effective alternative dispute resolution mechanism has emerged, and its significance can be seen in Romanian legal jurisprudence, which is one of the first legal systems to incorporate mandatory attendance at mediation information sessions, allowing greater participation by the parties involved. With approaches to punishment and responses to criminal acts evolving, one such common concept stands out: “Restorative Justice,” which aims to restore the victim and encourage their active participation in the process, alongside the importance of the offender making amends by accepting their responsibilities, rather than through purely punitive measures.[1] There is a need to duly offer support and respect to the victim or their family members. In the traditional setup, there are no emotions of empathy, healing, or cordiality; at the same time, a sense of accountability is required on the part of the offender at the pre-litigation stage, including repaying or at least expressing genuine remorse. This can also act as a mitigating factor towards any future offending, whereas in the traditional process, the aspect of remorse and acceptance remains largely unexplored.

This will provide the victim with a safe and controlled environment to discuss with the offender matters of admission of guilt, compensation, and due accountability. This would also provide due confidentiality to the victim, offering a less threatening environment, conducive to both financial and dialogue-driven resolution, which would be beneficial to both parties. The paper delves into studying mediation from a new dimension within the criminal system of India, which remains applicable in cases committed by minors or offences of a minor, compoundable nature. This is not a new impetus; it was also recommended in the Malimath Committee Report, which reiterated the need for duly addressing the rights of victims and their active participation in the criminal justice system, leaving it upon the court’s discretion on a case-by-case basis to initiate and refer cases to mediation proceedings.

I. Mediating Restorative Justice: A Prelude

Restorative justice can be considered an approach that surfaced in protest against the shortfalls and setbacks of the conventional criminal justice system, wherein “justice is considered to be a contest between the offender and the state which is directed by several systematic rules”[2] — an ineffective framework that believes in inducing pain and misery on the offender as a statement of expression against the deviant and penal act they indulged in against the state. Mediation is not a new concept; it has been applied internationally, including in instances of both hot and cold war situations. The ideal condition of victims in the criminal justice system is that they have no active role to play in the modern criminal justice system; the rights of victims in the traditional setup are neglected, as they do not have any direct voice in the decision-making processes, and their rights depend upon the relief that they claim. The rights of the victims are amalgamated with the rights of society against the deviation and act of the offender, thus keeping the former on a subordinate pedestal to the latter.

In such a case, mediation can be seen as an effective alternative and a recourse within the criminal justice system, which prevents any kind of criminalisation of disputes and neglect of the rights of the victim, bringing restitution for the damage caused to the victim. The restorative theory of justice primarily focuses upon victims, offenders, and community members, considering crime to be a deviation and activity directed against individuals rather than society as a whole.[3] Restorative justice envisages the direct participation of both the victim and the offender, facilitated through a trained mediator, which promotes a sense of security, empathy, and remorse, and most importantly provides an opportunity to the offender to express himself or herself before the victim or their family. The significant outcome of such mediation would be a concluded mediation agreement supported by acceptance and compliance, as opposed to the probability of secondary deviance by the offender, which is often a result of conventional proceedings.

In Indian jurisprudence, the confusion persists because there is a clear distinction between compoundable and non-compoundable offences, where the former refers to those categories of cases under which the victim may drop the criminal proceedings if there is damage caused to them by the offender, based on a settlement. A crime can be considered essentially a wrong against society and the state; thus, any compromise between the accused person and the individual victim would not necessarily, in every case, absolve the accused of guilt. The general scheme for the compounding of offences has been provided under Section 359 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, dealing with “compounding of offences.”

The law enumerated under the same consists of various offences, including enticing or taking away or detaining a married woman,[4] voluntarily causing hurt,[5] wrongfully restraining or confining any person,[6] assault or use of criminal force,[7] theft,[8] criminal trespass,[9] and insulting the modesty of a woman,[10] among others. For over a century, bringing a compromise between the victim and the offender has been a proactive thought in the delivery of judgment by several High Courts, as rightly stated in Saraswati Sutradhar v. State of Tripura (1999),[11] wherein the Andhra Pradesh High Court observed:

“The anxiety to help accused avoid trial has made some High Courts alter the conviction on appeal, under a compoundable offence or to suspend for 2 years, and then to compromise.”

The legal framework of India currently possesses a specific act dedicated to the mediation of disputes (the Mediation Act, 2023), yet it also contains restrictions for mediating disputes involving prosecution for criminal offences. Thus, there is a need to develop and produce a framework or model that incorporates possibilities for mediation in the criminal justice system, running in corollary to the conventional system of criminal justice.

It has at multiple times been acknowledged that victims of crime have suffered at the hands of the criminal justice system, as practiced in many parts of the world including India, as rightly stated and acknowledged by the Justice V.S. Malimath Committee on how the carriage of justice is often misconceived to lie at the signature of a judgment, whereas in true reality it lies in the lap of the victim.[12] Justice must be reformative for the offender and, at the same time, restorative and rehabilitative for the victim; unless these elements are present, justice cannot be said to be truly served.

In this context of restorative justice, the wrongdoer is required to engage in explicit acknowledgement and acceptance of their wrongdoings, facilitating the process of acceptance and healing, especially for the victim, who is often overlooked in the conventional criminal justice system.

II. Dialogue between Victims and Offenders

Victim-offender mediation is a process in which a meeting is conducted between the offender and victim, guided by a trained mediator, to provide an opportunity to both parties to express their feelings and perceptions, representing feelings of remorse, guilt, and regret, while duly providing the victim with an active role in the pathway of justice. This is one of the key instruments to promote the principle of restorative justice in criminal jurisprudence, the goal of which is to present a forum or platform to the offender to repair and restore the harms suffered by the victim.[13] It is unfortunate that the ideal victim in the conventional justice system is considered to be vulnerable and has no role to play, other than being represented by the state for the wrong done to them; they are treated as agents that set in motion the criminal justice machinery. Mediation between the victim and the offender stands as a bulwark in relation to the active participation of victims, as compared to the priority given to litigation and punishment by the state, and it avoids publicising the matter or compromising the integrity of the parties through media exposure.

Mediation has seen a sharp increase in resolving disputes and has great potential to disrupt the established attitude towards criminal behaviour and delivery mechanisms.[14] Victim-offender mediation can be defined as a process that provides a forum to the victim and the offender, primarily in cases of minor offences, property offences, or minor assaults, for morally holding offenders accountable and providing due compensation to victims. A key issue in bringing a victim under the mediation process, however, is actually determining whether the parties to the dispute have the right or power to make settlements.

The focus in such cases lies upon overcoming victimisation, especially in the context of publicity and media trials which always run in parallel with every criminal proceeding in our nation. The controlled setting and the mindset of both parties, the victim and the offender, would be different from the state of mind when the offence was committed, alongside ensuring confidentiality and privacy of both parties. Importantly, bringing up a framework of mediation in criminal proceedings does not amount to scraping away the right of the victim to be represented by the state and to have their rights enforced accordingly.

“Conflict is inevitable, but combat is optional.” The incorporation of mediation in compoundable offences, which have the correct nature and capacities of the parties, can definitely reduce the expenses of litigation, the efforts involved, and most importantly, the mental exhaustion surrounding it. The idea of incorporating mediation in criminal proceedings arises from the tendency of parties to convert civil disputes into criminal disputes to misuse criminal proceedings to persecute their opponent, leading to an unnecessary overflow of dockets. A perfect example is the factual matrix of K. Srinivas Rao v. D.A. Deepa (2013),[15] in which a civil family dispute of divorce and matrimonial quarrels escalated into a criminal complaint for dowry, and the court took into account several precedents including Naveen Kohli v. Neelu Kohli[16] and Samar Ghosh v. Jaya Ghosh,[17] in paragraph 31, as follows:

“If at the earliest stage, before the respondent-wife made indecent allegations against her mother-in-law, an independent and sensitive elder had intervened, or if the parties were sent to a mediation centre or if they had access to pre-litigation counselling, perhaps the bitterness would not have escalated. Things would not have come to such a pass if, at the earliest stage, somebody had mediated between the two.”

The point behind victim-offender mediation is not merely related to the guilt or innocence of the offender or negotiating what compensation is to be paid, but also encompasses the broader perspective of ensuring that the offender stands accountable for the damage caused to the victim, being dialogue-driven and emphasising accountability. The first victim-offender mediation programme was initiated in Kitchener, Ontario, in which two boys destroyed property as a result of their intoxicated behaviour. The juveniles were required to confess and visit all the homes that were harmed in their act, alongside reaching an agreement with them. This approach proved to be not only successful for the victims but also for the offenders, providing rehabilitation that could never be achieved through state-imposed punishment alone.[18]

This provides an opportunity to the victim to engage in a proper dialogue and devise a rehabilitative plan for themselves, something truly valuable and rehabilitative to them, rather than relying solely on court-awarded compensation. This principle has been recognised in R. v. Gladue (1999),[19] a decision of the Canadian Supreme Court, wherein the court remarked that the concept of restorative justice reflects “rehabilitating offenders and providing reparations for harm done to victims or the community,” which does not always correlate with the use of imprisonment as a sanction, and may include the option of alternative dispute resolution based on the background and lifestyle of the offenders and victims. [Note: A portion of the quoted text in the original manuscript appears to be corrupted; the author should verify the full quote against the original judgment at [1999] 1 SCR 688.]

Romanian legal jurisprudence has also adopted mediation in criminal matters. The Romanian Mediation Act, 2006 (Law No. 192 of 16 May 2006),[20] Article 2 of the statutory provision clearly states:

“Unless the law provides otherwise, parties, whether persons or legal persons, shall be bound by the obligation to attend the session on the advantages of mediation, including, if necessary, after the onset of a trial before the competent court, over conflicts on civil, family, criminal matters, as well as other matters under the terms provided by law.”

The main aim of the introduction of these provisions is the elimination of criminal behaviour and the recurrence of such offences, to provide a forum to the victim and offender, but most importantly, to bring a sense of awareness of the offence, and initially to provide the parties with the chance to address it.

III. Applicability in Indian Legal Arrangements

The First Schedule of the Mediation Act, 2023[21] clearly lays down a complete restriction upon the use of mediation in disputes relating to prosecution for criminal cases, thus severely restricting the scope of mediation and victim-offender driven justice to society and the individuals affected.

“3. Disputes involving prosecution for criminal cases.”

A hint of this ideology can be seen explicitly in the recommendations of the 41st Law Commission[22] of 1969, dealing with recovery of compensation of a substantial nature by the victim from the offender after the latter is convicted. The recommendations were incorporated by the Government of India in the Code of Criminal Procedure Bill, 1970, which involved payment of compensation to the victims of crime, expanding the narrow bounds of such compensation beyond the condition of “whether fine was imposed or not.” The statement of objects and reasons in the Bill stated:

“Clause 365 (now Section 357), which corresponds to Section 545, makes provision for payment of compensation to victims of crimes. At present, such compensation can be ordered only when the court imposes a fine; the amount is limited to the amount of the fine. Under the new provision, compensation can be awarded irrespective of whether the offence is punishable with a fine or a fine is actually imposed, but such compensation can be ordered only if the accused is convicted. The compensation should be payable for any loss or injury, whether physical or pecuniary, and the court shall have due regard to the nature of injury, the manner of inflicting the same, the capacity of the accused to pay, and other relevant factors.”[23]

Application of mediation, or its recommendation by courts in certain classes of criminal offences, is not something novel; rather, this has been ongoing for decades. In K. Srinivas Rao v. D.A. Deepa, a matrimonial quarrel escalated into a complaint lodged against each other by both parties, seeking to defame and subject the other to mental cruelty. While expressing distress over such an unfortunate event, the Apex Court rightly observed in paragraph 36:

“While purely a civil matrimonial dispute can be amicably settled by a Family Court either by itself or by directing the parties to explore the possibility of settlement through mediation, a complaint under Section 498-A of the IPC presents difficulty because the said offence is not compoundable except in the State of Andhra Pradesh where by a State amendment, it has been made compoundable.”

Another instance to be kept in mind is the case of Sathyavani Ponrani v. Samuel Raj,[24] wherein the Madurai Bench of the Madras High Court ensured that the survivors or victims of rape also had an opportunity to be heard and to participate more actively in the process, moving above the narrow shackles of the conventional system of justice, wherein the victim had previously remained silent.

The Supreme Court rightly remarked in Moti Ram (D) Tr. LRs v. Ashok Kumar,[25] while referring to mediation and the importance of avoiding unnecessary publicity:

“This is unlike proceedings in Court which are conducted openly in the public gaze. If the mediation succeeds, then the mediator should send the agreement to both courts and tribunals, without mentioning what transpired during the mediation proceedings. If the mediation is unsuccessful, then the mediator should only write one sentence in his report and send it to the Court stating that the ‘Mediation has been unsuccessful.'”

At another instance, in Ramgopal v. State of Madhya Pradesh,[26] the Court requested the Law Commission and the Government of India to examine whether Section 498-A of IPC, 1860 (or its successor, Section 85 of BNS, 2023) could be made a compoundable offence, given the nature of escalation in frivolous and vindictive cases filed frequently. The Court further stated in paragraph 34 that the High Court may quash such criminal proceedings if it appears that by not quashing them, the ends of justice would be defeated.

IV. Moralistic Yet Unthinkable?

It has further been held, in Sreelal v. Murali Menon,[27] that a criminal court cannot pass any civil decree to effectuate a settlement; it can only record that the offence has been compounded, and that such compounding is equivalent to an acquittal. This further minimises the scope of referring such cases to mediation.

In Afcons Infrastructure Limited v. Cherian Varkey Constructions Company Private Limited,[28] the court clearly laid down those categories of cases which would fall within the ambit of and potential for referral by the court to ADR mechanisms, with mediation being the most prominent, in paragraph 10, including:

“(vi) Cases involving prosecution for criminal offences.”

At the same time, as held by the Supreme Court in Naushey Ali v. State of UP,[29] the compounding of an offence and its quashing by settlement of parties are inherently very different in nature. The court also emphasised that such matters are not private in nature, having a grave impact on society, especially those involving serious and heinous offences of mental depravity or offences such as murder, rape, or dacoity. Thus, the scope for utilisation of mediation, though limited, cannot be superimposed arbitrarily in cases involving heinous crime where no scope for rehabilitation or restoration of the offender or victim persists. Yet, it can be invoked in cases with a civil flavour, family disputes, or petty disputes that, though criminal in nature and non-compoundable, are such that subjugation of those offences to mediation would definitely contribute to reducing unnecessarily prolonged litigation.

References

[1] Jennifer Gerarda Brown, “The Use of Mediation to Resolve Criminal Cases: A Procedural Critique,” 43 Emory L.J. 1247 (1994), available at https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/emlj43§ion=45.
[2] Marty Price, “Punishment — What’s in it for the Victim? A Restorative Justice Discussion for Crime Victims and Their Advocates,” Center 5 Kaleidoscope of Justice, March 4, 1997.
[3] Juan Carlos, “The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations,” Martinus Nijhoff Publishers, September 2013.
[4] Compounding of Offences, Section 84, Bharatiya Nyaya Sanhita, 2023 (compounded by husband of the woman or the woman herself).
[5] Ibid., Section 115 (compounded by the person to whom hurt is caused).
[6] Ibid., Section 126 (compounded by the person restrained or confined).
[7] Ibid., Section 131 (compounded by the person assaulted or to whom criminal force was used).
[8] Ibid., Section 303 (compounded by the owner of property stolen).
[9] Ibid., Section 329 (compounded by the person in whose possession the property belongs).
[10] Ibid., Section 79 (compounded by the woman who was the victim of it).
[11] Saraswati Sutradhar v. State of Tripura, 1999 SCC (Cri) AP 316.
[12] Justice V.S. Malimath Committee, “Reforms of Criminal Justice System,” Government of India (2003).
[13] Aishani Narain, “Integration of Mediation in Cases Involving Young Offenders,” LiveLaw Blog, September 14, 2017, https://www.livelaw.in/integration-mediation-cases-involving-young-offenders.
[14] Heinz Messmer and Hans Uwe Otto, Restorative Justice on Trial: Pitfalls and Potential of Victim-Offender Mediation, Springer (2010).
[15] K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
[16] Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558.
[17] Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.
[18] Jeff Latimer and Steven Kleinknecht, “The Effects of Restorative Justice Programming: A Review of the Empirical Research” (2005).
[19] R. v. Gladue, [1999] 1 SCR 688 (Can.).
[20] Petronela Stogrin, “Mediation in Criminal Matters,” University of George Bacovia, Vol. 3 (2014). [Note: The Romanian Mediation Act is Law No. 192 of 2006; the year “2016” in the original manuscript appears to be a typographical error — author to verify.]
[21] First Schedule, “Disputes or Matters Not Fit for Mediation,” The Mediation Act, 2023 (October 13, 2023).
[22] Law Commission of India, “Forty-First Report: The Code of Criminal Procedure, 1898,” (September 1969).
[23] Statement of Objects and Reasons, Code of Criminal Procedure Bill, 1970, p. ix.
[24] Sathyavani Ponrani v. Samuel Raj, 2010 (4) CTC 833.
[25] Moti Ram (D) Tr. LRs v. Ashok Kumar, 2010 INSC 859.
[26] Ramgopal v. State of Madhya Pradesh, 2011 (2) SCC (Cri) 145.
[27] Sreelal v. Murali Menon, 2014 SCC OnLine Ker 28501; (2014) 3 KLT 536.
[28] Afcons Infrastructure Limited v. Cherian Varkey Constructions Company Private Limited, (2010) 8 SCC 24.
[29] Naushey Ali v. State of UP, 2025 LiveLaw (SC) 190.