This article was authored by Bijaharini Gopalakrishnan and Indumugi. C from TNNLS, Trichi.

ABSTRACT

The feasibility of using mediation to resolve criminal disputes is creating a paradigm shift in many jurisdictions round the world, to decrease the backlog of cases that are criminal in nature. Mediation is very essential for the current scenario of the judiciary. Conversely, there seems to be no/lesser awareness of the convenience of using mediation among the general public. It seems more viable to first, introduce mediation as a common parallel in the civil Courts and then move to expanding it to the criminal Courts. Nevertheless, there needs to be a structured way of introducing mediation to criminal matters as they deal with sensitive and emotional issues. The objectives of this long-essay is as follows: first, to consider the structure of the existing criminal mediation system and test the applicability of mediation to criminal matters in India; Second, to explain the issue of voluntariness of the parties and a the confrontation of a choice-situation to select cases that can go through mediation; Third, it analyzes the increased role of the victims in the lights of the victims’ rights movement and finally explore the most challenging barriers and questions that the criminal mediation process will face, if implemented. In the light of the above questions answered, it also examines the usage of mediation in the process of rectifying the defects present in plea bargaining.

INTRODUCTION

India is one of those countries with enormous opportunities in mediation i.e., it can be a mediation friendly country. Mediation will help navigate the obstacles faced by the Indian Justice system with regard to the judicial backlogs of over 3 crore cases.[1] David & Brogan (2006) defines mediation as “a form of dispute resolution, found outside the adjudicative space of the Courtroom or tribunal, where parties in dispute or conflict, utilize the assistance of a third party neutral to attempt to resolve their dispute.”[2] Though, mediation has these demonstrable techniques of facilitating the judiciary in its tasks, the path to successfully establishing it is filled with large obstacles.

  1. The Issues

Mediation as a means to resolve civil conflicts has taken commendable efforts to reduce the judicial backlog and has proved to be a faster system of resolution for the general public around the world. The potential of mediation is being recognized in India on account of which the Indian Parliament has enacted the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018, which gives way for pre-institution mediation processes[3]. Section 12A of the Act stipulates mandatory pre-institution of a mediation session, or to exhaust the remedy of mediation before filing a suit in the Court of law unless the suit involves any urgent interim relief under the Commercial Courts Act, 2015. India is moving from a country with mediation being an alternative to one of a standard procedure in civil conflicts,[4] such as family and commercial disputes[5], and has a compelling need to be expanded further.

The acceptance of the necessity of an alternative dispute resolution like mediation has not been applied to its criminal counterpart. In fact, it would sound too ambitious to extend mediation programs to criminal disputes when, mediation is yet to reach a preferred form of resolving disputes in the dominion of civil law. However, there has been a consistent usage of mediation to resolve certain types of criminal disputes, particularly juvenile offences,[6] in countries like Romania, Canada, England, Finland and US.[7] Nevertheless, under the backdrop of the judicial backlog that India is experiencing, the legal fraternity’s interest in expanding mediation’s budding role in matters of criminal dispute undeniably exists.

Mediation has been in practice, even for criminal disputes in India for a long time through the traditional Panchayats, though they are not integrated into the formal litigation system.[8] Currently, mediation practices in India are not confined to one statutory enactment; it is recognized by a number of statutes,[9] as a mechanism that can help resolve disputes. Apart from legislative enactments, mediation or general ADR processes has been consistently supported by the Supreme Court.[10] Recognition and acceptance of mediation as an effective and viable practice in India is highly desirable at this moment. Mediation has the ability to play a constructive part in reducing the judicial backlog and can also find its way to expand to criminal disputes. However, mediation is not a flawless process. Considering the situation in India where there is less awareness and reliability about mediation practices among the general public, mechanisms to conduct mediation have to be a strong alternative to Court procedures and ensure that its practices are foolproof.

In an effort to address both levels of discussion, Section II of this paper will examine the efficacy and soundness of the application of mediation to criminal disputes in India, mechanisms to ensure voluntariness of both the victim and the offender, and the advantage of increasing the role of victim in the resolution process. Section III sketches a procedural critique of this process and explains the procedural problems of practical application, appropriateness of using mediation as a substitute to criminal trial, the compromise of safeguards in traditional criminal prosecution, and the extent of its usage. Specifically, this section identifies the hindrances that frustrates actual application, suggests ways to overcome, and articulates that are importance to be considered during the process of implementation.

II. USING MEDIATION IN RESOLVING CRIMINAL DISPUTES

Mediation in criminal disputes follows the restorative justice pattern of criminal law, unlike the criminal justice system in India which is largely modelled on the lines of retributive justice.[11] Criminal mediation, in all its forms, such as VOM, Community Dispute Resolution programmes, etc. have been largely absent in the Indian scene. Although, we now tend to accept that criminal action is against the state; in the early days of Indian panchayat system remedies were focused on providing compensation to the victims rather than achieving public goals such as retribution, rehabilitation and deterrence. These are products of much arisen transformation of philosophic, economic, philanthropic, and political thoughts later introduced in the system by adopting English law principles that emerged post-Norman invasion in Britain.[12]

In this context, the current offender-focused criminal justice system must be diluted to address the more sensitive needs of the victim. This can be achieved by adopting the restorative justice approach for mediation programs. Victim-Offender Mediation (VOM) is an example of the practical application of restorative justice principles through mediation. These ‘informal justice’ measures may adopt different arrangements depending on the crime. Therefore, the pedagogy and paradigm used in the mediation process should be carefully aligned to the graveness of the offence.

  1. The Structure of the Criminal Justice System in India and Applicability of Mediation to Criminal Cases

Criminal actions are a matter of public affair in India. The restorative justice model followed by criminal mediation techniques makes the criminal action as a matter of interest to all three stakeholders- the victim, offender and state.[13] The concerns here with extending mediation process to criminal disputes are, First, the settlement process is informal and second, it cannot maintain the integrity of a criminal trial. Can dispute resolution techniques like mediation be utilized for deciding on grave offences? Mediation can serve as a fixture to run parallel to the ordinary criminal justice system, if the force of the criminal dispute is balanced. Especially because criminal mediation impacts the fundamental liberties of a person by not allowing the case to be ‘traditionally processed’, the voluntariness of the parties becomes a non-negotiable. The public will have assurance in the criminal mediation process, only if it maintains the integrity of the criminal justice system itself. This can be done by ensuring confidence and accountability in the process. The standard way of keeping ‘information’ confidential in a mediation process cannot be compromised for transparency.

In addition, the applicability of mediation to criminal cases should ideally be a very selective procedure. It can be based on the degree of crime committed. Alternatively, one can also look at the nature of the conflict and whether mediation will resolve it at all. Howard Zehr describes “For a Victim-Offender conflict to be a good candidate…there should something to negotiate… feelings to be dealt with”. This scale of choosing increases the specificity of the cases chose to mediate as almost all crimes have “feelings to be dealt with”. Likewise, whether “there is something to negotiate” in the case if put through a mediation process is perhaps a different dimension.[14] This highly inclusive scale of selecting cases allows one to understand what is at stake. Nevertheless, all criminal action has something of interest or debt that can be the subject of negotiation. Zehr’s criteria of choosing cases proves to be useful in countries like India where the pendencies are high but the awareness and willingness to adopt mediation is low. If mediation itself as a practice has gained the confidence in people; the ease of conducting a mediation procedure in criminal cases would also be accepted. In addition, one popular practice, at least in the first prong of implementing criminal mediation is taking minor crimes in which the parties already know each other.[15] Scholarship also suggests that they also work well with people who know each other partially well due to societal interaction; they include landlord-tenants, neighbors, classmates, etc.[16]

In sum, mediation can be effectively used as an alternative to the traditional criminal prosecution, but the criteria of selecting cases fit for successful mediation should lie with the mediation program administrators or mediators. At the minimum, the criminal justice system must pay heed to certain importance aspects while implementing criminal mediation processes. They include an able judge mediator with requisite qualifications, voluntariness of the parties, submission of documents/information as evidence, confidentiality of information, and issue of the lack of due process in criminal mediation. When a negotiated plea settlement is in view, the judge mediator should also consider the integrity of the plea with the criminal justice system, and have the ability to reject it if doesn’t hold well. Careful steps and measures can ensure the establishment of the first prong of criminal mediation.[17]

  1. Voluntariness of the parties in the criminal mediation process

The aim of mediation in a criminal dispute is to establish and foster a conversation between the victim and offender. Every victim who takes part in it is given a chance to question, address and cure or repair the emotional or physical pain and hurt caused due to the crime that has taken place. Criminal mediation programs like VOM are criticized for disserving victims, offenders, and the state.[18] Criminal mediation suppresses the sensitive feelings and outrage of the victim and seeks forgiveness. It disserves the offenders by not giving procedural safeguards that they would otherwise have in a traditional criminal prosecution and by using the pendencies as a reason to direct cases for mediation.[19] It disserves the state as it overrides established procedures of conducting a criminal trial. Considering the informal nature of mediation and the extent of cries and hues that it has received in other countries, it is safe to assume that “voluntariness” should be a non-negotiable in criminal mediation. The parties, particularly the victim might feel social and moral pressures to participate in mediation.[20] Brown argues that ”both the victim and the offender might be compelled to participate in a mediation set up despite their preferences for adjudication because the prosecutor might create a ‘victim-offender dilemma’ by exploiting the parties limited knowledge on mediation processes.” If one does not know the process, not participating in mediation can have the effect of making the party feel selfish, uncooperative, and stubborn. The voluntariness problem can be tackled by ensuring that both the parties know or receive prior information that refusal to participate in a mediation process does not lead to a penalty or diminished justice.[21] “Officials must judiciously respect both the parties’ interests and give them a freedom of choice to or not to participate. Thus, parties should not suffer for refusing a mediation process.”[22]

The judge mediator should also carefully check the power and social inequalities behind both the parties before offering the mediation process.[23]

Correspondingly, in order to enable criminal mediation to be an efficient and effective alternative to criminal prosecution, voluntariness of the parties helps in parties living up to the deal that they agree to.[24] Hanna (2008) quotes Judge Tracey McCooey, “criminal mediation works if you as the defendant are part of the agreement, the odds of you living up to it is better than if some judge tells you what to do.” Criminal mediation allows the victim to voice out their concerns; object or approve a plea made by the defense. The judge mediator is also given with the opportunity of re-considering a settlement if it seems too harsh for the offender. The conveniences of deciding the deal, expressing sensitive concerns and a neutral party presiding over the set up are not present in the traditional adjudication.

  1. Increases the role of the victim in resolution process

Criminal law has been evolved to reduce the victim’s role in the criminal trial.[25] However, there have been many victim rights movements across the world and the criminal mediations like the VOM are a product of those movements.[26] A significant body of literature has been formed to document ‘victims’ right’ movement.

VOM serves us to bring back the earlier ways of resolving criminal disputes. In fact, victims who have taken part in such mediation processes parallel or prior to an adjudication, have felt that mediation ‘humanized’ their experiences of crimes.[27] This consequence is mostly expected as a conversation or dialogue can bring out the reality of the situation, rather than relying on exaggerated assumptions and speculations of the victim.[28] On the other hand, offenders do have different personalities apart from the characterization given to them in the light of the crime committed.[29] This can be brought out well in a mediation setting as the offender cam offer an explanation and seek apology for his actions, howsoever severe.[30] Though, the apology served might be one that is framed specifically to reduce the liability, the victim might feel the human side to the crime and may express genuine understanding.[31] Brown (2004) writes that in such a situation, both the parties might be faced with many questions that deserve to be fully understood when making the final settlement. Some of these being,

Whether a sincere apology would make the offender deserving of a positive response from the victim? To what extent can the liability be reduced, considering the human nature of the offender vis-a-vis the crime committed? If, the apology is not accepted, does it mean that the offender is now the victim of a new harmful event?[32]

In addition, India is a diverse country with very sensitive issues arising as Court cases that might spur a lot of popular media attention. Such emotional and impactful issues, if dealt with mediation, should follow a multi-session procedure. Most criminal mediation sessions around the world follow single-session patterns except few jurisdictions like Singapore, considering its nature, criminal mediations have different rules regarding the number of sessions.[33] This prevents the victim from getting a better understanding of the offender and giving careful consideration to the problem at hand.[34]

The current justice system forgets to consider the human nature of the crimes committed, and completely takes it as a state’s duty to vindicate criminal activity. Most crimes are very personal in nature, with a reason and background story attached to it. These reasons matter a lot when a society is trying to reduce criminal activity. When victims are not given adequate representation in the criminal adjudication process, their rights to have a say in the trial is compromised. Victim’s needs should be given adequate consideration in a criminal mediation process.

III. BARRIERS TO EFFECTIVE RESOLUTION OF CONFLICT

In the grand scheme of things, it is difficult to formulate this huge change of introducing criminal mediation as a pre-institution to adjudication of the trial. There are several criticisms that are levelled against mediation; mediation in criminal disputes will also have certain compromises to make which might make it ‘flawed’. Criminal mediation will be highly emotionally charged as it brings both the parties to have a conversation keeping aside the difficulties. Therefore, it is pertinent to understand the potential hindrances posed to the application of mediation to criminal disputes.

  1. Procedural problems in practical application

In practice, the procedural problems that criminal mediation might cause are three folds: the selection criteria for taking a case for mediation, the actual operation of the case, and the integrity of the plea settlement with the criminal justice system. First and foremost, formulating a criterion for selecting cases that can lead to a successful mediation process is a difficult task.[35] However, as explained in Section I in Zehr’s criterion, the applicability of cases to a mediation program should be decided in a subjective manner. The method adopted should include questions such as, what is there to negotiate. Are there emotional and sensitive feelings to be dealt with? Will there be any power-imbalance that needs to be tackled due to the personal affiliations such as religion, language, culture, etc.,? But apart from all the above articulated questions, if the volunteer who is assessing the victim and the offender senses ulterior motives, high levels of hostility, etc., the application for a mediation process can be rejected.[36] As long as there is no measure or degree to measure what levels of hostility are allowed, it might result in arbitrary results because some victims might try to control their emotions in order to participate, which might be destructive for them.[37] In these discussions, the victim might become extremely hostile and would want to express their anger. However, criminal mediation can only tolerate certain levels of hostility as it might lead to endless sessions of discussions of just “fact and feelings” with no constructive outcome.[38]

Second, the operation of the mediation program is totally upon how the judge mediator controls this emotionally charged interchange between the parties. In Singapore, a direct victim and offender mediation is only considered after the separate settlements and the final plea settlement by the judge mediator.[39] If India adopts the criminal mediation process in the same format as the civil mediation process, it will enable us to achieve our larger goals with respect to mediation such as, settling disputes quickly and giving an alternate route to ‘humanize’ and personalize crimes, than traditional adjudication. Such an interaction between the parties will be advantageous to both the parties in different ways. One, the victims can overcome resentment and look at the offender as someone who is redeemable;[40] second, the defendant will be able to see the actual picture of the consequences that resulted from his action and accept his responsibility for the emotional and material loss suffered by the victim;[41] and last, if individual crimes are personalized to be resolved among the parties, such a facilitation might rectify the fear in people about legal processes and will enable positive levels of trust in the system. The operation part of the mediation process also faces problems of controlling hostility between the parties. This is particularly important as criminal cases deal with really sensitive issues that might be damaging to the victim’s life and the community at large. There might be lots of hard conversations between the two parties that the judge mediator should facilitate. Otherwise, the criminal mediation process is not going to be a successful one. This is the reason why the screening or selection of the case should also take into account the profiles of the victim and the offender and examine their interest in resolving their issues through mediation.

The last process is the integrity of the plea settlement. This is primarily the duty of the volunteer to select the right cases and the judge mediator’s ability to facilitate the mediation process. There are a string of problems that might crop up when considering the negotiated plea settlement. There could be a possible vitiating factor such as undue influence, which would nullify the voluntariness factor itself and consequently failing to maintain the integrity. If mediation is extended to criminal disputes in India, the judge mediator should be allowed to reject a plea settlement which does not maintain the integrity of the criminal Justice System.

  1. Compromise on safeguards that traditional adjudication provides

There have always been questions surrounding the appropriateness of introducing mediation to criminal disputes. Criminal mediation compromises on some safety pathways that a traditional criminal trial process offers.[42] However, this cannot be said without actually having extended mediation to criminal disputes. This problem also leads us to the observation that criminal mediation tends to disserve the interests of the offender.[43] Criminal mediation’s selection bias thought of high importance for maintaining the integrity of the process, it affects the rights of the offenders by not providing procedural safeguards and equal treatment of offenders. This leaves the mediators or volunteers, to make a ‘choice’ in the persons who would be able to go to a mediation process and those who would not, even if they want to opt for a mediation settlement. Public processes protect offenders with multiple safeguards. They include the right to have a counsel, judicial review of cases, and rules of evidence that determine the ‘truth’ in the case. Another significant compromise is that each of these cases is individually assessed, so there can be no uniformity in the settlements made for each kind of crime. Since, mediation processes are structured towards reaching substantive outcomes; it does not check on procedural aspects. Therefore, it leads to a situation wherein the offender will be disserved if there happens to be an unfair assessment of their moral culpability. It would be more fair and formal to include rules of evidence as a separate session to check facts and accusations. These procedural problems can be solved only if we have formal rules to conduct mediation parallel to the criminal justice system. It should ensure that there are no compromises on the safeguards of a traditional adjudication process.

  1. Criminal mediation cannot be used for all degrees of crimes

The fundamental barrier to criminal mediation is the limitation to the kinds of crimes that are admitted. There are various degrees of harm suffered. There is a basic limitation to use mediation for heinous crimes in the first prong of implementing mediation in the criminal context. As the mediation process evokes controversial,[44] practical[45] and constitutional concerns,[46] it has to be implemented effectively with care. As a result of these huge concerns, India has to ensure that its extension of mediation processes to criminal cases takes place in smaller steps. Simms writes that this insertion of mediation to criminal disputes, should take place in three prongs. First, when it slowly taking minor criminal disputes; second, to take it to the stage of plea bargaining; and third, to include all natures of crimes- minor or adversarial.[47] Interestingly, in India we already practice ‘Plea Bargaining’[48] without having implemented the first prong. Simms model would not work in the same order for India and would have to be altered according to the setting of the law and justice mechanisms present at the moment. This suggests that even if India extends mediation to criminal cases, it also has to simultaneously strengthen practices of plea bargaining using mediation techniques.[49] This would ensure that people in the country soon gain trust in the mediation system and will choose ADR mechanisms for problems that they want to resolve quickly.

IV. POTENTIAL FIELD FOR CRIMINAL MEDIATION – PLEA BARGAINING

A potential field where the techniques of criminal mediation can be put to effective usage is plea bargaining. This section explains the practice of plea bargaining in India, its defects, and the usage of mediation techniques in the process to rectify the defects. The denotation of ‘plea bargaining’ alters its meaning based on the authority and administration. Plea bargaining in a nutshell is “Plead Guilty and ensure lesser Sentence”.[50] Plea Bargaining in India has also permitted Manu’s Dictum[51] i.e. to impose lesser/just punishment on one who accepts his mistake on a bargain with the victim.

Currently, Plea bargaining is a term understood as a functional negotiation between the prosecution and the offender. If the offender confesses and apologizes for the crime that he committed, he may be benefited with a less serious punishment than what is prescribed by the law for the crime committed. As described by Justice A.K. Patnaik, “It is a pre-trial negotiation whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to Court approval.”[52] In Plea bargaining the parties mutually accept the outcome of the negotiation and resolve the charges that are pending. Plea Bargaining has also been overused in India; however, special Adalats are arranged in certain places to dispose off plea bargaining cases.[53] Criminal mediation can help make an over-crowded plea-bargaining more effective as the ease and time involved in solving the case reduces.[54]

Plea Bargaining was established for the first time by the Law Commission of India in the 142, 154 and 177th law commission reports. Chapter XXIA was added to the CrPC on plea bargaining as suggested by the 154th Law Commission Reports. This particular chapter of Cr.P.C. permits plea bargaining in cases of crime that is penalised by imprisonment less than 7 years and not in the cases where death, or life imprisonment or against women and children below 14 years under Section 265 A.[55] Plea Bargaining basically overthrows the fundamental principles of jurisprudence connected to criminal justice. One reason to support that argument is that they do not establish a constant set of legal norms. Section 265A does not apply for crimes where the punishment is less than 7 years and hence missing out on the focus or main intention of its introduction i.e. crimes that are more than seven years can also be included provided the ‘genuinity’ of the plea can be checked for. Plea Bargaining was introduced because justice was delayed due to accumulation of cases. This is where mediation techniques come handy. Mediation for criminal disputes also operates on a similar setting of choosing the cases by analyzing the petitioner and the respondent. As discussed above, this process of “choosing” cases does seem unfair in a mediation trial. However, it very much applies well to Plea Bargaining as the procedures of the Court are still followed but with the bargain of a lesser punishment. So, testing the “genuinity of the plea” is an importance factor for which mediation techniques can help.

However, Plea bargaining also has certain negative aspects. First, Plea bargaining only involves the victim and the offender or the lawyer and hence lacking lucidity in the absence of a third party who can look into the procedure. Second, the prosecution and the offender share contradictory roles in Plea Bargaining. The prosecution’s aim will ultimately be to protect the public interest by punishing the offender severely, but the offender’s ultimate aim will be to get a lenient and less severe punishment. The purpose of plea bargaining is to bring a mutual agreement between the parties, but when this fails the matter is taken to the Court for trial due to which the offender loses a chance of getting a lesser punishment under plea bargaining. The Court will not analyze the entire procedure of plea bargaining that previously happened. This is possible because, unlike mediation, plea bargaining is not characterized as information-confidential forum.

Criminal Mediation in plea bargaining system will enable better case-management. The judge acting as the third party will enhance the process of plea bargaining and decrease the threat of unprincipled plea bargaining as he has experience in dealing with criminal cases. Mediation will help save money, decrease the duration of the formal hearings, appeals and retrials. In mediation a third party gets involved after continuous failed attempts in negotiation or plea bargaining. In such instances a criminal case mediation expert can analyze the positive and negative sides of the case and places his view based on his understanding of the facts and issues. The duty of the mediator is to safeguard the respondent from oppression and to compel the parties to sort out the case and maintain the ethics of the process of mediation.

In plea bargaining where the mediator is a judge will restore the condition of the offender and the victim. The outcome will be an agreement that would not force any decision upon them. It is a difficult to handle the process of negotiation in plea bargaining between the offender and the victim, to find out their will and interests, provide various solutions to resolve the dispute between them and to finally end the issue. This can be executed rightly by a experienced and a trained mediator. Mediation will help to unload a lot of pending criminal and appeal cases. If mediation in plea bargaining fails then a trial would become necessary. This type of mediation in plea bargaining in managing cases can be seen in Singapore.[56]

V. CONCLUSION

India has an overcrowded criminal justice system and has to improvise on case-disposal mechanisms. Traditional criminal prosecution has been structured to take a long time for case-disposal due to adversarial nature of crimes. They need thought, process, and action to be dealt with as few third parties such as the judges and the lawyers have to figure out the correct judgement. However, we fail to recognize the need for negotiation between the parties involved directly – the victim and the offender. As a direct negotiation, without an observer is likely to result in a tight argument. Mediation provides a third neutral party as the judge mediator who can ease tensions and allow the parties to reach a settlement after heated negotiations of concerns. So, this paper addresses the need for mediation, its applicability and the barriers of effective dispute resolution. Nevertheless, there is room for introducing meditation to decrease the case overload, better the plea-bargaining process and serve as a way to address victims’ rights.

This paper also suggests that this infusion of mediation to criminal matters should be slow. An ideal model of implementation is the Simms model that introduces the three prong expansion of criminal mediation. While mediation cannot completely overthrow the ordinary criminal prosecution, it can run parallel as an accepted form of dispute resolution. This will not only make the direct outcome of a faster case-disposal mechanism but will also be true to the constitutional guarantee of justice for all.

Timely justice is the next goal that India needs to achieve and criminal mediation can be the means to that end. India is yet to achieve the milestone of making mediation an accepted form of dispute resolution. Likewise, it should also set the right tone for the expansion of mediation to areas like criminal law. Future trends in the ‘acceptance’ of mediation will dictate whether introduction of mediation to criminal disputes is favorable. Only after the successful implementation of the above process, institutionalization of criminal mediation can happen. As times are changing at fast pace, the justice system should also keep abreast and mold itself accordingly to its fast-paced needs.

  1. National Judicial Data Grid, https://njdg.ecourts.gov.in/njdgnew/index.php (last visited Dec. 19, 2018).
  2. Spencer David & Michael Brogan, Mediation Law And Practice (2006).
  3. Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act § 12 A (2018).
  4. Konoorayar, V, et al., Alternative Dispute Resolution in India- ADR: Status/Effectiveness study, MISC (2014), Available at: https://nbn-resolving.org/urn:nbn:de:0168-ssoar-410340 (last visited Dec. 9, 2018)
  5. Hiram E. Chodosh, Mediating Mediation in India, in International Conference on ADR and Case Management (2003), Available at: http://lawcommissionofindia.nic.in/adr_conf/adr_index.htm (last visited Dec. 10, 2018).
  6. Peggy L. Chown, et al., Mediation in Juvenile Criminal Cases (1995). Available at: https://www.upcounsel.com/lectl-mediation-in-juvenile-criminal-cases.
  7. Luminita Dragne, Criminal Mediation in the Romanian Law System, 2 Agora Int’l J. Jurid. Sci. 91-94 (2013); Veevers, J. Pre-Court Diversion for Juvenile Offenders, in Mediation and Criminal Justice: Victims, Offenders and Community (1989); H. Karkkainen, Treatment of Delinquent Youth in Finland, 68 Child Welfare (1989);
  8. See Ravi Deshpande & Marcella D’Souza, Research report-Panchayat Raj on the ground issues in village-level Panchayat Raj operation (2009). Available at: https://wotr.org/sites/default/files/PNP-Handbook_0.pdf (last visited Dec.20, 2018)
  9. Industrial Disputes Act § 4 1947; Civil Procedure Code (CPC) § 80, 89, 107(2), 147 (1908).
  10. Raghunath Das v. UOI AIR 1969 SC 674; Ghanshyam Dass v. Domination of India 1984 (3) SCC 46; ONGC v. Western Co. of Northern America 1987 (1) SCR 1024; Rajasthan State Road Transport Corporation v. Krishna Kant 1995 (5) SCC 75; ONGC v. Saw Pipes Ltd. AIR 2003 SC 2629; K.A. Abdul Jalees v. T.A. Sahida 2003 (4) SCC 166; Salem Advocate Bar Association (I) v. Union of India (2003) 1 SCC 49; Afcons Infrastructure Ltd. v. Varkey Construction Co. Pvt. Ltd. 2010 (8) SCC 24.
  11. Mark S Umbreit, Restorative Justice Through Victim Offender Mediation:A Multi-Site Assessment, 1 West. Crim. Rev (1998). Available at: https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=181237 (last visited Dec. 3, 2018).
  12. See Mary Ellen Reimund, Mediation in Criminal Justice: A Restorative Approach, 22 Idaho B. J. 46 (2003).
  13. See Howard Zehr, Changing Lenses: A New Focus For Crime And Justice (3rd ed. 2007).
  14. Zehr, supra, 11.
  15. Jack Hanna, Mediation in Criminal Matters, 15 Disp. Resol. Mag. 5, 6 (2008).
  16. See Melody L. Luetkehans, Misdemeanor Criminal Mediation, Nevada Lawyer, 24 (1994).
  17. Larysa Simms, Criminal Mediation is the BASF, of the Criminal Justice System: Not Replacing Traditional Criminal Adjudication, Just Making It Better, 22 Ohio St. J on Disp. Resol. 797, (2007).
  18. Jennifer G. Brown, The Use of Mediation to Resolve Criminal Cases: A Procedural Critique, 43 Emory L.J. 1247, 1249-50 (1994).
  19. Id.,
  20. Id. At 1266.
  21. See Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85,148 (2004).
  22. Id. At 134.
  23. Luetkehans, Supra, 26. Differences between the parties in terms of power, social background, culture, language, tends to create an imbalance in the mediation process and makes it difficult to restore peace in a just manner; see also Richard Delgado, Goodbye to Hammurabi: Analyzing the Atavistic Appeal of Restorative Justice, 52 Stan. L. Rev. 751 (2000).
  24. Hanna, Supra, 6-7.
  25. Karen L. Kennard, The Victim’s Veto: A Way to Increase Victim Impact on Criminal Case Dispositions, 77 Cal. L. Rev. 417, 419-20 (1989); L.T. Hobhouse, Law and Justice, in Considering The Victim: Readings In Restitution And Victim Compensation 8 (Joe Hudson & Burt Galaway eds., 1975); William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 Am. Crim. L. Rev. 649 (1976).
  26. Brown, Supra, 1255-1257.
  27. Alyssa H. Shenk, Victim-Offender Mediation: The Road to Repairing Hate Crime Injustice, 17 Ohio St. J. on Disp. Resol. 185-186 (2001). citing Victim-Offender Reconciliation Program Information and Resource Center, Victim-Offender Mediation Dialogue Programs (1994). Available at: www.vorp.com/articles/abaendors.html. (last visited Dec. 10, 2018)
  28. Reimund, Supra, 24.
  29. John Braithwaite, Narrative and “Compulsory Compassion”, 31 Law & Soc. Inquiry 425, 433 (2006).
  30. Marty Price, Personalizing Crime, Disp. Resol. Mag. 8, 9 (2000)
  31. Jennifer Gerarda Brown, The Role of Apology in Negotiation, 86 Marq. L. Rev. 665, 668 (2004), citing Lee Taft, Apology Subverted: The Commodification of Apology, 109 Yale L. J. 1135, 1140 (2000).
  32. Id. at 673.
  33. Rathna N. Koman, Balancing the Force in Criminal Mediation, 7 Beijing L. Rev., 171-180 (2016). Available at: https://file.scirp.org/pdf/BLR_2016080115030823.pdf. (last visited Dec. 3, 2018)
  34. Shenk, Supra, 195.
  35. Brown, Supra, 1282, citing See, e.g., Victoria E. Lawry, Victim Offender Reconciliation Program in Polk County, Iowa Law Alert, III- 7 (1992).
  36. Zehr, Supra, 11, citing See Robert B. Coates & John R. Gehm, Victim Meets Offender: An Evaluation Of Victim-Offender Reconciliation Programs (1985).
  37. Brown, Supra, 1284.
  38. Id.,
  39. Koman, Supra, 176.
  40. Bibas, Supra, 814.
  41. Simms, Supra. 828.
  42. Flora Go, Mediation as Practiced in criminal law: The Present, the pitfalls, and the Potential, James Boskey Dispute resolution Essay Competition- Winner, (2010). Available at: https://www.americanbar.org/groups/dispute_resolution/awards_competitions/james_b_boskey_law_student_essay_contest_on_dispute_resolution/ (last visited Dec. 4, 2018)
  43. Brown, Supra, 1247.
  44. Maria R. Volpe, Promises and Challenges: ADR in the Criminal Justice System, 7 Disp. Resol. Mag., 4, 5 (2000).
  45. Id. At 7.
  46. Simms, Supra, 826-838
  47. Id. At 799-200.
  48. See Infra Section IV.
  49. Id.,
  50. Suchitra Ghogare-Katkar, Plea Bargaining- Challenges for Implementation, Bharati L. Rev., (2016). Avialble at: http://docs.manupatra.in/newsline/articles/Upload/4C2F9AF3-AAC9-4059-A312-A7E5A00A5F0B.pdf (last visited Dec 20, 2018)
  51. Ritika, Restorative justice under the Criminal Justice System with special reference to Plea Bargaining, The World J. on Jur. Polity. (2017) Available at: http://jurip.org/wp-content/uploads/2017/03/Ritika.pdf (last visited Dec. 18, 2018)
  52. Hon’ble Mr. Justice A. K. Patnaik, Speech on National conference on Plea Bargaining & sentencing, Orissa Judicial Academy. (2013).
  53. Konoorayar, Supra, 125.
  54. Rajiv Dutta, Mediation in India: Building on Progress, Int’l Bar Assoc. (2015). Available at: http://www.ibanet.org/Document/Default.aspx?DocumentUid=B705AE33-0AF0-4DA2-9C93-7421D28D2767 (last visited Dec. 20, 2018)
  55. Code of Criminal Procedure, 1973, § 265L.
  56. Norjihan Ab Aziz, et al., Enhancing Plea Bargaining Process through Mediation, 3, Int’l E-J. of Adv. In Soc. Sci. 309-310 (2017). Available at: http://ijasos.ocerintjournals.org/download/article-file/312372 (last visited Dec. 21, 2018)