With the advent of the 20th century and the first wave of feminist movements, the conventional patriarchal narrative of the “woman’s place in the world” has been constantly subjected to immense scrutiny. With the influx of liberal and radical feminist thought, these movements have in many ways successfully challenged status quo by highlighting the long-standing struggle, faced by women, posited by social, political, and legal institutions. In many ways, these institutions have been devoid of the female narrative which has conditioned them into institutions that are ‘created, regulated and recognizable’ only by men. As a result of this conditioning, over a period of several hundred years, these exclusionary narratives have percolated into the legal system – casting aside important perspectives which might have been proposed by the opposite sex.
While judicial systems and legal jurisprudence continue to be dominated by the male narrative, alternative mechanisms of dispute resolution have emerged as a potential institution which provides a platform for narratives that have been lost in the cacophony of sexism, institutional barriers, and exclusion. This stance is corroborated by Janet Rifkin who argues that ‘mediation’ has become a more suitable alternative to ‘litigating disputes’ because firstly, our legal institutions are not equipped to handle the diverse set of disputes that are brought before it and secondly, the entire scheme of the adversarial system is detrimental towards those relationships which involve intimate bonds between individuals. Some feminist scholars contend that the informality of the mediation process, coupled with the idea of the ‘dominant – submissive’ relationship creates fertile ground for males to continue asserting their perceived ‘dominance’ over female counterparts (especially in matrimonial proceedings). While these allegations of skewed power relations in an alternative mechanism hold some merit, another group of feminist scholars have contended the informal nature of the mechanism is a source of motivation for women and it empowers them to utilise this conducive forum – to bring alternative perspectives to a seemingly homogenous system.
In light of these starkly contrasting academic viewpoints, I aim to explore the potential benefits that mediation offers for the feminist perspective. By examining the connective tissue which binds these perspectives to the larger institution of the legal system, I shall explore the benefits of incorporating the feminist perspective and the inherent threat posed to alternative mechanisms by the existing system. I shall finally provide a conclusive critique of areas of mediation that have mutually benefitted from the feminist perspective, in addition to expounding upon those areas that can undergo further improvement.
MEDIATION AND ITS ROLE IN DISPUTE RESOLUTION
Mediation is a mechanism in which an impartial third party, commonly referred to as the mediator, serves to promote dialogue amongst parties involved in a particular dispute. This increased interaction, provided by the mediator, often leads to a settlement of the conflict. It is, by definition, a mutual, interpersonal, and confidential operation. Non – disclosure laws are frequently imposed, and details obtained or utilized during the resolution process is inadmissible and cannot be relied upon in the circumstance wherein the parties have to resort to litigation. The informal design of mediation and the structures, within which it operates, helps the disputing parties to preserve their individual autonomy which helps them determine the result of the mediation process.
This is the primary advantage of mediation, as compared to litigation where the fate of the dispute lies in the hands of a judge or a jury (depending on the jurisdiction). This feature enables for administrative autonomy and is much more attuned to the requirements of the stakeholders than what one would experience in conventional litigation. While alternative dispute resolution frameworks – with particular emphasis on mediation – are assimilated further into the status quo of hierarchical legal institutions, academic discourses on mediation often overlook the significance of its core element in which it claims to be an effective alternative dispute resolution procedure. By adopting the same (but slightly toned down) vocabulary and semi-formalistic approach, the benefits and disadvantages of mediation are comparable to the prime style of dispute resolution (litigation). In several instances, it would be reasonable to contend that the benefits of this process outweigh the ones provided by the process of litigation.
Interestingly, since mediation is considered to be ‘less formal’ than that of the structured ‘independent judicial process’, stakeholders can ultimately rely on getting a final attempt at resolving their dispute in court in the event that the mediation process does not work for either of the competing parties. Fortunately, with the passage of time, the competing parties have inculcated with the perception that the process of mediation involves ‘amicable rivals’ pursuing a friendlier, subtler mechanism of settling their disagreements. This dispute resolution mechanism can also be interpreted as a way of discovering sufficiently desirable results, rather than a medium of reaching an agreement.
A FEMINIST CRITIQUE OF MEDIATION: INADEQUACIES, BENEFITS AND THE ROAD AHEAD
The systematic evaluation of the mechanism of mediation with the incorporation of a feminist angle sheds light on certain issues that are diametrically opposed to conventional academic research. Some of these issues can be posited by way of the following questions – whether there is a fundamental difference between how male and female individuals approach problems to settle conflicts differently , or if one sex is imbued with particular characteristics entailing care, consideration, and obligation as opposed to the other sex, which may restrict itself to theoretical underpinnings prescribed in the intent of the law. While these are few plausible questions, upon contemplation, they reflect a deep chasm of unanswered questions. This gap, caused by the paucity of feminist literature, is yet to be filled.
Some empirical studies have concluded that men tend to negotiate “more aggressively and competitively” than their female counterparts. In light of this observation, there is good reason to believe that feminists will find solace in the process of mediation. If the dispute resolution process turns out to be amicable and collaborative, wherein both sides agree to ‘hear the other side’, it certainly facilitates a conducive environment for the elusive female voice.
As a result, a mediator should facilitate clear dialogue, not distort existing interpersonal bonds between the parties, ensure that there is participation by everyone in the group to reach innovative and equitable alternatives. It is only when these factors are accounted for, that one can expect there to be a better representation of women’s experiences.
This added obligation, on mediators, will necessitate the mediator’s monitoring and correction of negotiating power differentials in the negotiation phase. As a consequence of this added feature, social inequality of power does not have to have a negative impact on the outcomes of the mediation process for women. This enhanced fairness-enforcing role will give the mediator more leverage in determining that collaborative negotiation does not give way to the power-play of haggling. Since susceptibility to competitiveness is a significant barrier to collaborative negotiation, this enhanced feature of mediation, especially the role of a mediator, may possibly be a significant development. The role will enable the mediation process to transform into a more powerful feminist instrument by empowering the collaborative style and feminist perspective with the social reinforcement they require to fully change conventional dispute resolution mechanisms.
Like most resolution mechanisms, mediation has its own set of possible disadvantages. The active engagement of the feminist voice tends to mitigate such possibilities.
Essentially, a professional mediator might possibly be able to consider different circumstances and therefore open themselves to account for both female and male subjective experience, thus minimizing the objectivity that might be propounded by the conventional male standpoint.
Additionally, by allowing the stakeholders to express their personal viewpoints in a cooperative dialogue, a mediator can indeed play the role of a catalyst in facilitating the process whilst minimizing the negative implications of institutional authority.
FEMINISM & MEDIATION: A (POSSIBLE) SYMBIOTIC RELATIONSHIP?
As mentioned previously in this piece, mediation’s great success stems from its unique guarantee of providing an alternative mechanism to resolve disputes amicably. This is because like mediation, feminism has encountered similar obstacles and has been constrained by the conventional institutions that have garnered a long-standing affinity in society’s eyes. Both mediation and feminism have been constantly developed, debated, implemented, and denounced in a range of circumstances. Both concepts can be seen as ‘silenced philosophies’ – which have for the longest time, tried to construct a viewpoint which is not dependent on the oppressive, hierarchical, binary systems which tend to support majoritarian sentiments as opposed to providing a platform for the cacophony of voices which they look upon with utmost disdain.
It is pertinent to mention at this juncture that when feminist jurisprudence is integrated within the framework of mediation, it encourages a transformative reconceptualization of the alternative dispute resolution mechanism. As a result of these benefits, the mechanism of mediation tends to stray far from the conventional ‘rights-based narrative’ that forms the crux of conventional legal jurisprudence. Instead, it pays close attention to inherent biases in institutional structures and subsequently helps redefine these narratives to ameliorate the way women interact with such institutions and themselves. In conclusion, the duo of mediation and incorporation of feminist narratives assumes a symbiotic relationship – creating fertile ground for a legal framework that motivates women to share their individual and collective experiences.
REFLECTIONS ON JUDICIAL PRECEDENTS
Several scholars have contended in the postulate that while women take a pragmatic approach towards such resolution mechanisms, as individuals they would be more likely to sacrifice autonomy of some of their individual rights during the mediation process. This makes them more susceptible and consequently puts them in a predicament where they end up reaching a resolution that serves no purpose for their individual selves. In India, mediation is now an option wherein courts can refer individuals to a mediation centre, or it can be availed in a myriad of matrimonial or family-centred disputes such as marital separation and spousal violence. In such disputes, the process of mediation is frequently viewed as being immensely detrimental to by women that have been exploited by their male counterparts. Such exploitation could stem from domestic abuse or the general power dynamics that usually exist in the form of a dominant-submissive relationship. As a result of this impeding power dynamic, female counterparts often compromise on their decisions and are left with comparatively less bargaining power because of the informality of the setting.
In the case of Jaya Sagade v. State of Maharashtra , it was refreshing to see how the Bombay High Court quashed a State order that prohibited couples from resorting to mediation/ counselling in cases of domestic violence without an order from the requisite court. Recognizing the benefits of mediation in matrimonial disputes, the Bombay HC asserted that mediation centres could not be reduced to a passive role, waiting for referrals from courts. It further adopted a progressive stance by holding that during mediation, a survivor (female) must be informed about her available choices during the process and should be provided with effective legal counsel with respect to her inalienable rights. Furthermore, the court emphasized that there should never be any coercion on the woman to settle a grievance that would not be in her best interests.
However, there are certain cases which are detrimental to the empowerment of the feminist perspective and display the contrasting power dynamics between the two sexes. In the case of K. Srinivas Rao vs D.A. Deepa , the Supreme Court was tasked with adjudicating upon a case wherein the (respondent) wife had filed a petition seeking restitution of conjugal rights from her (petitioner) husband from whom she had separated owing to matrimonial discord. The Court held that the problem would not have gotten too far if the woman had been given proper advice, advising her that her acts would not help her get her spouse restored to her. The circumstances would not have deteriorated so much had the disputing parties sought to settle the conflict from the outset. The Court recommended mediation as a solution, and surprisingly opined that “dowry cases should be referred to mediation because they are non-compoundable offences, but even if the parties wish to settle, they can do so”. This rationale evidently is a reiteration of an abstract and patriarchal adherence to the law, rendering the aggrieved woman voiceless.
Women in general, would often feel like they are outsiders, having been excluded from the narratives of the conventionally male-dominated legal system. Feminist philosophy stresses meaning and the significance of defining one’s individual perspective and accepting it their own. The judiciary has been reluctant, and therefore incompetent, in acknowledging feminist issues and changing the law to reflect such observations. Therefore, mediation provides a viable method of settling disputes by encouraging competing parties, of all sexes, to represent their own individual experiences. By adhering to its informality and conduciveness, mediation shows signs of a bright future – by providing a platform for those feminist perspectives that have, so far, eluded the public eye.