Henry J. Brown
Mediation is a facilitative process in which disputing parties engage the
assistance of an impartial third party, the mediator, who helps them to try to
arrive at an agreed resolution of their dispute. The mediator has no authority
to make any decisions that are binding on them, but uses certain procedures,
techniques, and skills to help them to negotiate an agreed resolution of their
dispute without adjudication.
Mediation is an alternative method of resolving disputes without any
intervention of strict court proceeding. The process of mediation involves a
structured, voluntary and interactive negotiation process between the parties to
the dispute where a neutral third party uses communication skills and
negotiation techniques to help the parties in the settlement of the dispute.
Moreover, it is said that majority of the disputes which are referred for
mediation gets resolved through this process if parties come by there free will
to negotiate. Therefore, this might be reason that the learned judges of the
Hon’ble Supreme Court referred the dispute to the mediation panel.
Before diving in to the matter of Ayodhya land dispute directly it will be
evident to understand the theory behind mediation. Mediation is a process by
which parties agree to settle by negotiating their interests through a neutral
mediator. The definition clearly highlights three very core aspects of
mediation, first, where parties agree to settle, second, by negotiating
and third, through a neutral mediator. If we analyze only these three very core
aspects of fair mediation process then, we will find that the scenario was such
that it was difficult to get this dispute settled through mediation.
Now, Firstly, it says that 'where parties agree to settle’. It reflects that
there must be free will of the parties to enter into mediation. It means that
parties themselves should agree to settle the dispute. As per the redily
available data, in the instant matter of Babri – Masjid land dispute, political
attempts were made to settle the dispute by our Prime Ministers: Chandra Shekhar
hain in 1990; Narasimha Rao in 1992; and AB Vajpayee in 2003 – attempted to
hold a mediation process but all attempts failed as the parties were unable to
reconcile on certain fundamental points. Then in 2010 Allahabad High Court
ordered to settle the dispute through mediation but yet again the parties
explicitly denied for settlement. In 2017 Justice Kehar expressed to be a
mediator for the dispute but the parties denied to settle.
All these instances reflect that parties were never willing for outside court
settlement. But yet again the Supreme Court of India on 08 March 2019 ordered to
settle the dispute through mediation and appointed retired Apex Supreme Court
Judge Justice Fakkir Mohamed Ibrahim Kalifulla, Senior Advocate Sriram Panchu
and spiritual guru Sri Sri Ravi Shankar to conduct mediation. But after
noting the above facts mentioned it is worth understanding that the parties
never deliberately agree to settle the dispute through mediation. This reflects
that there was no free will from the side of parties to enter into mediation
process. Therefore, the idea of where the parties agrees to settle fades away.
Secondly, parties must be ready to negotiate
. The above mentions stances
which are coupled with the News channels and Media reports reflects that parties
were not ready to negotiate. Even though the parties adhered to the Supreme
Court’s order to settle the dispute through mediation but there was no genuine
consent by the parties.
In the mediation process, it is necessary for both the parties to be open for
negotiation. It has three aspects: first, the parties must have genuine desire
to settle the conflict; second, the parties must cooperate in the mediation
process; and third, there is acceptance of reciprocity. Let us understand one by
one each aspect.
- A genuine desire to resolve the conflict:
This element is called mediating in good faith. It says that, if the
mediation is to be successful, the parties must have both the desire and the
ability to engage in negotiations that may lead to settlement. Although the
session may be court ordered and parties may be compelled to attend,
mediation is at its root a voluntary process; each party must, therefore,
have a real desire to settle the case or the process simply cannot work.
In the instant matter, it was reflected through-out the process that there
is no genuine desire of the parties to settle the conflict. There was
continuous denial to settle and there was continuous denial to negotiate.
Therefore, it explains that the parties do not have genuine interest to
resolve the matter or precisely to negotiate.
- Cooperation in the process:
The process of mediation requires cooperation among parties. Cooperation can
also generate new positions or creative solutions that no one may have
previously considered. The parties must also cooperate in following the
mediator’s direction on when to terminate or adjourn the mediation.
Cooperating with the mediator is absolutely essential to a successful
In the instant case, there were statements made by the parties from the very
beginning that reflected that they do not want to compromise. Now since the
statements were made by some representatives of the community who is
interested in the land there is pressure from all sides and from all aspects
which could lead if they readily cooperated for negotiation. Also,
cooperation and deliberation of parties generate new creative solutions but
in this case there was win or lose situation for the parties because of
their beliefs. Therefore, solutions like making library or parks was never
accepted and pondered upon.
It is a universal truth that something must be given in order to get
something in return. The converse is also true – if you give something, you
will get something in return. Not surprisingly, this law lies at the heart
of effective negotiation and equally applies to a successful mediation. You
might say the process of give and take is the life blood of mediation.
The Babri masjid dispute is such that all the parties are interested in one
particular piece of land due to their beliefs. Reciprocity among the parties was
never agreeable. Therefore, it leads back to the same point that the parties are
not only ready to give up their rights on that particular piece of land but also
not accepting other land giving up the disputed land.
Thirdly, it is always said that a mediation is settlement through a neutral
. So, apart from the above stated intricacies there were many more
reasons for not the failure of the dispute settlement. The Latin maxim Nemo
in propria causa judex, esse debet
means, no one should be made a judge in
his own cause. It is popularly known as the rule against bias. It is considered
as the minimal requirement of natural justice that the authority giving decision
must be composed of impartial persons acting fairly, without prejudice and bias.
Also, if the parties feel that the judge in front of them is not fair or can be
biased the parties are allowed to change the bench. Similarly, in mediation, it
is required that mediator(s) should be fair and not biased. In the Babri masjid
- Appointment of the right mediator:
The biggest variable which makes a mediation successful is the appointment
of the correct person. If you appoint the wrong person, the chances of
success are much lower.
In the instant case, the credibility of Sri Sri Ravi Shankar was questioned
by the party in dispute. When a credibility of a mediator is in question
then the whole idea of settling the dispute through an independent panel or
a neutral party is defeated. Therefore, even if parties cooperate and then a
party alleges that the mediator is biased then automatically mediation fails
in that stage only because anyways the party alleging that mediator is
biased will not settle even if tries to cooperate.
- Managing it carefully:
One of the crucial issues of mediation is that workplace mediation can morph
from a discussion about getting two people to work together to becoming a
Compromise Agreement. As a consequence, it requires careful, sensitive
management by the mediator.
It is fairly the duty of the mediator to act in such a manner that convinces
parties to negotiate and he should not make any statements and should not
indulge himself in any activities which results in questioning his credibility
as an impartial mediator. Also, since mediation is a complete confidential
process, therefore, not much official reports are available as to what actually
happened inside doors.
But relying upon the news updates and the cut short videos it was debated that
Sri Sri Ravi Shankar made a statement:
surrendering this land to the people who demolished the Babri Masjid or to a
particular Organisation. On the contrary, they are gifting it to the people of
This statement prime facie without reading upon what were the circumstances when
the statement was made, reflects that Sir Sri Sri is trying to convince the
party to give up on the land as a gift to India. It is necessary to understand
that even if Sir Sri Sri had no intention to be bias towards one side but the
party (or community) which is interested in the land will consider it bias. Now,
when the party itself believes that the mediator is biased then there can be no
The other aspect which also plays a huge role is availability of time granted
for mediation. The dispute of Ayodhya land is very old and there were many
attempts made to get the dispute settled through mediation. These attempts were
not only to get rid away of the dispute but to make both the parties negotiate
and settle in an amicable manner. The Supreme Court gave a month time to settle
the Babri Masjid dispute.
It was the case that the Apex court would have extended the time if it could get
results. But when the initial time frame of a month is given then the parties
have other point of disagreement again. Therefore, in a manner this lead the
parties to not negotiate and let the Apex court decide and pass the verdict. The
parties earlier also never wanted to negotiate as they always denied for
negation. Therefore, it might be treated as a very minor factor.
Apart from these intricacies, it is necessary to understand that the dispute was
not between the three parties per se but there was pressure from the whole
community supporting that party to act or react in a certain manner. The dispute
of Ayodhya land unlike a private dispute brings is a dispute where two religions
are before each other. The instant land dispute is such that had not been
settled if the Apex Court did not announce the verdict.
This dispute is not merely the dispute of land but it is dispute between two
religions and their beliefs. Mediation is just enabling or forcing parties to
communicate and try to settle in an amicable manner rather than getting supreme
court verdict. It is known that mediation is a settlement procedure where both
the parties negotiate and try to settle down things in an amicable manner. The
Ayodhya land dispute is the dispute between two major religions.
Therefore, initiating amicable settlement even though chances were bleak was a
positive step taken by the Apex Court. Even Supreme Court tried to make an
effort but since as mentioned through-out the article it is necessary for the
parties to genuinely want negotiation in the matter. Each party had their own
interest and pressures from the concerned community. Therefore, in my opinion,
it was a difficult matter to be settled through mediation.
- Ayodhya land dispute Judgement at:
- Henry J Brown and Arthur L Marriott, ADR Principles and Practice (2nd
edn, Sweet & Maxwell 1997).