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Why Did Babri Masjid Mediation Failed?

Henry J. Brown explained that:
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.[1]

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.[1] 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.
  1. 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.

  2. 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 mediation.

    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.

  3. Reciprocity:
    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 mediator. 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 dispute
  1. 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.

  2. 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 India.

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 successful mediation.

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.

References:
  • Ayodhya land dispute Judgement at: https://www.thehindu.com/news/national/ayodhya-verdict-live-updates/article29929219.ece
  • https://www.thehindu.com/news/national/ramjanmabhoomi-babri-masjid-title-dispute-the-story-so-far/article29925573.ece
  • https://www.thehindu.com/news/national/ayodhya-verdict-temple-at-disputed-site-alternative-land-for-mosque-says-supreme-court/article29930961.ece
  • https://www.thehindu.com/news/national/a-chronology-of-the-ayodhya-dispute/article29929198.ece
  • https://www.thehindu.com/news/national/ayodhya-dispute-mediation-has-failed-says-sc/article28795380.ece
  • https://www.lawreform.ie/_fileupload/reports/r98adr.pdf
End-Notes:
  1. https://www.sci.gov.in/pdf/JUD_2.pdf
  2. Henry J Brown and Arthur L Marriott, ADR Principles and Practice (2nd edn, Sweet & Maxwell 1997).

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