Building a Social Muscle via Mediation

This is an edited version of the CAMP IDEX mediation webinar on ‘Building a social muscle and finding common ground.’ Adversarial behaviours dominate our lives, but the culture of collaboration is growing. Justice Kurian Joseph, Sriram Panchu and Rohini Nilekani discuss how mediation can help society find common ground in this session, moderated by Krishna Udayasankar,

I have been very lucky in my life, to be an active member of civil society and a philanthropist, as well as having a ringside seat to the corporate and government sector thanks to my husband, Nandan. Through these experiences, I was able to see that, at the core of it, all three sectors of Samaaj, Bazaar, and Sarkaar, seemed to have similar societal goals but there was a lot of friction between them because of their different approaches. This was especially true when it came to civil society and the Bazaar sector, and the Samaaj and Bazaar sector. But whether one is at the World Social Forum or the World Economic Forum, eventually people were talking about how humanity can live together and be sustainable and equitable. The problem is that there are many different paths to those goals and not enough conversations happening across the divides.

This realisation is what inspired me to start my show and my book. There were a lot of positive responses from that, and the people I spoke to were more than happy to have that dialogue. It’s just that nobody had actually made the dialogue happen, so I saw a great need for intermediary organisations to come together and provide platforms for civil public discourse. With the rise of social media and deepening political polarisation, the need for bringing sectors and players together seems to be more urgent than ever. So I set up a philanthropic portfolio around the idea of Uncommon Ground which asks whether we can have safe shared spaces to talk through our differences.

The Purpose of Law

As Justice Joseph mentions, from his experiences as a lawyer and judge, opposing parties may have discussions but that does not necessarily mean that they are fruitful. Instead, we need more dialogue between people and for mediation to alleviate mistrust, wrong notions, and misunderstandings, if we are to move forward as a peaceful society. The purpose of the justice system is the resolution of disputes and settlement of grievances. So we need to create a more balanced atmosphere in our courts, at least between lawyers. Outside the courts, we need to see mediation as a proselytizing process for the justice delivery system to take on, Justice Joseph argues. For example, we could look to the interior system where the village head calls for people, hears both sides, and helps them to bring about peace. Those situations allow for better dialogue between parties. Facilitated dialogue between people also meant less communal problems and inter-community disputes because there were people to guide them and bridge misunderstandings.

Courts however, take a very orthodox position and judges only see their role in terms of deciding the law. But what is the purpose of law? The law is meant to create order in society and to prevent disorder. If we can achieve this by resolving disputes and finding a solution for grievances, what can be more just than that, asks Justice Joseph. We need to differentiate between the idea of law and the idea of justice. Sriram Panchu agrees, noting how every court now has a mediation center where judges routinely refer cases. It’s where a different kind of pathway to resolution is being practiced, with trained lawyers who mediate those cases. So India’s legal system has beautifully intertwined mediation and litigation. With thousands of mediators resolving lakhs of cases, the concept has successfully taken root here.

Panchu notes that it is increasingly necessary for courts to get involved in public disputes, as with the Ayodhya case. He says that this is happening because rather than reaching across divides, politicians today thrive on divides. Therefore, there is a huge vacuum in the institutional space for those who must push for creating a common ground. This is the role of the courts now, because when a dispute goes to court, the court is in a great position to initiate mediation and to administer, monitor, and oversee it. The court cannot mandate that people should come to an agreement in a public dispute, but it can certainly facilitate the process by appointing good mediators whom all parties trust and providing the aura of confidentiality in mediation. That’s extremely valuable, says Panchu, because you can’t have mediation with the press reporting on it every evening, especially given the temperament of some of our news anchors.

Ayodhya was a good example of the court mandating its confidentiality and everybody respecting it. It was such a highly contentious dispute with wide implications, spanning history, politics, law, mythology, and a current communal living intersection between past, present, and future. In Panchu’s opinion, it was a tremendous testament to the judicial wisdom of leadership, statesmanship, and court directed mediation. Regardless of the final resolution, what mediation did was bring the two communities together to acknowledge that this issue needs to be resolved. This can’t continue to cause tension between Hindus and Muslims in India. People wanted a resolution which would benefit both communities and they wanted to ensure that this would never happen again. To Panchu, this speaks volumes about the social fabric of the country.

A New Curriculum for This Century

What has become clear nowadays is that political polarisation has entered every sphere of our lives, including our home life. It’s difficult sometimes to even have conversations within families without taking a staked position and saying, “I think like this, therefore I must be right and you must be wrong.” This kind of a culture is not good for any society. So how do we build a kind of curriculum for this century? Although we don’t know quite how to get there, we can all agree that in order to do so we must reduce the friction to collaborate. We have to reduce the divides between us because the kind of problems that we’re facing, even right now with the pandemic, are global problems that affect us all intensely and personally. The only way out seems to be cooperation, but we are losing the art of cooperation.

So we need to start building a societal muscle and begin talking across divides, understanding the source of conflicts and being able to put ourselves in the other side’s shoes. If that could become a new public culture, a new curriculum for young people to learn from and practise their societal muscle with, then we’d have a better chance of facing any other crises the future has in store. This is what I mean by societal muscle, and it’s the work that myself and many others are now concerning ourselves with.
At the end of the day, we want a society that is less litigious, but that means that we need equity at the table where the dialogue is taking place. So when we design this new curriculum and when we’re talking about building a societal muscle, the first step requires us to accept that we are all equal and our goal is not a win for just one side, but for a reduction in conflict that benefits everyone. An example of this happening successfully is when we supported the water conflict resolution forum. They had done a lot of work in the Cauvery basin with farmers between Tamil Nadu and Karnataka. They worked in the Kerala and Orissa water basins and made several strides in setting politics aside so people could come together and agree to share water. So we have to offer more opportunities like this across society in a structured manner.

In Panchu’s words, good mediations and settlements don’t result in either party settling for less, but actually settling for more. When you expose parties to their true perspective, the long-term interest, and the lack of good alternatives to settlement, then they come to realise that a settlement is in everyone’s best interest. Often, what impedes justice from being carried out is that the involved parties such as politicians may be benefiting from the dispute itself. If the voice of the commons was activated and people had the agency and ability to speak for their own interests, settlements would come about in a more harmonious way. All governments and all politicians react to pressure. If they see mounting public opinion, they won’t go against it. Panchu points out that building societal muscle is so crucial, in order to give people back their power, voice, and agency.

A Culture of Mediation

Justice Joseph recalls a particular legislation from 10 years ago called the Gram Nyayalaya Act. It was meant to take the courts to the villages and allow people to experience justice in an informal but constitutional way. Unfortunately, the Gram Nyayalayas got converted into Magistrate or Munsiff Courts in all the states. But the aim was to include elected people in trying to resolve disputes in a panchayat. It’s still an untested concept and needs initiative from the courts, but we need something like this to address problems at a grassroot level.

We must develop a culture of community mediation, says Justice Joseph. India is facing many problems because fruitful intra-community and inter-community dialogue is not taking place. These disputes are often volatile in the Indian context because people are very religious and feel strongly about their beliefs. So we need to develop an inter-community dialogue culture and create common platforms for the same. Panchu agrees with the need to focus on the importance of dialogue especially when it involves public disputes. Opening up dialogue eases tensions, changes people’s perspectives, and gets both sides engaged in finding solutions rather than hammering away at each other. So how can we take significant public disputes and find ways of opening up this dialogue through talks, lectures, writing, sponsored studies, monographs, and TV programmes? And can we actually give participants a top-level panel of possible mediators to engage with them?

This country is blessed because it has a powerful constitution, we simply need to bring those values back to the forefront, argues Panchu. We all have private religions, but we have only one public religion and that’s the constitution. So in our public space, that’s the religion we must anchor our spirit with and those values are what will keep this country united. We need to return power to the people, giving them a voice and agency that is anchored in constitutional values.

There seems to be an intent for conflict resolution between communities, corporations, states, and all other aspects of society. But just our intent is not enough. We now need to sharpen the grammar and language of that intent so that we have a toolkit with which to practice that intent. This is the idea of uncommon ground – how can we allow children to do role playing and place them in situations where they understand the highest justice that they can achieve requires all of society? Can we all participate in this prevention reduction, creating a new public culture for future generations? Places like RWAs seem to be the right place to initiate this kind of curriculum building and public culture building. Another place ripe for this kind of work is where there are common pool resources that would allow people to benefit if everyone works together and cooperates in terms of use or extraction. We need to encourage the realisation, especially in the coming generations, that the less conflict there is in society, the more easily all of us succeed.