6) Exclusion of the overriding effect of the Act in statutes such as the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the Sexual Harassment of Women at Workplace Act, 2013.
The Second Schedule is a list of statutes where the Act does not have an overriding effect on the mediation/conciliation that takes place under those statutes. This is a limitation. Legislation such as the above-mentioned deal with sensitive issues that would benefit from communication, reconciliation and preserving of relationships. Although these statutes provide for mediation/conciliation, they do not, in the same way as the Act does, prescribe and protect a process that espouses the core principles of confidentiality, voluntariness and self-determination. Parties are, therefore, denied the full potential of mediation. It is a paradox that in especially sensitive disputes such as these, the Act does not have an overriding effect on the mediation.
Maintenance and Welfare of Parents and Senior Citizens Act, 2007:
This Act addresses issues around the care of elderly parents and senior citizens. These family disputes would benefit from a transformative style of mediation which is focused on bringing greater understanding and transforming the relationships between the parties. The Maintenance and Welfare of Parents Act provides for the appointment of a conciliation officer by the government whose primary role is to be an investigating officer. Conciliation officers are generally not trained in mediation.
Family relationships are best protected with minimum exposure to the adversarial processes and maximum opportunities for reconciliation and building relationships.
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 (POSH Act)
Under the POSH Act, the Internal Complaints Committee (ICC) is the authorized body to resolve disputes. Women employees from the organization generally constitute the majority in the Committee, and this impacts neutrality. Additionally, members are generally not trained in understanding-based processes like mediation. They follow an investigative/inquisitorial process that does not necessarily permit parties to feel safe and engage in open and honest communication.
India is going through a period of transition. Young Indians from diverse backgrounds are coming into the workplace. Mistakes happen and parties need a safe space which is confidential and private so that they can share their pain and acknowledge shame and guilt. Many jurisdictions around the world offer mediation as a preferred forum of choice for sexual harassment cases and most victims choose mediation. It is a paradox that mediation under the Act does not have the overriding effect for these disputes.
Mediation has instructive value. I mediated a workplace dispute with allegations of sexual harassment in a British company based in India. The CEO, in the feedback stated,
“This was the first time that we had used external mediation to resolve a highly sensitive and emotive workplace dispute in our India office, but it will definitely be a process that we will embed in our people practices moving forward. The mediator was able to help the individuals concerned to better understand how their actions can be perceived by others. This meant that they experienced a collaborative and empowering rather than an adversarial resolution process.”
Source: Barandbench
