Mediate, don’t litigate? Analyzing the effectiveness of mediation in the farm laws dispute

Isha Sheth*

Abstract

Since the introduction of the ‘Farm Laws’ in September 2020, thousands of farmers have been protesting, mainly in the northern part of the country. The Government and the protesting farmers had failed to reach a consensus during the negotiations and hence the Supreme Court appointed a Committee in January 2021 to hear the grievances of the farmers. This article aims to provide a commentary on Mediation as a Dispute Resolution Mechanism in this dispute. It analyses the positions and the interests of both parties and whether the essential conditions required for Mediation to be successful have been complied with. Lastly, the article analyses whether Mediation was the appropriate solution in this dispute.

Background

The introduction of the ‘Farm Laws’ has led to widespread protests, mainly in the northern part of the country, leaving a significant portion of the farmers apprehensive of many provisions of the laws. The Farm Laws include ‘The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020’, ‘The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020’, and the amended ‘The Essential Commodities (Amendment) Act, 2020’.Thousands of farmers have been protesting and negotiations between the Government and the protesting farmers have failed to bring any consensus. These protests were marred by the fear of the spread of COVID-19 and blockages of highways which led to petitions being filed in the Supreme Court to stop the protests. In an attempt to gain the trust of the protesting farmers, the Supreme Court stayed the three farm laws and constituted a committee that would hear the grievances of the farmers, hoping that both the parties would come to the negotiating table in good faith. This article aims to look at the effectiveness of Mediation as a dispute resolution mechanism in this dispute, and not go into the constitutionality of the Acts in question.

The Stakeholders, Positions & Interests

In this dispute, the farmers are the main stakeholders as they are directly affected by the farm laws. Most of the protesting farmers are from the states of Punjab and Haryana since they are the biggest beneficiaries of the Minimum Support Price (“MSP”) system. These farmers have voiced their concerns collectively through Farmers’ Unions and political parties. Hence, the dispute is not merely between the farmers and the Government but involves the opinions of the political parties and various Farmers’ Unions as well. Concerns have also been raised that the protesting farmers are in fact middlemen and not small farmers because one of the laws affects middlemen.

The protesting farmers have, since the beginning of the protests demanded a complete rollback of the laws. The farmers fear that the new laws will leave them vulnerable to private traders and corporate forces and that the creation of private mandis will push the agriculture business towards private markets, affecting the wholesale market system. The farmers are also apprehensive that their lands may be grabbed by large corporations because of the ‘Contract Farming’ clause and will eventually push them into a debt trap. Small and marginal farmers, who perhaps have no alternatives to stubble burning, are apprehensive of the stringent punishments. Hence, the four main demands of the farmers are a complete rollback of the laws; making MSP and state procurement of crops a legal right; continuance of subsidised power to farmers for agricultural use; and exclusion of farmers from the Delhi Anti-Pollution Ordinance, which proposed penalties up to ₹1 crore.

The interests of the farmers and the Government are at opposite ends of the spectrum. While the Government believes that these laws can potentially remove the middlemen, and allow farmers to sell their produce in any part of the country, the farmers believe it may do more harm than good. The Government had proposed suspending the laws for 18 months, however, to the farmers, it came across as a mere tactic to stop the protests, and not a sincere promise to look into the effect of the laws on them. The Government also tried to assuage the farmers by providing a written assurance for the continuation of the MSP system. However, the farmers were not convinced and demanded a comprehensive Act on MSP, because a written assurance has no legal value. During the negotiations, the Centre acceded to the demand of continuing the current mechanism of providing subsidised power for agricultural use, which was one of the major demands of the farmers. However, other aspects of the talks have mostly resulted in a deadlock, with the farmers blaming the Government’s unwillingness to consider repealing the laws, and the Government blaming the farmers’ rigid stance on the repeal of the laws.

Essentials of a Successful Mediation and the Pitfalls that must be avoided

Mediation is a process of dispute resolution, where a neutral third party assists the parties in reaching an amicable solution. The parties come to the Mediation table and arrive at a solution of their own free will. While there is no exhaustive list that must be checked for Mediation to be successful, Mediation is very unlikely to be successful without an effective channel of communication. The Centre believes that the laws are beneficial to the farmers, they have also tried to assuage the farmers by providing them a written assurance of MSP and staying the laws. However, there is a visible communication gap in conveying the benefits of the Acts to the farmers. Even the Supreme Court had commented on the inability of the Centre to effectively handle the negotiations. Hence, for the Mediation to be successful, the Centre must effectively convey how it thinks the laws are going to be beneficial to the farmer.

Neutrality is one of the pillars on which Mediation stands. When parties are apprehensive that the Mediators are biased, they are unlikely to participate in the Mediation. When the Supreme Court appointed the members of the Mediation Panel, questions about the neutrality of the members of the committee had been raised. While some Farmers’ Unions had agreed to participate with the Mediation, some had outrightly rejected it because they believed it to be pro-government. Hence, the Supreme Court had to intervene and clarify that the Committee’s role is merely to hear the grievances of the parties impacted by the impugned legislation and make a report to the Court and that the Committee hadn’t been conferred adjudicatory powers. However, when parties are convinced that the Mediators are already in favor of the other side, they are unlikely to trust the process and go through with it. Furthermore, while the appointed members are experts on the subject matter of the laws in question, they are not Mediators. Hence, it was necessary to appoint people who are experienced with mediating such disputes and have the trust of both parties.

Mediation is a voluntary, client-driven process, where unless the parties themselves wish to get a settlement, it is unlikely to be fruitful. There is a lack of commitment to resolving the matter from both sides. Since the farmers were not the ones to approach the Court, they do not want to reach a middle ground. Their demands are for a complete repeal of the laws. On the other hand, while the Centre had expressed its willingness to amend certain aspects of the laws, it is unwilling to consider the repeal of the laws. Hence, it seems unlikely that Mediation can yield results especially after the failure of eleven rounds of talks and negotiations because both parties are negotiating over positions and not their interests. Both parties also seem to be blind to the risk of losing it all in the court proceedings. When parties are blind to the risk involved in litigation, Mediation is bound to fail. The attitudes of parties when their demands are at polar opposites are crucial to mediation. A lack of a reconciliatory approach is nothing short of a death knell.

Conclusion

On March 19, the Committee appointed by the Supreme Court submitted its report after seeking comments from the public and holding meetings with Farmers’ Unions, State Governments, Procurement Agencies, Professionals and Academicians, etc. As of now, the protests by the farmers, especially the ones in Delhi, are in full flow, and they are not willing to settle for anything less than a repeal of the three farm laws.

Attempting to amicably resolve the dispute was a welcome step by the Supreme Court, however, disputes such as the Ayodhya one have been a testament to the fact that when two different ideologies and various political parties are involved, disputes seldom get resolved without a judicial verdict. Even if negotiations reach an impasse, if both sides agree to listen to the other side and show a willingness to settle the dispute, they can be resolved with the help of Mediation. However, the willingness to compromise on certain things and resolve the matter has been absent since the very beginning. It is certainly laudable that Courts are now preferring Alternative Dispute Mechanisms over litigation, however, in addition to the challenges mentioned above, Mediation might not be the right answer in disputes that involve a significant question of law and livelihood of many.


*Isha Sheth is a student at Government Law College, Mumbai. She can be reached via her LinkedIn.

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