Amrutha Santhosh Kumar
Mediation is a discretional process of alternate dispute resolution whereby an independent, neutral third party who plays the role of a mediator assists the parties of the dispute in reaching a settlement by means of negotiations. Since the solution recommended by the third party is willingly accepted or rejected by both the sides of parties involved in the dispute, this process is considered as a positive form of conciliation. In this article, we will be analysing the scope of Mediation in Divorce Proceedings and Marital disputes in India. Meditation helps in solving family disputes in a more amicable way whereby the parties talk out the problems and come to the best suitable solution for resolving the dispute. If both the parties mutually agree to resolve the conflict by means of the solution proposed and thereby conclude an agreement, then it can be incorporated into a Court Order. Mediation is one of the most sought-out instant remedy by the Family Courts in settling matrimonial disputes, especially that of divorce cases. The process of Mediation can be of two types
- Mediation through Courts
- Private Mediation – It is usually done by qualified mediators to resolve pre-litigation disputes and the disputes pending in court.
The role of the Mediator is immense in facilitating the process of Mediation. The Mediator by virtue of facilitating discussions between the parties helps the parties in reaching a compromise. The Mediator helps the parties in effective communication by assisting parties in identifying issues. This reduces the scope of misunderstandings and further helps in exploring areas of compromise through means of clarifying priorities. The process of Mediation emphasizes that it is the parties’ own responsibility for making decisions which affects them without imposing any terms of settlement on them. To be appointed as a Mediator, there is a certain qualification criteria. A trained mediator should have at least 15 years of experience in the legal profession. Even retired judges can be appointed as Mediators based on their experience. (Chodosh)
Consent of both the parties involved in the dispute is the main ideal for the institution of Mediation as a process of alternate dispute resolution. However, for most of the Divorce and marital dispute cases, parties are unwilling to go for the process of Mediation in the initial phase when the case is instituted. This is where the idea of Mandatory Mediation steps in. The concept of Mandatory Mediation was introduced for the first time under Civil Procedure-Mediation Rules. By virtue of the Mandatory Mediation procedure, the court can send both the parties of the dispute for the process of Mediation without their consent. The Courts emphasis the need for mandatory Mediation only in cases where it feels that the facts and circumstances of the case are such that in the eyes of law, the relationship between the parties which must be preserved. Mediation is also a flexible mode of conciliation since the parties can decide their suitable time for the process of Mediation as per their convenience. However, depending on the facts and circumstances of the Case and co-operation of the parties involved, the timespan taken for process of Mediation can vary. (Malhotra)
Legislative provisions related to the settlement of matrimonial dispute are Civil Procedure Code (1908), Hindu Marriage Act (1955), Special Marriage Act (1954), Legal Service Authority Act (1987) and Family Court Act (1984). Sections 23(2) and 23(3) of the Hindu Marriage Act (1955), Sections 34(3) and 34(4) of the Special Marriage Act (1954) emphasis on Mediation as the reconciliation option to be opted at first stance of divorce dispute cases. The Family Court Act also stresses on the role of the Courts in achieving conciliation. However, in case of certain marital disputes, Mediation as a mode of dispute resolution fails in achieving its goal. In such cases, Divorce is the only plausible remedy in achieving an amicable settlement between the parties taking into consideration their best interests. (Saxena)
Section 9 of the Family Court Act, makes is it mandatory to settle a matrimonial dispute in relation to divorces, child custody, maintenance, through the process of Mediation. The Family Courts often take the help of Counsellors for assisting in such cases. The parties are often referred to Mediation Centres. It is also significant to note that Mediation centres are encouraged to set up their own personal litigation clinics. This is done so that matrimonial disputes can be resolved without approaching the courts. Mediation is not only a cost-effective and speedy method of dispute resolution. It is also confidential in nature. This is definitely one of the added-on advantages that the parties benefit from since it does not prevent the parties from opening up on their personal matters due to fear of lack of privacy. Documents submitted by the parties are sealed, and any information furnished by the parties is treated confidentially. Any admission made during Mediation cannot be used in court proceedings of another case. Any information provided to the Mediator during the negotiation proceedings cannot be disclosed to the other party unless the other party specifically permits the Mediator to do so. Mediation thereby helps in diminishing the acrimony and estranged relationships resulting from litigation. Similarly, a mediator cannot be called to testify as a witness for any other case proceedings. (Malhotra)
It was in the judgement of K. Srinivas Rao v. D. A. Deepa that the Supreme Court issued directions to all courts of the country that deal with matrimonial disputes to settle them at first instance through the process of Mediation. Apart from the role of Courts in issuing guidelines via judgements and emphasizing on the need for Mediation, the legislature has also been supportive of the institution of Mediation centres both at local and regional levels. However, despite the initiatives taken at the upfront, the success rate of Mediation in Divorce and Matrimonial cases is very low. Mediation is only intended to complement the judicial process and not replace it. There is a need for more mediators in this field who can bring empathy and sensitivity to the handling of the disputes and thereby help the parties in conflict to find solutions to the problem. Despite the low success rate ratio, Mediation still provides a glimmer of hope. The apprehensions pertaining to Mediation may dissipate over time since the expertise of Mediation in India is growing.
https://lawcommissionofindia.nic.in/adr_conf/chodosh4.pdf
https://www.iafl.com/media/1129/alternative_dispute_resolution_in_indian_family_law.pdf
http://www.legalservicesindia.com/article/1424/Mediation-In-Divorce.html
Modo Resolutio 