Abstract : India is the second most populous country in the world, and the wide population leads to extensive disputes and pending cases which are time consuming and also overburden the courts. Thus, this article talks about mediation, the process of alternate dispute resolution and its necessity in today’s society; its informal, time-saving and more flexible nature unlike litigation. Mediation can be empowering and helpful while privacy is also maintained, as it does not focus between right and wrong but on an amicable settlement, it offers new feasibility in the best interest of both the parties. The article highlights the importance of mediation in matrimonial disputes; that how sometimes a peaceful communication can save relationships or atleast preserve them for future. It defines the working process of mediation and, the challenges and responsibility of the mediator. It also talks about the strategies and management skills of the mediator; and states laws which favour mediation.
Keywords: flexible, time-saving, matrimonial disputes, settlement, communication and amicable.
Introduction to Mediation
The English word mediation arose from a Latin word ‘meditatum’, which means to ponder or in other words to think carefully before reaching a conclusion or decision. Mediation is said to be practised in India evenbefore Common Era existed, that is to say sincethe Vedic period. We also knowingly or unknowingly acts as a mediatorin our day to day life, such aswe compromise on a situation with our parents or partner just to avoid a certain argument, we put up with it, which is the self solution of the issue, or we find alternatives to resolve it; in the same way there are Mediators in our legal system, who listen to our conflicts with the other party and try to find a middle path to solve the conflict.
Mediation is accommodating and informal in nature, it is an easier way of negotiation; According to Section 16 of the Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2006, it is a process of alternate dispute resolution in which both the parties choose a common and impartial mediator, who talks to both the parties individually and together in addition to negotiating a peaceful and conflict-free settlement.The idea is to assist people to communicate in a rational and problem solving manner.
Process of Mediation
People have an option to choose mediation over litigation, and people primarily choose mediation as it a malleable process. A third party i.e. mediator is appointed by both the parties mutually. The mediator can be anyone as per both the parties’ preference; he/she can be an Alternate Dispute Lawyer or a retired judge. The mediator acts in an unbiased way and tries to find a rationale settlement but he/she cannot force a negotiation on either of the member and, if any party is not satisfied with the settlement, they can withdraw from the mediation process.
Firstly, the mediator is invited to take charge of the dispute.If he/she readily accepts the invite, then copies of the dispute related documents are sent to them and after reading the documents the mediator takes the proceedings forward. In case, the mediator feels that he is not well versed, and the dispute is complicated, he can withdraw; and if the mediator is in an amicable relationship with any of the party, he should not accept the invite. Once, both the parties approve him/her as a mediator, they shall take charge. Lastly, a mediator should remember that he is entrusted by both the parties, and should keep all the information confidential, as mediation is a private affair.Hence, most of the family law cases are settled through mediation.For example, cases related to child custody or divorce cases.
Family Law and Mediation
India is the second-most populous country in the world, and the wide population leads to extensive disputes. More than a hundred million cases are filed yearly in a state court.According to the 2019 statistics, approximately forty-three lakh cases are pending in the twenty-five High courts of our country.Nineteen judges for ten lakh people, this huge population makes courts insufficient to resolve every dispute.
Therefore, Alternate Dispute Resolution is proved to be useful.It is an easy way of resolving a dispute outside court, within less time. To resolve family disputes such as divorce or child custody cases, people primarily go for mediation;compared to litigation it is more feasible and time-saving. It also develops a more acceptable environment, and the privacy of the matter is also maintained.A mediator tries to understand both the parties and then present a settlement, which can be aversed by any party unlike in a courtroom, where the judge commends the order by seeing the facts and evidence, and both the parties, has to accept it.
In Matrimonial Disputes, marriage is considered sacred in Hindu law.In our society marriage is a building block of the family; both family and marriage are pillars of our society. People who live together may have disagreements from time to time and sometimes these small misunderstandings turn into major conflicts leading to separation. Thus, if a marriage falls apart in a Hindu family; it creates a lot of disturbances and unintended consequences especially when child custody is involved. Therefore, our laws and the courts mostly embolden them to seek a settlement through mediation or conciliation. The provisions of sections in Hindu Marriage Act, 1950 i.e. Section23 (2) and Section23 (3); and the provisions of sections in Special Marriage Act, 1954 i.e. Section 34(3) and Section 34(4) states that the courts should attempt to bring a settlement between both are parties applying for divorce, keeping in mind the circumstances and facts. Mediation not only saves time, but also helps both the parties to communicate peacefully; and helps them avoid high financial costs. It also removes the possibility of a negative feeling, which may force the party to opt for litigation.Mediator keeps in mind that the family dispute is not just another civil case, but a case involving emotions and feelings. Thus, he/she helps them to reach an amicable settlement.
Delhi Government Mediation and Conciliation Centres, and in Delhi High Court Mediation Centre, several matrimonial disputes are settled, the centres work pretty well, and have a considerable success rate. If information regarding these centres are spread throughout the nation, and if people get educated with the mediation process many families and relationships would benefit from it.
Family Law and Mediator’s Strategies
Mediation is considerably a shorter and less complex process than litigation, it is said that if mediation is endeavour before litigation it has a better outcome. As it is the beginning stage, both the parties are vulnerable and their statements are also very foggy and at this point, they are optimistic and eager to find a solution of their distress, so they are ready to make adjustments compromises.
When a party goes for litigation, they need to be more focused and fierce; the allegations are overstressed, and to incline judgement in their favour most of the time fake stories are told, and the facts are manipulated. This creates a lot of confusion and increase the distress between the parties.
Justice Manju Goel, a former judge of High Court Delhi, stated some strategies that can be adopted by a matrimonial counsellor or mediator:
- Examining the given facts
- Recognizing the actual cause of the dispute between the parties
- Studying the probability of the dispute and settlement
- Initiate an amicable settlement for both the parties
- Framing the solution in a way it is acceptable by law
Should it be Mandatory?
Mediation can be empowering and helpful as it would decrease the pressure on the courts and privacy is also maintainedand also it does not focus between right and wrong but on an amicable settlement.It offers new feasibility in the best interest of both the parties. Every matter cannot be dealt by courts, there are times when there is a communication gap between the partieswhich can be easily resolved by mediation centres as they have their own ways of handling such matters depending on their expertise. According to Section 9 of The Family Law Court, it is mandatory to endeavour family conflicts like divorce, child custody, etc., through mediation in the first place. A society also needs to understand that separation requires individual attention.Asa lot of emotions and feelings are invested, and it may not be easy for both the parties.
In Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. Pvt. Ltd. And Ors, it was precisely held by Supreme Court that matrimonial disputes are to be a ‘suitable’ categoryfor reference to mediation. Later, InK.Srinivas Rao v. D.A Deepa, a landmark verdict was given, where the court held that before applying for divorce in the court, the parties should go for some alternative dispute resolution processes like mediation. If the case falls under Section 489A of Indian Penal Code, the court directs the criminal courts not to deal with the complaints before it is dealt by a mediation centre, but if the matter is of rigorous cruelty criminalthen the matters can be dealt by the court without informing the mediation centres. It was also stated that mediation centres should set up their own desks to deal with these kinds of disputes.
Thus, our judicial system also favours mediation in matrimonial matters, as it provides the parties with an amicable settlement, which is in their best interest.
Although this comes with a challenge, and a huge responsibility; but if properly implemented it could help to unburden our courts and the parties, as mediation has certain perks over litigation as follows.
Advantages of Mediation over Litigation:
- The cost of the process is comparatively cheaper, and it also time-saving.
- The process is a private affair and is between the two parties and the mediator.
- It is a flexible process and a more peaceful process.
- The mediator cannot force his suggestions on either party.
- It is the parties’ choice that, if they want to cooperate or take the matter to the court.
Conclusion
Mediation does not focus on right or wrong, but on reaching a suitable settlement. It is a form of negotiation which is of a flexible nature and help people to deal with their conflicts outside the court. It is a neutral, peaceful and speedy process about which people are slowly learning and are also favouring Alternate Dispute Resolution methods. It also helps the court to focus more on more rigorous cases andreduce their burden. Therefore, society needs mediators in this field, who can handle these matters responsibly. Mediation also dominates other methods of dispute resolution, thus, it not only saves cost and time, but also removes the bitterness between both the parties, It also protects the relationship for future and settles for good.The techniques and strategies used by the mediator differs from case to case. Once the mediator figures out the actual cause of the dispute, it is not very difficult for him/her to arrive at a suitable settlement offer. It also gives many people hope to resolve their problems by filling the commutation gap and at times they may decide to give their relationship another chance.
AUTHOR: ANANYA SEMWAL,
RESEARCH BOARD MEMBER.
