EFFICACY OF MEDIATION IN FAMILY DISPUTE CASES
Updated: Sep 27, 2021
Author: Abhishek Chatterjee, V year of B.B.A.,LL.B.(Hons.) from Adamas University, Kolkata
Co-author: Rinki Saha, V year of B.A.,LL.B.(Hons.) from Adamas University, Kolkata
Co-author: Shreya Chatterjee, V year of B.A.,LL.B.(Hons.) from Adamas University, Kolkata
Mediation is one of the Alternative Dispute Resolutions which is a much more effective remedy as it is non-forceable and also consensual. This method is like a therapy that not only saves the time of the parties but also tries to settle the dispute amicably with minimum cost. Our Indian Judiciary is also giving much importance to this method. In this paper, the authors are trying to portray the advantage of mediation in family dispute cases specifically and also when it can face limitations while doing the settlement between the parties.
Keywords: Mediation, Family Dispute, Alternative Dispute Resolution, Judiciary, Therapy
The term ‘Mediation’ is notable in International Law, it is a specialized term in International Law. Mediation is the most frequently adopted Alternative Dispute Resolution technique. Mediation is another method of ADR available to parties.[i] It mulls over the arrangements and intercession of a characteristic third individual who assists the parties with arriving at an arranged settlement. The mediator doesn't have the jurisdiction to pronounce or force any award. It is a directed classified cycle and without bias to the lawful rights and cures of the parties.
Mediation is another method of ADR so the main object of the ADR is the resolution of a dispute without the need for legislation. The satisfaction thing in this ADR is not only for a final decision but also the fairness of the process. Most ADR techniques are entered into voluntarily.[ii]
Those who cannot hire an Advocate because of their financial condition ADR helps them to reach their solution. Mediation includes the expert who goes about as a facilitator for the parties to assist them with agreeing. This is very cost-effective than arbitration and litigation, it is confidential, it is extremely inexpensive than arbitration and litigation, it happens over a relatively short space of time. In India, mediation is governed by the Arbitration and Conciliation Act of 1996 and the Code of Civil Procedure of 1908(CPC). According to Section 30 of the Arbitration and Conciliation Act[iii], an “Arbitral Tribunal may use mediation to foster dispute settlement.” According to Section 89 of the Civil Procedure Code, “courts may refer the parties for mediation if it appears that there is an element of the settlement.”
MEDIATION IN FAMILY DISPUTE
Mediation is the best elective method for family and matrimonial issues. This strategy is extremely helpful if centres around the non-coercive and consensual cycle to determine the question between the parties, mediation excused the likelihood and probability of a captured relationship, therefore, the course of mediation has been broadly acknowledged for settling family debate in India as well as in numerous nations like US, Canada, England.[iv]
The legal aspect relating to resolution of the family dispute through mediation it has given under Section 5 of the Family Court Act of 1984[v] provided the provision for the Government to require the affiliation of social government assistance associations to hold the family court to show up at a settlement in a family matter. Section 9 of the Family Court Act[vi] requires matrimonial disputes involving maintenance, child custody, divorces, and other issues to be resolved through mediation. It further stipulates that with their cooperation, the parties should be referred to a mediation facility. If necessary, the family court may seek the assistance of counsellors in resolving disagreements. To minimise further or needless delay in the matter, mediation centres should set a time limit for resolving the conflict disagreement.
Mediation in domestic violation: In a long time since the security of women from the Domestic Violence Act has come into power around 10,00,000 Domestic Violence cases have been enlisted in India. Since day-by-day Domestic Violence increases and it is a heavy burden for the court. This issue is crucial in the Indian judicial system, where there is a congestion of approximately 27 million unresolved cases, the majority of which are related to divorce.[vii]
Domestic Violence is the most serious offence the victim wants speedy proceeding but when the party goes to litigation it takes a huge time, and the victim's mental setup gets herm. Due to the difficulty in obtaining timely justice, alternative dispute resolution processes such as mediation have grown in favour due to their timeliness in resolving disagreements. These forums provided a platform for parties seeking relief without circular litigation, thereby taking the proceedings outside of the courtroom.
Mediation in the Divorce case: The Mediator serves as a medium to assist the parties in resolving their divorce concerns. The initial consultation with the mediator took place in the mediation chamber. Mediator explains all the procedures for both the parties and they sign the mediation agreement. The mediator does not make a decision or rule on the problem in the same way that a judge does; it is up to the parties to reach an agreement.
When the parties have arrived at a peaceful settlement, either the mediation will suffocate the settlement arrangement or one of the lawyers addressing the gatherings. When both parties are represented by the attorney each party's respective attorney reviews the agreement before they sign the agreement. The mediator will present the settlement to the court, which will be incorporated into the final divorce decree.[viii]
In Jagraj vs. Bir Pal Kaur,[ix] Supreme Court held that “the intention of the parliament behind enacting section 23 of Hindu Marriage Act, 1955 was to preserve the sanctity of marriage. Therefore, every step towards the reconciliation of parties has to be carried out by the courts.”
JUDICIAL APPROACH TOWARDS MEDIATION IN FAMILY DISPUTE AREAS
1. In Mohd. Mushtaq Ahmed vs State,[x]The Court says that “The court in the exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases to meet the ends of justice. In this case following arguments between the couple after the birth of a girl child, the wife filed a divorce petition along with an FIR under Section 498 of the IPC against the husband. The Karnataka High Court ordered the parties to participate in mediation under Section 89 of the CPC. The wife elected to have the FIR dismissed after the disagreement was settled quietly through mediation.”In K. Srinivas Rao vs. D.A. Deepa,[xi]the Supreme Court held that: “44. … Though offences punishable under Section 498-A IPC are not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of the settlement, it should direct the parties to explore the possibility of settlement through mediation…. The Judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using the mediation process to get out of the clutches of the lawf there is a settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest.”
2. In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd,[xii] the Apex Court explained that “even when a case is referred to a mediator the court retains its control and jurisdiction over the matter and the mediation settlement will have to be placed before the court for recording the settlement and disposal”.
3. In G.V.Rao vs. L.H.V. Prasad,[xiii]the court held that “marriage is a child-centred hetero establishment in our general public. Notwithstanding, if marriage as a unit is separate, the changes of different relations are required, bursting the standard design and tranquillity of the family. Thus, the family laws and courts, for the most part, empower wedding questions for compromise and settlement by friendly arrangement rather than a suit.”
ADVANTAGES AND LIMITATIONS OF MEDIATION IN FAMILY DISPUTES
Mediation is a dispute resolution mechanism that has some advantages. Some of them are as follows:
1. While it is true that in some situations, depending on the courts to resolve disagreements is necessary, many cases can be successfully addressed through Family Mediation. When you choose court proceedings, your family condition becomes public knowledge. Family law mediators provide a private and confidential setting in which you can make decisions and plan for the future of your family. In Moti Ram Tr.Lrs. & Anr. vs. Ashok Kumar &Anr,[xiv]it was held that “mediation proceedings are confidential proceedings. When the mediator is required to send the report of successful proceedings to the court, he doesn’t require sending what transpired during the proceedings. In case the mediation was unsuccessful, he only needs to send the report stating Mediation has been unsuccessful”
2. With the help of family law mediators, the parties are enabled and urged to introduce their issues to one another up close and personal. Prepared mediators are phenomenal at managing awkward nature between parties in a sensitive, however direct way. Here the mediator’s goal is to find a long-lasting peace between the parties and to have an amicable settlement in their family arena.
3. Through family mediation, the parties diminish the costs and stress of court procedures and lessen the passionate cost of contention. In divorce mediation and other family mediations, the members benefit extraordinarily by protecting the chance of continuous connections later on, if they so decide. It permits youngsters to see their parents participating in any event when they can't help contradicting one another. Mediation usually prompts joint care, helping the youngsters with a future with the two guardians.
Apart from advantages, mediation faces some limitations also in family disputes. They are as follows
1. Mediation can prompt wastage of time, exertion, and cash if the dealings come up short. On the off chance that the mediator is unpracticed, it tends to be deficient or unduly positive for one mate. A savvy companion might even shroud resources/pay which can prompt disappointment of uncovering unaccounted stowed monetary resources and may leave them more vulnerable mate poverty-stricken. If one life partner is ruling and the other complaint, the settlement might be uneven.
2. It is profoundly uncommon for the whole reality of an issue to be uncovered during mediation. Be that as it may, in a court conflict, attorneys can confirm and bring spectators, which is beyond the realm of imagination in intervention. Besides, courts are set up so that the two parties in a circumstance are dealt with reasonably. While this is likewise an objective of mediation, fair treatment can be hard to accomplish in specific conditions.
3. One more shortcoming of mediation is that there are no clear guidelines for the cycle. If you don't use a skilled arbiter, the lack of explicit rules can frequently result in a stalemate. Mediation is also dependent on the two parties working together. If the parties linked with mediation do not think again about it, the cycle may end in disappointment.
Mediation is the cornerstone in mitigating family dispute problems not only in domestic violence cases and divorce cases but also in estate problems or any other disputes in the family area. And it is now high time where we need a legal document like an Act that will only deal with the mediation process. And apart from this, as mediation is a very new concept among the people in India, people need to be aware of this dispute resolution and make its full use in this era where we have a million cases left pending in Indian courts. Therefore, we want to conclude our paper by saying that as the family is an integral and most important part of a society and the dispute which arises in the family make break the integrity, so it is very much important to resolve the disputes in a very amicable way and cost-effective manner so that everyone can live a peaceful life.
[i] Yash@2410, Mediation in Family and Matrimonial Disputes, Legal Service India E-Journal
[ii] Avtar Singh, Law of Arbitration and Conciliation, page 583, (EBC 1981).
[iii]The Arbitration and Conciliation Act, 1996, § 30, No. 26, Acts of Parliament, 1996 (India).
[iv] Saba, Mediation of Matrimonial dispute in India- Domestic Violence cases: to mediate or not to mediate, SCC Online, (2018).
[v]The Family Courts Act, 1984, § 5, No. 66, Acts of Parliament, 1984 (India).
[vi]The Family Courts Act, 1984, § 5, No. 66, Acts of Parliament, 1984 (India).
[vii] Sandeep Bhalothia, Mediation in Domestic Violence, Mediate.com India, (2017).
[viii] Bruce Pravda, Why Couples are Choosing Mediation in Divorce Case, Mediate.com, (2013).
[ix]S.L.P. (Civil) No. 9706 OF 2006
[x](2015) 3 AIR Kant R 363
[xi](2013) 5 SCC 226, 241-242
[xii](2010) 8 SCC 24
[xiii]S.L.P. (Crl.) No. 3164 of 1999
[xiv](2011) 1 SCC 466.