-Kislay Pandey[1]
Introduction
Abraham Lincoln said “discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time[2]”
Mediation works as an alternative by way of procedures established and is an attempt by the courts to resolve disputes through less adversarial way. It promotes cooperation between the parties while resolving the disputes. A well-qualified person known as mediator is appointed to facilitate discussions between the parties for finding their mutual interest and resolve the dispute.
Family Courts was established in 1984, under The Family Courts Act, 1984 (Act 66 of 1984) for acting in a humane approach for speedy resolution of family disputes. Section 9 of The Family Courts Act lays down the duty upon the judge of the family court to assist and persuade the parties for settlement. The Court even provides relevant time to the parties in any stage during the trial for settlement of disputes, if any kind of possibility is seen by the judge. Although promoting the settlement of disputes there exists a huge overburdened pendency of cases for settlement in the Family Courts.
Mediators are fully-trained, independent, guided and most importantly impartial third person in the disputes as same as the impartiality of the judges, who facilitates communication between the parties for resolution of the disputes. The Family Courts hears the matters relating to family affairs such as divorce, adoption, maintenance, disputes relate to will, property disputes and other family matters, where mediation can be a easy way to resolve the disputes, rather for going through litigation and imposing a decision by the court agreeable to both the parties.
The sole mediator is appointed if both the parties agree to the name of the mediator. In case the parties do not agree then a mediator is appointed from the panel of mediators or the parties nominate the name of mediators and one of the nominations is selected for appointment as the mediator of that dispute. The mediator does not have the power to compel the parties to participate[3] in mediation, also he/she cannot compel the parties to settle the disputes. He/she cannot impose resolution onto them, but it is the voluntary choice of the party to resolve the dispute and stick to the resolution of the mediation.
When parties are unable to resolve their dispute through discussion and negotiation, a logical next step is to seek the assistance of a third party to facilitate communication and the search for a solution[4]. This step promotes the parties in the dispute i.e. spouses to resolve dispute through mediation.
Marriage is a crucial element for the foundation and well-functioning of a society. This notion indicates the importance and numerous benefits to the couple associated with the institution of marriage within a family. However, nowadays the idea of marriage is doubted and questioned very often on regular basis. Nowadays marriage is belongingness for a short time and not a commitment for lifetime. Moreover, few people see marriage as a kind of partnership which evolve and in cases, comes to an end.
Over the last two decades, mediation of family law cases has become well-established in American courts[5]. The mediation of family disputes was started as an alternative through court sponsored programs for couples separating from each other from their marriage, has now been well established everywhere either through means of statutes formulated by the government or by the establishment of precedents by the courts.
Principles of Mediation
Mediation is a structured way of resolving the disputes by the intervention of neutral third party, the mediator. The principles of mediation are important to keep in mind for the effectiveness and integrity of the mediation. Every principle plays a vital role in ensuring the mediation process as fair, balanced and conducive to reaching a mutually acceptable agreement. The principles are:
- Voluntariness
It means that the parties involved in mediation should choose mediation by their own choice freely. They should not be compelled or forced to go for mediation. If they are forced for mediation they can withdraw at any stage and leave the mediation.
The mediators should obtain the explicit consent of the parties before entering in mediation. The parties should be informed for termination of the process at any time, if the process discourages the will of the party.
- Neutrality
It refers to the impartiality shown by the mediator in the whole mediation process. The mediator should not favor any party and facilitate the mediation process biasedly.They should disclose any potential of interest before the mediation. They should ensure equal participation of both the parties.
- Confidentiality
It refers to all the discussions, negotiations and information disclosed to be kept private during the process of mediation. These discussions should not be disclosed to any outsider without the explicit consent of the parties.
In Moti Ram Tr. LRS & Anr. v. Ashok Kumar & Anr.[6] it was held that, “Mediation proceedings are totally 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.”
- Self- Determination
It is the principle which establishes that the parties to the mediation have control over the outcome of it. They are self-responsible for reaching any decision rather than solutions imposed by the mediator.
Legal Framework and Support for Mediation
The Mediation Act 2023[7], provides legislative framework for mediation in India. It defines the role of mediator, who is appointed as the mediator by the parties. The mediator specifies that he/she should act as an independent, neutral and unbiased facilitator also he/she has obligation to guide the parties to reach an amicable settlement. He/ She ensures this by protecting the principles of mediation. The mediators have flexibility and party autonomy and they are not bound by procedural law.
It is a voluntary, inexpensive, and speedy way to resolve disputes. It is based on interest rather than rights, also it makes the parties as the key players. The mediator during the process of mediation facilitates discussions between the parties, help them identify issues, reduce misunderstanding, and explore common interest for settlement of disputes. Even this act provides and recognizes settlement agreement which can later be transformed as a decree and can be enforced by the court.
Benefits of Mediation in Resolving Disputes than of Litigation
Cost Effective: Mediation is less expensive than litigation. The cost of court fees, advocate fees can be saved by it which the prolonged court proceedings adds up. Mediation involves fewer sessions and lowers the overall costs.
Privacy: The proceedings of the court is visible to everyone and it can be distressful to the families dealing with personal matters. The proceedings of mediation are confidential and not disclosed without the consent of the parties. So it offers a more favorable approach for resolving disputes by keeping privacy.
Preservation of Relationships: Many disputes occur in the context of ongoing work relationships. Mediated settlements that address all parties’ interests often preserve working relationships in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a work relationship more amicable[8].
Control over Outcomes: The procedure of mediation is so designed that the outcomes are found by the mutual assent of the parties into it. The parties to mediation determine the outcome of the dispute by communicating with each other and finding their mutual interest.
Timely and convenient: Mediation can be scheduled and held in a matter of days, not weeks or months. This can be critical to intervening in the escalation of conflict and prevent unnecessary delays in finding mutually agreeable resolutions[9].
Family Disputes involving settlement by Mediation
As the prevalence of mediation is seen more nowadays, experts in law suggest that the power imbalance between the parties can hinder the process of mediation. This imbalance is found mostly in cases where one partner is abusive towards other. When in cases where domestic violence is involved determining the suitability of mediation is particularly critical and sensitive, it has been observed by lots of jurists.
Some believe that mediation is never an appropriate dispute resolution alternative when domestic violence has been identified[10].Others view is mediation provides procedural and substantive measures, where it is more feasible for a woman who suffered domestic violence to go for mediation than that of going for prolonged litigation. One view is that the choice of mediation should be left to the victim of the domestic violence, particularly the victim should be provided with meaningful guidance according to her circumstances whether mediation can enhance her measure of control over her future or not.
There are various kinds of disputes in family day by day and such disputes different for every family either big joint family or small nuclear family. The disputes which occur are listed below:
- Divorce and Separation issue
- Inheritance of Businesses, Property, etc.
- Child Custody and Parenting Plans
- Elder care and Guardianship
- Domestic Violence Issues
Cases Establishing Mediation as an Alternative to Litigation
In Salem Advocates Bar Association, Tamil Nadu v. Union of India[11], it was held that mediation works to alleviate the judiciary’s workload by decreasing the number of cases filed in court annually. This approach seeks to ensure a swift trial and the efficient administration of justice. A committee established by the court drafted various rules and regulations to facilitate the smooth operation of alternative dispute resolution methods.
In Afcons Infra Ltd. v. M/S Cherian Varkey Constructions[12] the Supreme Court clarified 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”. Also in this case it has been established that matters relating to trade, commerce and contracts, consumer disputes and even tortious liability can be mediated.
In K. Srinivas Rao v. D.A. Deepa[13], the Court held:
“44. … though offence 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 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 mediation process to get out of clutches of the law…. If there is 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.”
Conclusion
Mediation works as a highly effective alternative to litigation for legal dispute resolution in family matters. The principles such as voluntariness, neutrality, confidentiality, and self determination create an environment providing conditions fit for mediation to and amicable and constructive resolution of disputes. Mediation has significant benefits such as cost saving, time efficiency, privacy, control over the outcomes and preservation of relationships, which makes it best suited for sensitive nature of family disputes.
While it faces certain challenges such as the voluntary participation and potential power imbalances, but these can also be sorted out and make favorable through skillful intervention of experienced mediators. The increasing growth of mediation and its recognition within the legal framework highlights its importance as a favored approach for resolving disputes.
As families facing day to day complexities of modern life, mediation provides a flexible and compassionate approach for conflict resolution, which helps them attain sustainable agreements that foster harmony and stability. By adopting mediation, families moves forward with dignity and respect, resolving their disputes through mediation prioritizes their well-being and long-term relationships.
[1] 3rd Year Law Student at Central University of South Bihar
[2] https://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.html
[3] See J. McCrory, “Legal and Practical Issues in Divorce Mediation-An American Perspective,” in The Role of Mediation 144, 146. The Report of the Matrimonial Causes Procedure Committee (1985) HMSO ISBN 0 11 380004 5 (hereinafter referred to as the Booth Committee Report) has recommended against mandatory mediation. See para. 4.59.
[4] A. S. Rau, E. F. Sherman, S. R. Peppet, Mediation and Other Non-Binding ADR Processes. (Foundation Press, 2002) p. 1–5.
[5] See, e.g., Louise Phipps Senft and Cynthia A. Savage, ADR in the Courts: Progress and Possibilities, 108 Penn. St. L. Rev. 327,329-33 (2003) (describing the use of ADR in the courts as having “exploded” in the last twenty-seven years, particularly in court-annexed mediation programs); Rene L. Rimelspach, Mediating Family Disputes in a World with Domestic Violence: How to Devise a Safe and Effective Court-Connected Mediation Program, 17 Ohio St. J. on Disp. Resol. 95 (2001) (citing a National Center for State Courts study demonstrating the “growth and popularity” of mediation in the state courts, particularly in family law).
[6] Moti Ram Tr. LRS & Anr. v. Ashok Kumar & Anr, (2011) 1 SCC 466
[7] Act 32 of 2023
[8] https://osc.gov/Services/Pages/ADR-Advantages.aspx
[9] https://www.k-state.edu/hr/employee-relations/dispute-resolution/mediation/advantages.html
[10] See, e.g., Sarah Krieger, The Dangers of Mediation in Domestic Violence Cases, 8 Cardozo Women’s L.J. 235 (2002); Laurel Wheeler, Mandatory Family Mediation and Domestic Violence, 26 S. III. U. L.J. 559 (2002).
[11] Salem Advocates Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353
[12] Afcons Infra Ltd. v. M/S Cherian Varkey Constructions, 2010 (8) SCC 24
[13] K. Srinivas Rao v. D.A. Deepa, AIR 2013 SC 2176
