Mediation is a dynamic, structured, interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques.
A Voluntary process although sometimes statutes, rules, or court orders may require participation in mediation. Mediation is common in small claims courts, housing courts, family courts, and some criminal court programs and neighborhood justice centers.
INTRODUCTION:
In India, a family is considered as the basic unit of society and marriage as the most important relationships within family influencing morality and civilization Marriage holds a very sacred concept and is an ideal pre-requisite to bringing a family into its existence. Also, Marriage is a child-centric heterosexual institution in our society. However, if marriage as a unit breaks down, then adjustment of various relations is required rupturing the usual structure and peace of the family. So, the family laws and Courts mostly encourage in matrimonial disputes for reconciliation and settlement by amicable agreement instead of litigating in Courts.
Mediation is another of the methods of alternative dispute resolution (ADR) available to parties. Mediation is essentially a negotiation facilitated by a neutral third party. Unlike arbitration, which is a process of ADR somewhat similar to trial, mediation doesn’t involve decision making by the neutral third party. ADR procedures can be initiated by the parties or may be compelled by legislation, the courts, or contractual terms.
WHAT IS MEDIATION?
Mediation is a settlement process in which either parties or Courts appoint a mediator who helps both the parties on reaching an amicable solution or agreement.
Many legal bodies including legal dictionaries attempts to define mediation such as THE CAMBRIDGE (Dictionary), it defines mediation as, the process of talking of two separate persons or groups involved in a disagreement to try to help them to agree or find a solution to their problem.
Whereas the mediation is conducted by a third person who is generally alien to the dispute or so to say a neutral person this person is codified as Mediator.
Mediator is a neutral third person who helps parties to compromise by facilitating discussion between the parties: directly, by helping them in communication, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options to solve the dispute and emphasizing that it is the parties’ own responsibility for making decision which affects them; without imposing any terms of settlement on either party.
Mediator has two basic roles in every mediation:
- To facilitate the process of mediation
- To assist parties to reach on an amicable solution.
Coming to the evaluative role, a mediator has to help and guide the parties to evaluate the reality testing if divorce happens and to think and analyze the available amicable solutions.
Matters Relating to Family and Marital Disputes:
There are many reasons that would lead to a conflict
and later a dispute between a couple because of the family or children. So most
of the marital conflicts arise early in the marriage because when a couple is
just married they are not really tolerant of each other but when there are long
term marriages a couple is usually used to each other’s habits and are more
tolerant of each other. Another reason for a conflict turning into a dispute
could be when both husband and wife are into two different career paths and
when they do not have time for each other and they have different ambitions in
life.
According to some scholars it is also believed that children can also pose a
stress to the marriage while some believe that it can bring stability to a
married life but the fact that expenses do rise and it does bring a huge
breakthrough in a marriage. Another reason for a conflict is related to
household chores.
This challenge is mostly faced by females because they are assumed to handle
the age-old responsibility of taking care of the family and children, it is
more of a challenge for a female because when she is earning it becomes even
more difficult because she is entrusted with two responsibilities that is of
taking care of the house and the children and also to take care of the work and
the career they have persuade.
One of the major reasons in India for the marital conflict or even dispute to
arise is when a woman is married to a man and a man is married to a woman then
it is not just enough that they have married just each other but they actually
get married to each other’s family too. So, in India especially there is a lot
of involvement of each other’s family into the marital life which can sometimes
create a problem.
Another reason that can create a problem in the marital relations is dealing
with each other’s habits and addictions. For example, addiction to alcohol,
smoking, television and so on, or the habit of simply coming late back home.
These habits might not just give a way to a conflict but can cause disputes for
the same.
The major objective of this paper is to highlight what problem a woman faces or
how domestic violence is a stigma to the society but it is to see how our legal
system handles the above-mentioned problems with the tool called Mediation.
There are several provisions in the legislation that provides for conciliation and settlement before litigating in the Court.
- Section 89 of Civil Procedure of Code provides for alternative dispute resolution mechanism to be followed in the cases where there is a possibility of a settlement Mediation is one of such techniques prescribed in Section 89 for reaching an amicable solution. However, under this section consent of both parties is necessary and many times in matrimonial disputes one party is unwilling to go for mediation.
- In Section 23(2) and 23(3) of the Hindu Marriage Act, A court is directed to try reconciliation between the divorce-seeking parties, depending upon the nature and circumstance of a case. Same is laid down in Section 34(3) and 34(4) of the Special Marriage Act, making reconciliation as the option to be opted by Court at first instance in divorce cases.
- Family Courts Act obliged the Courts to try and bring about a settlement in the family disputes if possible.
- In 2003 under Civil Procedure-Mediation Rules, the concept of mandatory mediation was introduced for the first time. Mandatory mediation allows the Courts to send a case for mediation without both parties’ consent when there is an element of settlement and the relationship between parties is such that it is needed to be preserved.
Case laws providing significance of Mediation:
In 2013, Supreme Court in the case of K. Srinivas Rao vs D. A. Deepa opined that even in criminal non compoundable cases where parties want to settle should be sent for mediation, making it necessary for divorce cases to have mediation if there is a scope of the settlement between parties. It also ordered all mediation centers to have pre-litigation disks/clinics and publicize it amongst the masses so that matrimonial disputes can be solved without reaching the stage of the litigation.
Mohd. Mushtaq Ahmad vs. State the wife filed a divorce petition along with an FIR against the husband beneath Section 498A of IPC when disputes arose between the couple after birth of a female baby. The province judicature directed the parties to mediation beneath Section 89 of CPC. The matter was settled amicably through mediation when that the wife determined to quash the FIR. The Court allowed this by stating that the court in exercise of its inherent powers will quash the criminal proceedings or FIR or grievance in applicable cases so as to fulfill the ends of justice.
From the before-mentioned statutes, it is clearly visible that Indian laws emphasize preserving the marriage and has made it obligatory for Courts to try reconciliation and Settlement between the parties approaching the Courts for divorce. State despite claiming itself as a welfare state, neither have willpower nor resources to take care and responsibility of all broken relations after a divorce (for example, the responsibility of the best interests of a child after divorce). A divorce has severe consequences especially for women in this gender-biased and patriarchal society.
A mediator must be aware of all these hardships so that same can be conveyed to both the parties which might help them in analyzing their decision while thinking of the future. The impact on other relations like that of children, father, mother and siblings etc. should be helped to visualize by parties. Parents should be made conscious about the influence of divorce on the brain of a child. After informing parties of all the future consequences without pressurizing parties furthermore, a mediator should leave the final decision on the parties.
CONCLUSION:
Mediation is becoming a popular technique to be used by Family Courts to settle the matrimonial disputes especially that of divorces which really needs a settlement. But sometimes separation is the best solution for both the parties. Mediator should not force the other party for conciliation in such cases for other relations. Mediator while making a party agree on any decision should always consider the best interests of the parties no matter if sometimes it is separation.
However, for the parties, at times, separation may not look to be very easy. Although, the society is increasingly accepting the fact of failure in marriage consequences attached to a divorce call for a lot of attention and cannot be left to them. The first thing the counselor has to do in such situations is to help the parties to arrive at a decision to break the marriage. Sometimes, it may be easy and sometimes it may not be so easy. Having done so, the mediator then has to look to the terms and conditions of the divorce which may include the question of maintenance, custody of children, arrangement regarding property, etc.
Mediation leaves the decision power totally and strictly with the parties. The mediator does not decide what is “fair” or “right,” does not assess blame nor render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator acts as a catalyst between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will. The mediator will, however, seek concessions from each side during the mediation process.
