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Role of Mediation and Mediator in Divorce Proceedings in India By: Akanksha Yadav

August 4, 2018:

The Author, Akanksha Yadav is a 2nd Year student of of Dr. Ram Manohar Lohiya National Law University, Lucknow, UP. She is currently interning with LatestLaws.com.

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.[1]

Mediation in Divorce Cases
Mediation in Divorce Cases                                                             Pic Source: DivorceMediationOnline

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.[2]

Now comes the question 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.

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.[3]

The same functions Court asked to follow in  Mediator is someone who after the parties play a major role in settling the dispute. Therefore, in a whole mediation process, the role of a mediator is of great significance.

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,[4] 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,[5] making reconciliation as the option to be opted by Court at first instance in divorce cases.

Family Courts Act[6] obliged the Courts to try and bring about a settlement in the family disputes if possible.

In 2003 under Civil Procedure-Mediation Rules,[7] 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.

Family disputes including matrimonial cases are covered under mandatory mediation as in the eyes of law it is a relationship between the parties which must be preserved.

Mediation is the technique prevalent in divorce cases and there are various Mediation Centres created across the country to have a speedy disposal of cases.

In 2013, Supreme Court in the case of K. Srinivas Rao v D. A. Deepa[8] opined that even in criminal uncompoundable 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 centres to have pre-litigation disks/clinics and publicise it amongst the masses so that matrimonial disputes can be solved without reaching the stage of the litigation.

As earlier stated that after the parties if someone matters in mediation is a mediator.

Mediator has two basic roles in every mediation: To facilitate the process of mediation and To assist parties to reach on an amicable solution.[9]

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 analyse the available amicable solutions.

From the before-mentioned statutes, it is clearly visible that Indian laws emphasise 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 analysing 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 visualised 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.

really needs a settlement. 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.

[1] Sumedha Nagpal v State of Delhi, (2000) 9 SCC 745.

[2] G. V Rao v L.H.V. Prasad, (2000) 3 SCC 693.

[3] The Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003.

[4] The Hindu Marriage Act, 1955.

[5] The Special Marriage Act,1954.

[6] S. 9 The Family Courts Act, 1984.

[7] The Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003.

[8] (2013) 5 SCC 226.

[9] https://www.sci.gov.in/pdf/mediation/MT%20MANUAL%20OF%20INDIA.pdf

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