Role of Mediation in Family Law Disputes: Explained

The Author, Prerna Pahwa is 1st Year, BA.LLB at Vivekananda Insitute of Professional Studies,New Delhi. She is currently interning at LatestLaws.com.

INTRODUCTION

Marriage is said to be a lifetime commitment of both partners. But now, this phrase seems to be vague as the marriage is no longer a 'sacrosanct' or 'sacred' due to the prevailing laws regulating marriages and divorces. Along with this, marriage is not a lifetime commitment anymore.

According to Herbert Jacob, wives were subordinate to their husbands in the early nineteenth century. When a woman marries, she loses her maiden name and assumes her husband's identity. Her new name represented not only a new identity but also, in many ways, she was subservient to her husband. Both custom and law, for example, required a wife was free to live wherever their husband desired. In exchange, wives were expected to care for the home and comply with their husband's sexual demands. Finally, wives had no control over their husbands at the first property, even if they brought it into the marriage.

Now, the tables have changed, and the principle of equality replaces the principle of hierarchy. Even our constitution considers men and women equal.

The committee on the elimination of discrimination against women (CEDAW)[1] in its general recommendation brings into the knowledge of the committee regarding equal rights of women in the family and equal share in the family property must be globally recognized. The perception of people regarding marriage as a partnership normalizes the fact that it is okay to move out of a relationship if it is not fulfilling or satisfactory. Various movements regarding children's and fathers' rights lead to an increased number of family conflicts.

 In India, the family's foundation is built up with emotions, sentiments, love, affection, and expectations. Therefore, the chances of getting into conflict are high. Some people feel reluctant to get involved in the cumbersome and lengthy litigation process to solve their disputes and get a fruitful result. They can opt for Alternative Dispute Resolution- Mediation to resolve their disputes. This article is written to highlight the process of mediation in family law disputes.

WHAT IS MEDIATION?

Mediation is an Alternative dispute resolution in which the parties voluntarily come to a settlement with the assistance of the skills of negotiation and communication that the third party possesses and then puts a decision into writing, which becomes a contract.

HISTORICAL EMERGENCE OF MEDIATION

MEDIATION IN THE INDIA

In older times, it was common practice in our society to gather around and have a conversation to resolve conflicts between family members. When problems arose at the village level, they were frequently also sent to the panchayats, where a decision was made after hearing from both sides. Members of a family who are at odds can try to resolve their differences through discussion through the mediation process rather than going to court. The importance of maintaining peace and harmony within the family cannot be overstated.

MEDIATION IN THE UNITED STATES OF AMERICA

The concept of mediation was first started in California, the first place in the united states of America and the world that formally recognized mediation as a court service. O.J Coogler, an Atlanta lawyer, made a massive contribution in providing structure to the mediation process so that it can be easily replicated and taught. The process's structure enabled it to spread across America and abroad by the end of the 1980s. The development of a mediation structure and format enabled the process to be applied and adapted beyond divorce and family matters to a wide range of other dispute contexts, and the core of the model is still in use.

Speaking of America's vast experience, in the last decade, California mandated conciliation (here used as a synonym for mediation by Rau, Sherman, and Peppet) as a prerequisite to divorce trial for issues of child custody or visitation, and judges in some other states have imposed this requirement through court rule.

As a result, we can see that mediation was originally used to resolve family disputes because it met the requirements and needs of the time. And nowadays, according to the author, that only needs to be escalated, and California's practice demonstrates the viability of the idea in which family disputes are resolved through mediation.[2]

MEDIATION IN ISRAEL

Around 960 B.C, in ancient Israel, the king named Solomon stood as a mediator between two women. This dispute is the most well-known child battle in history. In this case, two women quarreled over a child’s custody. King Solomon intervened and proposed a solution that would benefit both women equally. Because of this unbiased approach to conflict resolution, a mediator is practically required in cases that are settled out of court.

Centuries later, this method was used to solve civil disputes among Israeli citizens and people of other nationalities. Community mediation centers were also established to settle disputes with Palestine after Israel declared statehood in 1948. Thus, mediation also helps to resolve political tensions between the two countries.

MEDIATION IN THE MIDDLE EAST

Many academics think that ancient Sumerian society was the first to use mediation. Between 4500 and 1900 B.C., in what is now the Middle East, Sumer was a Mesopotamian civilization.

Each matter was evaluated by the mashkim back then before going before the court. The mashkim also offered assistance to disputing parties so they could settle their differences independently. This position is comparable to that of a modern mediator. If the mashkim could not mediate a settlement between the parties, legal action was followed.

Moreover, sharia law was also used to support the role of mediator in conflicts. The rule of thumb states that the mediator must be unbiased and have no stake in the dispute.

The role of the mediator is only limited to resolving disputes by providing ideas and solutions to the conflicting party. The discretion of whether to accept the mediator’s decision or not lies with the conflicting party. Consider the life of Prophet Muhammad for other instances of mediation in the Middle East. Many scholars believe that tribes fighting over the reconstruction of the Ka'ba chose Prophet Muhammad as a mediator during his childhood. The Prophet calmed the raging storm over the tribes by proposing a solution that met the interests of both parties.[3]

MEDIATION IN CHINA

Confucius was a philosopher who held that respect for one another was more important than the superiority of the law and the conflicts that go along with it. Some academics think China firmly supported mediation throughout its rule (551 to 479 B.C.).

The philosopher suggested that ethical reconciliation was the most effective way to resolve disputes. Confucius maintained, however, that the disputing parties must voluntarily agree to this reconciliation.

The mediators would meet the parties separately and discuss their issues with them. These conflict resolution meetings used to be conducted regularly.

With the help of philosophers’ impact on the Chinese culture, mediation became one of the foremost methods to settle disputes in China for thousands of years. [4]

KINDS OF DISPUTE ARISING IN A FAMILY

Several legal disputes can arise pertaining to families. Some of those instances are as follows:

1. DIVORCE

Divorce is one of the most common family disputes, and the number of divorce cases has shown acceleration during covid times. There can be numerous circumstances in which the couple decided to discontinue their relationship like lack of understanding, communication gap, work-related issues, children-related issues, etc.

2. INHERITANCE

There is a procedure in place to guarantee that all beneficiaries are treated equitably when a loved one passes away and leaves an inheritance. However, there are instances in which a disagreement amongst family members may exist regarding inheritance. Everyone wants to avoid conflict and arguments during this challenging time, yet conflicts arise and should be appropriately handled. Precisely what is in dispute will determine how it is resolved. Family connections may suffer due to inheritance conflicts, which don't just increase the estate's problems.

3. POST-DIVORCE ISSUES

When the couple decides to break up, it creates disability in the family. After that, other issues arise, such as child custody, maintenance issues, etc. 

4. ELDER CARE

Sibling arguments over who would look after the elderly are common. Additionally, if one is looking after the parents, the others may believe that the parents favor that sibling, adding to the hostility.

MEDIATION IN THE CASES OF DOMESTIC VIOLENCE

Breaking up is not a good option always. Sometimes, all you need to do is to fill the communication gap to resolve the dispute. Lack of communication and ignorance will only augment the issue. When both the partners cannot solve the conflict, the third person, i.e. a mediator, will work as a negotiator and stop them from making impulsive decisions. The mediator must hear both sides very carefully, note every point, and come to an appropriate conclusion.

Mediation saves the parties from the lengthy process of mediation and saves money also. There are instances where parties cannot speak some information in court, but during the time of mediation, they can freely speak up their minds. So that's how mediation also provides a comfortable environment for the couple. Frequent court visits will affect the mental stability of the child. So, mediation will be a safer option for domestic violence cases.

According to the provisions of sections, 34(3)[5] and 34(4)[6] of the Special Marriage Act, 1954as well as sections 23(2) and 23(3) of the Hindu Marriage Act, 1950, the courts are required to make an effort to mediate a settlement between the parties who are seeking a divorce based on the specific facts and circumstances of each case.

Section 89 of the Civil Procedure Code[7] specifies the process for mediation that has been ordered by a court. The main objective behind introducing section 89 of the code of civil procedure is to make a peaceful and mutual settlement between the parties outside the courts. Now, the question arises that it is applied in civil matters then, what will happen to domestic violence cases under section 498A of the Indian penal code[8]? Also, domestic violence matters are non-compoundable in nature so, how is it possible to refer these cases to mediation?

In the case of Mohd. Mushtaq Ahmed V. State (2015) 3 AIR Kant R 363, when disagreements started after the birth of a girl child, the wife filed a divorce action against the husband along with an FIR under Section 498-A of the IPC. The Karnataka High Court requested mediation, and an amicable resolution was reached. In using its inherent authority to further the interests of justice, the court permitted the wife's decision to revoke the FIR she had initially filed.[9]

In the case of S.Thankikodi v. Ramuthayee AIR 1986 Madras 263, the court while dealing with the marital disputes under section 23(2) of the Hindu Marriage Act, 1955[10] to make an effort to mediate before making a decision. The court held that it could only undertake reconciliation if it thinks that there is a chance of saving the marriage and not otherwise. [11]

ROLE OF A LAWYER IN FAMILY MEDIATION

1. Mostly the parties are not aware of the process of mediation. So, the lawyers can guide them about the process to be followed in mediation.
2. The attorneys can act as their client's support network and work to see that he receives justice.
3. During the mediation process, when mediator will suggest multiple options to solve their dispute. Here, the lawyer can help the client choose the best choice for the client.
4. When a client has questions that the mediator is unable to answer, their attorney can clarify the matter for them and aid in avoiding misunderstandings.
5. The lawyer will also draft the documents which will be required for mediation.
6. The outcome of the mediation procedure might be either successful or unsuccessful. If the outcome is unfavorable, the party must begin the litigation from the point at which it was submitted to mediation, and an attorney is required for this. If it is successful, the client will be required to sign a settlement agreement, which they are reluctant to do without consulting an attorney.
7. The lawyer will also supervise if all the procedure of mediation is executed properly or not.

ROLE OF A MEDIATOR IN FAMILY MEDIATION

1. The mediator's primary responsibility is facilitating communication between the parties so that a resolution can be reached.
2. The mediator will be responsible for telling the parties about the mediation process, issues to be addressed, and the principles that may be considered.
3. The mediator has to listen carefully to every point of view of both parties before reaching any conclusion.
4. The mediator must handle the situation impartially. If the mediator doubts his ability to stay unbiased, then he should step down, and a new mediator must be appointed. Also, the mediator should maintain
5. The confidentiality of information is maintained in the process of mediation.

STEPS FOLLOWED DURING THE MEDIATION PROCESS IN A FAMILY LAW DISPUTES

When it comes to the mediation procedure for a family law dispute, specific processes are involved. Here are some of them:

PREPARATION

In this step, the mediator will meet the parties and make them aware of the procedure involved in the mediation process. Further, if any doubt arises, then the mediator will also address them. It is not required to have this conversation face-to-face; it can be conducted over the phone.

INTRODUCTION

The mediator in this process will put forward his opening statements and illuminate his role as a mediator. Then, the mediator will ask for consent from both the parties if they agree with the process or not? If both the parties agree, the mediation process happens as mentioned in the steps. The Court will impose certain financial penalties on the parties if they decline to submit the case for mediation.

STATEMENT OF THE PROBLEM

The mediator will give a chance to both parties so that they can address their issues in their opening statement. This is done with the objective of having a better understanding of the matter.

JOINT DISCUSSION

In this process, the mediator will seek additional information from the parties which will be relevant to the issue. The mediator will further decide which issue needs to be settled first.

PRIVATE DISCUSSION

Following the joint discussion of the issues, each party has the chance to speak privately with the mediator about their concerns and, if they so choose, with their attorneys. It is a crucial stage that aids in getting the parties ready for negotiations.

NEGOTIATION

The mediator will provide the solution to the issues, and the parties will negotiate until they reach a common point. If negotiation fails, then the matter will be referred to the court.

AGREEMENT

The parties are reassembled when the terms of the agreement are decided. The mediator would give the parties an oral confirmation of the settlement's conditions, which they would subsequently write down and sign. The agreement is enforceable in a court of law and has legal force. The mediator concludes by expressing gratitude to the parties for their involvement and cooperation during the mediation process.

ADVANTAGES ATTACHED TO MEDIATION IN FAMILY LAW DISPUTES[12]

There are certain advantages attached to mediation in family law disputes. Some of them are-

1. The issues are resolved amicably without having an impact on the relationships between the parties.
2. 'Justice delayed is justice denied is the most common acronym we come across almost every day. With the help of mediation, parties can get speedier justice and reduce the burden of the courts.
3.  It is adaptable and offers the parties the freedom to accept or reject the trial's verdict as they see fit.
4.  It prevents emotional problems that the family's connection and children might experience due to the protracted legal proceedings. It is also unquestionably a smart idea in situations where the parents must stay in contact with one another even after their divorce because of their child.
5. The parties have the choice to be transparent about the options they want to pursue because privacy and secrecy are maintained, which does not happen during court cases. By employing this technique, high-profile customers can keep the specifics of their problems out of the public's view.
6.  Due to the parties' increased level of control over the process compared to court trials, it also saves the parties money.
7. Family-related disputes become more contentious in court processes, but they can be discussed and resolved amicably in mediation. They become more convinced of the choice chosen as a result.
8. In the mediation process, the decision taken will always be according to the interest of the parties, whereas this is not true in the case of litigation.

DISADVANTAGES OF MEDIATION

Some of the disadvantages which are attached to the mediation are-

1. It is not possible to go for alternative dispute resolution- mediation in every scenario. It is important that both parties should be interested in this process.
2. Alternative dispute resolution- mediation involves flexibility, but there is the unavailability of certain rules and regulations to be followed in this process.
3. Sometimes, mediation can't be as effective as court proceedings because parties have the autonomy to choose their regulations and procedure for dispute settlement.
4. There is no assurance of settlement in mediation because not every dispute can be resolved successfully.
5. In mediation, it is not required to follow a case's verdict in other instances that are analogous. As a result, the process lacks assurance.

BENEFITS OF FAMILY MEDIATION FOR LAWYERS

The lawyer can benefit in a few ways from family mediation. As follows:

1. Sometimes, lawyers don’t have enough time as they are already burdened with so many cases, and if the case is referred to mediation. This will save a lot of time for lawyers.
2. If the client is satisfied with the mediator's decision, the lawyer's time will be saved, and he successfully solves a case.
3. If the client is satisfied with the lawyer's work, they may also refer their lawyer to other people, such as relatives or friends.
4. If the decision is in favor of the client. Then, the lawyer also gets paid well.

JUDICIAL DECISIONS

There are certain landmark judgments in which the court encourages parties to adopt for mediation, and some of these judgments are-

1. In the case of Dr. Jaya Sagade v. The State of Maharashtra SOM.PIL.104/2015-DB, a bench comprising of Hon’ble Chief Justice Mohit Shah and Justice RS Dalvi set aside the circular circulated by the state government that prohibited mediation and counseling in domestic violence cases without the court’s permission. The Court additionally ruled that a victim must be advised of her legal options and guided as to her rights under the Act and that she must not be under any pressure to resolve her claim or grievance.[13]
2. Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005) 6 SCC 344, is a landmark judgment in the history of the Indian Judiciary. The foundation for delivering prompt, just, and affordable justice has been established by these two instances, the first of which established amendments and the second of which provided a report on the viability of the amendments. In essence, this aims to lower the number of lawsuits submitted to the courts each year. Following the revisions made by the Act of 1999 and 2002, the case has been cited in many civil proceedings. Additionally, the model suggested for the trial court to use is simply implementable and does demonstrate "the bright light of proper and fast justice in the darkness of numerous cases." The guidelines stated in the model should be strictly adhered to since they are suitable for the Indian judicial system.[14]
3. In the case of Manas Acharya v. State & Anr CRL.M.C. 2090/2012, the court took a position that was even more supportive of mediation, emphasizing that any settlement reached through mediation or decision made by the mediator is legitimate and legal and that any decision made during the mediation process is binding on both parties.[15]
4. In the case of B. S Joshi & Ors v. State of Haryana & Anr AIR (2003) SC 1386, the court held that by using the authority granted to the court by Section 482 of the Criminal Procedure Code, the High Court may decide to halt the criminal proceedings. The Supreme Court received a petition for appeal on it. The wife filed an FIR against the husband but afterward claimed that there was no such issue in their relationship and that the FIR was submitted rashly and without thought. Therefore, the Supreme Court has ruled that courts should support or encourage mediation or reconciliation, particularly in matrimonial disputes of this nature.[16]
5. One of the most well-known mediation instances is Afcon Infrastructure Ltd. v. Varkey Construction Co. Pvt. Ltd 2010 (8) SCC 24. It is a historic decision in which the court ruled that outcomes or results of the mediation should be demonstrated to the court and that the court's justifications for choosing mediation should also be documented.[17]

SUGGESTIONS

The following suggestions regarding how to use mediation to settle marriage disputes successfully:

1. Mediators should be given proper training so that they can effectively contribute to the process of mediation.
2. In this, the lawyer plays a vital role, and in cases where mediation is possible, the lawyer should refer it for mediation rather than gaining any financial interest.
3. Lawyers, advocates, students, and judges should enthusiastically participate in mediation.
4. Law students must receive legal instruction in this mode of conflict settlement.
5. The non-governmental organization should promote mediation and spread awareness among the marginalized sections of society.

CONCLUSION

Now people slowly and steadily started to prefer alternative dispute resolution to solve disputes. Even many multinational companies started considering arbitration and mediation to solve disputes over litigation as it saves a lot of time and money. In family disputes, mediation plays a vital role as it helps to maintain the confidentiality of the information. Even if the matter is solved through the process of mediation, then, they only have to submit the report which didn’t even require intensive information related to the disputes. The mediator will try to negotiate and help the parties to reach a successful discussion, this will restrain the parties from take impulsive decisions. The judiciary already has piled up cases, if it is possible to solve disputes with the help of alternative dispute resolution. Then, we should surely consider it as it will help to reduce the burden of the courts.

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