Mediation and Conciliation in Family Dispute Cases
Author: Shivalika Verma
Student, BVDU, New Law College, Pune
Family is the most important social institution. We are dependent on our families, both for financial and emotional stability. From the transition of joint families to nuclear families, the ideas and beliefs of family members have changed drastically; and in recent times, family disputes have escalated. With the Indian judicial system already burdened with the pressure of pending family dispute cases, there is an urgent need to resolve such matters through alternate dispute resolution methods, beyond the scope of litigation.
‘Discourage litigation; persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.’ ~ Abraham Lincoln
As rightly quoted by Sir Abraham Lincoln, the conventional litigation recourse demands huge investments in terms of money and time. Thus we need better resolution methods which facilitate a speedy justice delivery system. The emergence of Alternate Dispute Resolution (ADR) methods one being, mediation has aided in helping the judiciary to cope with the pending cases and to evolve a speedy justice delivery mechanism. Apart from a speedy trial, there are numerous advantages of using this process, especially in the matters of family law disputes. Common examples when family mediation is held are: when parties are separating or when parties are already separated but want to negotiate terms of meeting their needs and interests.
What is Mediation?
Mediation is a settlement process in which either parties or Courts engage a mediator who acts as a no-bias third party and helps both the parties to reach a harmonious solution. In the case of, K. Srinivas Rao vs D.A. Deepa, the Supreme Court of India made it necessary for divorce cases to go through the process of mediation if there is any scope of settlement between the parties.
Mediation is relatively less complex than the regular court proceedings; it helps the clients in effectively solving their disputes. This provides them with an open forum for discussion between the parties where both the parties are in a win-win situation as mediation majorly focuses on providing them with equal chances of gaining. There exists a mutual agreement between parties towards reaching a solution that is justifiable to both. Mediation furnishes the best platform in divorce cases as it assists the parties in arriving at a settlement peacefully without ruining the interests of either party. This process usually takes place at the mediator’s offices, or mediation centres or any place agreed by the parties.
Mediation and Conciliation:
The International Labour Organization gave the difference between conciliation and mediation, adopted by the Advisory, Conciliation and Arbitration Service which reads as follows: “Mediation may be regarded as a halfway house between conciliation and arbitration. The role of the conciliator is to assist the parties to reach their own negotiated settlement, and he may make suggestions as appropriate. The mediator proceeds by way of conciliation but, in addition, is prepared and expected to make his formal proposals or recommendations which may be accepted.”
In the case of B.S.Krishna Murthy & Anr vs B.S.Nagaraj & Ors, Justice Markanday Katju said, ‘In our opinion, the lawyers should advise their clients to try for mediation for resolving the disputes, especially where relationships, like family, business, are involved. Otherwise, the litigation drags on for years and decades often ruining both the parties. Hence, the lawyers, as well as litigants, should follow Mahatma Gandhi’s advice in the matter and try for arbitration/mediation. This is also the purpose of Section 89 of the Code of Civil Procedure.’
Mediation promotes the interest of the entire family, including those of the children:
Mediation not only helps to save the matrimonial bond, but it also tries to act their best for the interest of children. In the case of Gaurav Nagpal vs Sumedha Nagpal, the Supreme Court remarked: ‘It is a very disturbing phenomenon that large numbers of cases are flooding the courts relating to divorce or judicial separation. The provisions relating to divorce in HMA categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide an incentive to persons to seek a divorce, unless the marriage has irretrievably broken. Efforts should be to bring about conciliation to bridge the communication gap which leads to such undesirable proceedings. People rushing to courts for breaking up of marriages should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving of marriage and not breaking it. As noted above it is more important in cases where the children bear the brunt of dissolution of marriage.’
Procedure for Mediation:
There are two manners in which the mediation can be initiated:
Parties can voluntarily refer their case to private mediation.
The court can refer the parties to mediation. (Section 89 of the Civil Procedure Code)
The functional stages involved in mediation:
Introduction and the Opening statement: The process begins with an introduction by the mediator wherein he abridges the whole process and the rules.
Joint session: Both the parties are given a chance to express their viewpoints and make their statements.
Separate session: Mediator conducts a separate session trying to suggest solutions and solving issues.
Closing: When all the points of agreement or disagreement have been discussed, the mediator gives the final statement ensuring the welfare of both the parties.
The process of mediation is non-binding in nature. The mediator does not impose his decision on the parties, but he/she majorly focuses on presenting a solution which is viable to both the parties.
Qualifications of the mediators/conciliators:
Since there is no statute controlling and managing the mediation process and thus the mediation centres have turned up with their own rules regarding qualification of mediators. According to Rule 3 of the Mediation and Conciliation Rules, 2004, the High Court and the District & Sessions Judge can prepare panels for appointment of a mediator. Rule 4 provides for the qualifications of the mediators/ conciliators, and they can be any of the following:
(a) (i) Retired Judges of the Supreme Court of India;
(ii) Retired Judges of the High Courts
(iii) Retired District & Sessions Judges or retired officers of Delhi Higher Judicial Service;
(iv) District & Sessions Judges or Officer of Higher Judicial Service
(b) Legal practitioners with at least ten years of experience of practice in the Supreme Court or the High Court or the District Courts
(c) Experts or other professionals with at least fifteen years of experience
(d) Persons who are experts in mediation/conciliation
“It is the spirit and not the form of law that keeps the justice alive.”~ L.J. Earl Warren
The whole purpose of people seeking help from the court is they want justice and this method of mediation has that amplitude to do so in a very short time. But there is still some sort of reluctance seen in the parties to undergo this process. It must be highlighted that this is the only process which takes into the account of parties’ emotional situations. Awareness in regards to the advantages of mediation must be made so that more people take the help of it.
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.