“A dispute is a problem to be solved, rather than a combat to be won”
Despite our elaborate hierarchy of courts, the number of cases pending in courts in India is outrageous. Thus, it is an opportune time to turn our sights to alternate systems of dispute resolution which are time efficient and less expensive when compared to the conventional system of adjudication through courts.
Further, some methods of dispute resolution are more suitable than regular adjudication for specific problems. An appropriate example is employment of mediation as a method of resolving commercial disputes, Intellectual property infringement cases, labour management dispute and several other matters, most importantly in family and marital issues. Such issues are sensitive in nature and involve not only the problem at large, but also emotional elements. They cannot be dealt with objectively, based on facts alone, like a property or financial issue. Sentiments, emotions, social factors, responsibilities, personal duties and the mindset of the parties are significant considerations in mediation.
Thus, the mediator must ensure that he protects the interests of both parties as much as possible to create a win-win situation. The role of the mediator is not a judge or an arbitrator. His role is to bring a peaceful settlement between both parties. Thus, it is suitable to employ mediation to resolve matrimonial and family disputes. A few of the benefits are cost efficiency, client satisfaction and complete confidentiality.
THE NECESSITY OF MEDIATION FOR MATRIMONIAL DISPUTES:
Marriage earlier was considered as sacred and is the commitment between the spouse to stand by the side of each other in every situation. Black’s Law Dictionary defines divorce as “the legal separation of man and wife. While this definition is simple and short, the definition of marriage is much more complex. Brittanica – Webster defines Marriage as “the institution whereby a man and a woman are joined in a special social and legal relationship for the purpose of making a home and raising a family.”
Thus marriage is not just a legal union, but a social, emotional and sometimes religious bond between two individuals. In modern era, matrimonial disputes arise due to lack of communication and difference of opinions, therefore the need for judicial scrutiny was required. Prior to the establishment of laws relating to domestic relations, the disputes among the parties were solved by themselves or by getting an advice from their close ones. Although courts are equipped to deal with legal dissolution of marriage, emotions and other considerations are seen as irrelevant. It is also important to deal with the emotional and social issues affecting the marriage in order to fully resolve the dispute. Prolonging the cases trying to settle quarrels between spouses deepens emotional scars and has a huge impact on both the parties and the children of the couple. Often the interest of children and their extended relatives are ignored in this process.
Divorce between the parties is a painful event and a delicate matter and so it should be solved carefully and sensitively by mutually settling the complexities between parties which cannot be done in an open court proceedings. Hence, the need for Alternative Dispute Resolution prior to the litigation proceedings arose. Mediation in matrimonial dispute is proven to be the best form of dispute solving mechanism with many advantages attached to it, the main being speedy disposal and cost efficient.
MEDIATION AS A METHOD OF ALTERNATIVE DISPUTE RESOLUTION:
Mediation is the process where the parties reach out for settlement of the disputes arising between them. It is considered to be the best viable option even by the judiciary as mediation involves less procedure and the parties are free to consensually and collaboratively arrive at a solution. Mediation is a private and confidential process and hence it is the finest method for matrimonial disputes.
Mediation like other forms of alternatives has its own advantage and disadvantages. The benefits of adopting this method for marital affairs includes cost efficient, consensual solution, freedom of the parties to dismiss the proceedings anytime if they feel it is not working out, informal procedure, speedy justice, impartiality, safeguards family relationships and protects children from facing the traumatic process. However, the use of mediation in settling disputes has smaller extent of disadvantages when compared to the advantages.
LEGISLATION GOVERNING MEDIATION IN INDIA:
The first legislation which was enforced to regulate the process of Alternative dispute mechanism was the Arbitration and Conciliation Act, 1996. Mediation is all about the negotiation between the parties with the assistance of third party called Mediator. There is no compulsion that the parties should adhere to the decision of the mediator. Mediator has no decision making power which is binding on the parties.
A uniform legislation governing the mediation proceedings was the need of the hour. Hence, the Mediation and Conciliation Rules were formulated in 2004 by the Delhi High Court, exercising the power given under Part X of the Code of Civil Procedure, 1908 (5 of 1908) and clause (d) of sub-section (2) of Section 89.
CHALLENGES IN SOLVING MATRIMONIAL DISPUTES THROUGH MEDIATION
Through mediation, all angles of the dispute can be analysed by the mediator by taking relevant considerations into account. However, there are a few challenges that exist in solving matrimonial disputes through mediation. They are as follows,
This is the foremost problem in resolving disputes by way of mediation. Most people who criticize mediation, do not realise how effective it is to resolve disputes. They say that mediation should not be used for serious matters like matrimonial issues or cases of domestic violence as it undermines the seriousness of the issue. Critics consider mediation to be ineffective as the wrongdoer escapes without being punished through the State’s orderly penal apparatus. But they do not understand that this approach is introduced mainly to untangle and elucidate the issues between the parties willing to arrive at an amicable settlement.
Despite this, mediation has been encouraged by the Judiciary to resolve matrimonial disputes, even in criminal cases. In Mohd. Mushtaq Ahmad v. State, the wife filed a divorce petition alongside an FIR against the husband under Section 498A, IPC. The Karnataka High Court directed the parties to mediation. The matter was settled amicably through mediation after which the wife decided to quash the FIR. The Court allowed this stating, “The court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice”, thus demonstrating the willingness of courts to direct cases towards mediation. In Gurudath K. v. State of Karnataka, the court stated that even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably, Section 320 would not be a bar to the exercise of power of quashing of FIR or criminal complaint in respect of such offences. Thus, the Court allowed for the offences to be compounded on coming to the conclusion that the wife was under no threat or coercion for the same.
However, in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., 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. Even when the matter has been referred to mediation, the Court will continue to exercise control over it to an extent.
LACK OF QUALIFIED MEDIATORS:
The mediator has a pivotal role and must be trained appropriately to understand the best way to go about the dispute. He must facilitate the process of mediation as well as assist the parties to arrive at a settlement. The role of the mediator is not to give advice or adjudicate the case. The mediator must only assist the parties. If the parties reach an impasse, the mediator must know how to tackle it effectively. Mediation is an art and especially for cases involving marital disputes, a skilled mediator is a necessity.
LACK OF AWARENESS:
One of the greatest challenges is the complete lack of awareness. Mediation is a viable tool to resolve matrimonial issues. However, the most recognised method is simply approaching the court. Before filing a suit for divorce, the advocates representing the parties must inform them of the option to use mediation.
At the local level, the Panchayat system is in operation which is a form of dispute resolution. But awareness for mediation for matrimonial issues specifically must be given to all people.
There are numerous other challenges which exist in the realm of family mediation. They include choosing the right mediator, neutrality etc. Psychological issues also exist in the mediation process, especially in family matters. Social science scholars have thoroughly studied for a long time now the psychological dimensions of the process of negotiations. People are not always capable of recognizing and processing the facts necessary for giving rational responses to social challenges and, therefore, they make assessments and guesses by applying their own prejudices to the experienced stimulus. These assessments and guesses are based on their own experiences and this might be in contravention of the actual incident which took place. Sometimes, negotiations fail because of the excessive confidence of one party in its own capability to predict the emotional reactions of the other party and sometimes it fails because of the involuntary participation of one party due to the family pressure. As discussed earlier, Mediation is a private and confidential proceeding and in order to solve the issues between them parties must be transparent and not hesitant to discuss the disputes.
INTERNATIONAL FAMILY MEDIATION:
Mediation in cross border conflicts involves issues such as conflicts not resolved which has forced one of the partner to move abroad and Child Abduction. The main object of the international family mediation is to solve the rivalries between the couples of international nature and to protect the children who have been separated from their one of their parents. Several firms from countries have collaborated with the international family group of mediators including International Conciliation Arbitration Board (ICAB), India.
Mediation is thus one of the most efficient methods to resolve a matrimonial dispute. It takes into account not only the problem at hand, but also reviews the factors leading to the problem as well as feelings of both the parties. It is a delicate and tactful way to solve issues where parties may be emotionally fragile. Although The Mediation and Conciliation Rules, 2004 provide necessary rules of conduct for mediation in India, there is a no legislation that provides a spotlight on mediation for matrimonial disputes.
Courts must also be more encouraging and willing to refer such cases to mediation as the burden upon our Courts is already excessive. Awareness regarding mediation and mediation for matrimonial disputes particularly must be given to interested persons. Before instituting a suit for divorce, the parties must the informed of the alternative, that is, mediation to try and resolve the issue.
Mediators must not only have a background in law and the required hours of experience. They must be equipped to deal with the issues that come with Family Mediation. They must be compassionate, understanding and ready to listen with the ability to assist parties in finding the right solution for their problem. Instead of looking at a marital dispute as a win-lose situation, it must be viewed as an opportunity from which better relations and compromise will stem forth.
As said by Miroslav Lajcak, ‘Mediation is one of the most effective tools of non-violence. It can turn parties away from conflict, towards compromise.’
About the author
(RIGHT IMG) Sweety Jain is a final year law student at School Of Excellence in Law, TNDALU. Interested in Arbitration, Mediation, human rights and social services.
(LEFT IMG) Shana Varughese is a final year law student at School Of Excellence in Law, TNDALU. She is interested in IP law, human rights and social services.