Author- Vedant Bisht , Ridhi Aggarwal

 

Introduction

As our country steadily embraces modernity, discourses on topics such as marriage, divorce, and live-in relationships are slowly being normalized. Marriage is gradually waning in its status as a sacred, ubiquitous union and it is no longer uncommon for a couple to approach legal mechanisms to resolve differences in marriage or take steps to separate.

Using mediation to settle these disputes is slowly becoming a feasible alternative in India currently. Mediation is a voluntary, binding, and impartial procedure in which a neutral third party, namely the mediator, assists the parties to the dispute in reaching a settlement. In the field of family law, mediation processes generally deal with issues like divorce, inheritance and guardianship of children.

The provisions concerning mediation are governed by the Section 89 of the Civil Procedure Code, 1908 (“CPC”).[1] In family law in particular, mediations are mandatory under Section 9 of the Family Courts Act, 1984.[2]

Moreover, even various personal laws have put mediation forward as a practical option in case of disputes. In Sections 23(2) and 23(3) of the Hindu Marriage Act, 1955, the courts are encouraged to attempt reconciliation between the divorce-seeking couple.[3] Similarly, in Sections 34(3) and 34(4) of the Special Marriage Act, 1954, the first course of action for the courts in case of a divorce proceeding is to arrange for a reconciliation.[4]

This article attempts to gain practical insights on the mediation process in India. For the same, the authors interviewed Mrs Sharmila Charalwal, a mediator at the Nagpur High Court, who has been mediating family law disputes since a long time. Through this interview (refer to the Annexure) the authors attempt to gauge the difficulties faced by the mediators, pros and cons of the structure. The article firstly, provides a brief analysis of the role of mediator and how the process of mediation seems promising on paper. Secondly, it analyses the actual situation of family law mediation basing its claims on the interview. Thirdly, it suggests improvements to make the process smoother and more efficient.

Role of a Mediator

A mediator is a neutral third party who specialises in facilitating people to interact so that the disputed parties can understand each-other’s problems better and reach a settlement. It is also incumbent on the mediator to intimate the parties about the mediation process in detail including the principles that are considered and the points to be addressed during the sessions

A mediator’s function involves managing the process for the parties, to keep the talks going, and to help the parties reach a settlement fair to everyone involved. The mediators are impartial; they do not let their personal bias affect the integrity of the session. The mediator must also remain confidential regarding any knowledge that is disclosed to him during the proceedings.[5] The mediator smartly summarizes the points[6] and solutions discussed to facilitate a more structured session such that the parties can track the flow of the discussion. The mediator also helps the parties to come up with creative solutions that ensures a win-win situation for both the parties.

Analysis of the Interview

From the very insightful interview that we had with Mrs. Charalwal, it can be concluded that mediation has indeed come up as a viable option for the distressed parties, keeping into consideration the backdrop of litigation. The paper bases this claim on four reasons.

First, compared to litigation, mediation is time effective. In India, mediation cases in family cases can get resolved as quickly as 30 days in some instances.[7] Compare this to the constantly shifting dates and backlogs that a family court has, which take months and years, and mediation is certainly the time-effective choice.

Second, litigation is fairly heavy on the pockets of both parties, because of the expenses paid towards discovery of evidence etc,[8] while mediation is a cheaper dispute resolution mechanism and also saves the parties from expensive lawyers.

Third, resolving a dispute by way of mediation also saves the family relationships from becoming hostile, the way they generally get when the ordeal of a hostile court case has to be put up with. On the flip side, mediation tends to peacefully resolve these disputes and preserve the relationships.

Fourth, mediation sessions are conducted in a private setting and all the documents produced are confidential, unlike a litigation proceeding, which are generally public in nature.[9] Since the mediation sessions address the privacy concerns of the parties, it facilitates a more transparent and open discussion. Moreover, the personal growth of the minors can be severely impeded if they are made to bear these litigations at a tender age.

While the above-mentioned points make mediation seem like a very promising alternative, it is hard to ignore some of the major shortcomings in the process of implementation as has been made clear by the interview. The paper will now list these issues and suggest measures to correct them.

First, the abysmal infrastructure quality of these mediation centres. Inadequacy of the infrastructure makes it difficult for the mediators to stay motivated. Witnessing infrastructure like faulty furniture in the centres, where families often have to spend hours, is not a conducive workplace environment. Sometimes, the inadequacy of infrastructure impedes on the effective functioning of the mediation centres. Parties often have to participate in the process in an open room and in the presence of strangers and it heavily compromises on the privacy of the parties.[10] Moreover, when the process of mediation lacks a congenial atmosphere, it makes it difficult for the parties to have lucid and truthful discussions.

Second, the paucity of court staff and lawyers in family courts have several ramifications. Since the number of cases to be resolved is considerably higher than the officials involved, it creates a plethora of pending cases. This stretches the time lap for each case to be resolved. It has been witnessed that several cases get stretched up to decades and the backlog piles up. The problem of an alarmingly low level of officials is prevalent in all courts and bears similar consequences. Moreover, the unavailability of lawyers makes it difficult for the litigants to follow the complicated procedure. In such situations, the litigants are often guided by the court clerks and other staff who possess inadequate knowledge.[11] This subsequently makes the procedure more tedious for the people.

Third, there exist a lot of inconsistencies in the regulations surrounding mediation. The absence of an exclusive legislation entailing provisions that deal with mediation and its policies creates several problems. There exists a lack of uniformity in the mediation process, as most of the High Courts have their own set of rules governing mediation and conciliation.[12] A lack of uniformity in the process of mediation makes it prone to arbitrariness and subject to the discretion of the officials. Several authors have mentioned how there is no fixed qualification criteria for being a mediator.[13] This element of arbitrariness takes away the trust that parties place in the process of mediation.

Suggestions

The most urgent need of the hour is to consolidate the scattered policies and practices in the domain of mediation and come up with something that ties everything together and includes a system of checks and assessments.

Bringing in a uniform statute or legislation on the subject of mediation will be an important step.[14] Justice D.Y. Chandrachud propounded the same in one of his papers.[15] A National Commission of Mediation could concrete the regulatory framework across the nation. This Commission should be empowered to formulate a consistent qualification criterion for the mediators while also facilitating the training workshops and courses for the aspiring mediators. A lower limit for the number of mediators allotted for a court must also be set by the proposed Commission, including a minimum number of women mediators. Also, there must be at least one women counsellor/ therapist assigned to each High Court. A failure to conform to these rules should be penalised.

Poor infrastructure is a very deep-rooted problem plaguing the country, including the judiciary. An ex-CJI went as far as to ascribe poor infrastructure as the reason for the humongous backlog of cases.[16] One way to counter this could be to allocate more capital and funds for infrastructure.

The commission should carry out an assessment/survey of the mediation centers in the country and assess the expenditure required to improve the infrastructure of these centers. A consolidated plan for expenditure based on the survey should be sent to the legislature to act upon.

Conclusion

After a brief introduction of the theoretical concept of mediation, the paper sought to dig into the ground realities of the process in the form of the interview. The paper then analysed and researched into the aspects mentioned in the interview and categorised the analysis into the benefits and shortcomings of mediation centres. It was found that while mediation is the right way forward, it needs to be implemented in a better manner. In the end, suggestions were made to alleviate the problems and a National Commission of Mediation was proposed.

 

Annexure

The interview with Mrs Sharmila Charalwal was conducted via WhatsApp and the transcript has been attached below.

Sr no.

Questions

Answers

1)

Do you believe mediation as an option is becoming more and more popular and a considerably more number of people are choosing mediation? What do you think is the reason for this?

Yes, Definitely more and more number of litigants are referring mediation. This procedure is time bound. Due to the hard work of Hon’ble judges (federal judges) and mediators, the number of successful mediation has increased and this has inspired other litigants to opt for mediation. Mediation process allows contesting litigants, to sit together and discuss disputes, which otherwise is impossible. In mediation process lawyers, close relatives of litigants also helps mediators, to settle the dispute. The litigants faith has increased on mediation. The mediation process is much successful in family court. In family courts, the presence of parties is required, as lawyers are appointed by permission of Hon’ble court. Sometimes, there is actually no dispute between the parties, rather the dispute is not of kind to reach to court. Due to personal egos of husband and wife or their parents lead to litigation such disputes can easily be settled in mediation, where all parties sit together, with intention to settle down dispute. For successful mediation, the mind set up if litigants must be positive and mediators do this job.

2)

Is the quality of infrastructure and facilities in a government mediation centre/facility good enough?

The quality of infrastructure in mediation centre is not adequate. It needs to be improved. The mediation centres should have separate staff.

3)

Is there a shortage of mediators with respect to demand in the country?

No, there is no shortage of mediators in court.

4)

Are there any problems with the mechanism of mediation that mediators are facing in India right now?

mechanism of mediation depends on mode of working of individual mediator. It has to be set up according to mediators working. The complete set up for mediation is according to mediator, but within a stipulated time. Mediation in courts are getting successful, but it needs to be advertised. Many litigants are not aware about mediation centre. The mediation awareness programmes are there, but it is restricted in court premises. The people at large must be made aware about mediation centres and process of mediation.

  1. Civil Procedure Code, 1908, s 89, The Gazette of India, (Mar., 21, 1908). Section 89(1) provides ‘Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for- (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation.’ Section 89(2) provides ‘Where a dispute has been referred- (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.’

  2. Family Courts Act 1984, s 9, The Gazette of India, (Sept., 14, 1984). Section 9(1) provides ‘In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. Section 9(2) provides ‘If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.’ Section 9(3) provides ‘The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.’

  3. Hindu Marriage Act 1955, s 23(2); 23(3), The Gazette of India, (May 18, 1955). Section 23(2) provides ‘Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties’

  4. Special Marriage Act 1954, 34(3); 34(4), The Gazette of India, (Oct., 9, 1954). Section 23(3) provides ‘For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report’.

  5. Ayush Verma, How Mediation Functions in Family Law Disputes, Ipleaders, (Dec., 28, 2020), https://blog.ipleaders.in/mediation-functions-family-law-disputes/.

  6. Jackie Omana, Summarizing: An Underappreciated Mediation Skill, Mediate India, (April 2006), https://www.mediate.com/articles/pageOmana.cfm.

  7. Lourie Woods, Mediation: A Backlash to Women’s Progress on Family Issues, 431, (1985).

  8. Samarth Bansal, Legal System Too Expensive for Most: Study, The Hindu, Apr., 24, 2016.

  9. Pinky Anand, Family law in India: Overview, Thomas Reuters Practical Law, (Nov., 1, 2020), https://uk.practicallaw.thomsonreuters.com/6-581-5985?transitionType=Default&contextData=(sc.Default).

  10.  Ashok Kumar & Soibam Rocky Singh, Mediation: An Overlooked Way To Access Justice, The Hindu, Dec., 17, 2018.

  11. Poornima Advani, Working of Family courts in India’ National Commission of Women, (2002), http://ncwapps.nic.in/pdfreports/Working%20of%20Family%20courts%20in%20India.pdf.

  12. Manisha T Karia, Effective implementation of Mediation in India: The way forward, Bar and Bench, (Dec., 23, 2019), https://www.barandbench.com/columns/effective-implementation-of-mediation-in-india-the-way-forward. 

  13. Ashok Kumar & Soibam Rocky Singh, Mediation: An Overlooked Way To Access Justice, The Hindu, Dec., 17, 2018.

  14. Geethanjli Sethi, Mediation: Current Jurisprudence and The Path Ahead, Mondaq, (June 24, 2020), https://www.mondaq.com/india/arbitration-dispute-resolution/957898/mediation-current-jurisprudence-and-the-path-ahead.

  15. Id.

  16. Soibam Rocky Singh, Backlog of Cases Due to Lack of Judicial Infrastructure, The Hindu, July 26, 2018.


Please follow and like us:

By admin

Leave a Reply

Your email address will not be published. Required fields are marked *