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Mediation As A Dispute Resolution Mechanism In Matrimonial Disputes

The matrimonial disputes are inevitable it can arise due to any reason such as verbal or physical abuse to personal characteristics and behavioral patterns, marital dissatisfaction, extramarital relations, habitual drinking are some other reasons for such conflicts.

The current data says that there are over 8000 cases pending in the family courts, the number of filing new cases have come down due to the pandemic but it also increased the pendency of the cases. The courts are over burden with the pendency of the cases so in most of the matrimonial disputes the judges' advice to go for the alternatives methods of dispute resolution under ADR and mediation is one of the methods of Alternative Dispute Resolution which is also an alternative to the court proceedings.

It is the process which provides the forum to the disputing parties where they can talk, argue, discuss and finds the root cause of the dispute. The main motive behind the awareness and encouragement towards the ADR is that it is less-expensive and less time consuming and it also ease the burden of court by the settlement of the cases outside the court.

Mediation's role in the matrimonial disputes:

The Matrimonial disputes are not easy to handle as it affects all the people who are connected to marriage not just physically but also mentally. The court proceedings can be hectic as the couples have to be present before the court for the hearing and it's not just about one hearing but many hearings, more years and more time-consumption.

Mediation plays an important role which is speedy and less expensive method of the ADR to solve the matrimonial disputes outside the court. Because there are thousands of unresolved issues in courts, pursuing mediation alleviates the pressure on courts. As a result, the process is highly efficient.

Mediation is an informal court process in which couples are given solutions to restore their marriage rather than being judged. After the mediation procedure is over, the couple has the option of giving their marriage another try or filing a petition for divorce in court. Mediation settlements have been achieved with the consent of both parties. Mediation facilitates mutually accepted settlements that are beneficial to everyone's interests. Mediation shifts disputes from win-lose to win-win.

The primary benefit of the divorce mediation method is that it minimizes the high expense and time-consuming litigation process. It is a fair process that benefits both parties. It's also extremely flexible and requires hardly any formality.

Unlike the Arbitration and Conciliation Act, there is no specific statute that initiates the mediation procedure between the parties in marriage disputes. There are only two ways to commence the process:
  1. Parties voluntarily agree for mediation process or private mediation.
  2. Section 89 of the Civil Procedure Code requires courts to refer parties to mediation[1].

Mediator- role, qualifications etc.

A mediator is a trained professional who serves as a neutral facilitator throughout the mediation process. The mediator's function is to bridge the interests of two opposed parties by clarifying their issues and removing barriers to communication. They lead the conversation and the process to reduce or eliminate conflict and ill will. They will seek compromises from each party to find a middle ground along with providing steps for each party to come to a reasonable solution.

According to the Chapter-IV Section-8 of the THE MEDIATION ACT, 2023 [2]
  1. Unless otherwise agreed upon by the parties, a person of any nationality may be appointed as a mediator:
    • Provided that mediator of any foreign nationality shall possess such qualification, experience and accreditation as may be specified.
  2. The parties shall be free to agree upon the name of mediator and the procedure for their appointment.
  3. If the parties do not reach any agreement on a matter referred to in sub-section (2), then the party seeking initiation of mediation shall make an application to a mediation service provider for the appointment of a mediator.
  4. Upon receiving an application under sub-section (3), the mediation service provider shall, within a period of seven days, appoint:
    1. the mediator as agreed by the parties; or
    2. in case the parties are unable to reach agreement as to the appointment of mediator or mediator agreed by them refuses to act as mediator, a mediator from the panel maintained by it, with his consent.
  5. The person appointed under clause (i) of sub-section (4) shall communicate his willingness or otherwise within a period of seven days from the date of receipt of communication of such appointment.

Advantages of Mediation in Matrimonial disputes:

  1. It gives the comfortable environment to the disputed parties: In the case of marital disagreements, it is extremely difficult for the disputants to open up in front of a third party because the conflicts are so personal to them and they may not be comfortable discussing their grievances openly. It is now the mediator's responsibility to ensure that the disputing parties acquire the mediator's trust and speak up about any challenges they may be experiencing.
  2. It focuses on the root causes of the dispute: A mediator focuses to find the root cause of the dispute rather than simply beating around the bush which creates the confidence in the disputes parties to come up with their problems.
  3. It considers both parties: One of the main advantages of the mediation is that it does not focus on the one party but it bridges the gap between the two parties. And it also considers the interest of both the parties.
  4. Less expensive: The court proceedings can go for years and years and the litigation cost during each and every hearing makes it quite expensive. Hence, opting for mediation can be less expensive compared to the court proceedings.
  5. Speedy disposal of the cases: The courts are overburdened with the pending cases and it is very hard for the judges too, to dispose of the cases in less time. The court proceedings can be time-consuming so the parties can go for mediation where they can talk, discuss and come to the conclusion in less time.

The Steps involved in the mediation:

Step 1: Convening the Mediation Process
Section 89 and Order X Rule 1A of the Code of Civil Procedure, 1908 [3]compel the court to direct the parties to choose one of the five modes of alternative conflict resolution and to refer the case for arbitration, conciliation, judicial settlement, Lok Adalat, or mediation. A referral order issued by the referral judge commences the mediation process and serves as the foundation for court-referred mediation.

Step 2: Initiation of the Mediation Process:
A mediator initiates the process of mediation by introducing his role, qualifications to the parties and parties also introduce themselves to the mediator.

Step 3: Setting the Agenda:
It is very important to set an agenda in the mediation which includes setting up the issues and also mediator mentions the time, venue and the rules to be followed during the process.

Step 4: Facilitation of the mediation process:
The process of mediation includes two sessions one is joint session and the other one is separate session. In Joint session is a forum where parties explains their points, keep their issues before the mediator while on the other hand Separate session helps the mediator to get into deep to gather the information about the parties as the mediator discuss their issues separately.

Step 5: Reaching a settlement:
When parties come to the settlement then they write down their terms and conditions of the settlement and sign the agreement which is enforceable before the court but in case if parties are fail to come to a settlement then the case has to be sent back to the referral court.

Cases Encouraging Mediation in Matrimonial Disputes

  1. Srinivas Rao v. D.A. Deepa [4]: In this case, the Supreme Court ruled that mediation is required before a divorce can be finalized. When a case arises under Section 489A of the IPC, the Supreme Court instructs the criminal courts not to deal with the complaint unless it is referred to the mediation centres. However, in a few cases where the cruelty is particularly severe and dangerous, the criminal courts may take the case without referring it to the mediation centres. Furthermore, it has been decided that all mediation centres shall establish their litigation clinics to address marriage problems without having to go to court.
  2. S Krishna Murthy vs. B.S Nagaraj and Ors [5]: In this case, Justice Markanday Katju ruled that lawyers should urge their clients to seek mediation, particularly where the issue is family in nature. Otherwise, the case drags on for years or decades, which is damaging to both sides.
  3. Salem Bar Association v. Union of India[6]: In this case, Writ Petitions were brought to challenge the Code of Civil Procedure Amendments 46 of 1999 and 22 of 2002. Among other revisions, the Hon'ble Supreme Court focused on Section 89 of the Code of Civil Procedure. The Hon'ble Supreme Court proposed that a Committee be formed to guarantee that the reforms made to the Code of Civil Procedure become effective and result in faster dispensing of justice.

Alternative Dispute Resolution is an efficient and flexible method to settle the dispute outside the court it can be less expensive and less time consuming compared to the litigation process. When it comes to matrimonial disputes it is advised to the disputed parties to go with the ADR. Mediation is one of the methods under the ADR which provides the forum to the disputes parties to sit, talk and discuss the issues with the help of the mediator who is the neutral person who

  1. The Code of Civil Procedure, 1908
  2. The Mediation Act, 2023
  3. The Code of Civil Procedure, 1908
  4. Srinivas Rao v. D.A. Deepa [2013] SC 2176
  5. S Krishna Murthy v. B.S Nagaraj and Ors [2010] S.L.P. Civil No.(s). 2896
  6. Salem Bar Association v. Union of India [2005] 6 SCC 344

Award Winning Article Is Written By: Ms.Astha Sen
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