Legal

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This Blog is written by Jay Gajbhiye from National Law University, Odisha. Edited by Ujjawal Vaibhav Agrahari.

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INTRODUCTION

Marital and family relationships are still neither simple nor secured for a large number of adults and young people. According to recent research, of 13.8 million children in the US, 25 percent of those under eighteen years of age live with only one parent and 5 million children in two folk homes live with a biological parent and step-parent, with 0.5 percent of the marriages ending up in divorce. Instead of wasting too much time in a structured court case, an individual may then go to a mediator for conflict resolution. In these days, as mediation is very common, some states in the USA are using divorce mediation very consistently and generally, for example,  Texas and Connecticut. To save time and energy, the best alternative method, such as mediation, must be adopted in large numbers.

Divorcing couples should continue with the least aggressive method to divorce i.e. mediation and regard their option positively and inclusively. Because the family issues are turning into stressful positions, divorce has also become particularly common, and thus everyone is pursuing a successful approach. A divorcing spouse understands that the divorce clearly will not stop all about the union, even though it breaks the civil relationship between a husband and a wife. Mediation, known jointly as a ‘different dispute resolution,’ can be used by an impartial third person (usually additional than one person) to help two disputing parties settle disputes through mutual concession and face-to-face negotiations. A mediator should be a knowledgeable, competent individual who would not compel the parties to support them with their discussions by affecting the party’s choices. A mediator should rather encourage the parties in understanding and enabling them to negotiate in practical faith which brings fruitful results into the future.

Mediators are typically chosen by the Court, generally with the agreement of attorneys from both sides. Mediators come back in many types. Some are qualified personal mediators, many of them are attorneys. They remove the jury test requirement of 90 % of the time. Others are volunteers and some are retired attorneys or non-legal practitioners with Dispute Resolution Services experience. Mediation is a process in which the parties and their attorneys seek to settle all problems in a co-operated, fair, and meaningful atmosphere without engaging in competing tactics at or outside the court.

PROBLEMS IN MATRIMONIAL DISPUTES

What are the actual issues involving a divorcing pair in matrimonial disputes? It is important to notice that marriage is seen as a civil and social partnership of two parties, but divorce is treated as a formal end. Such meanings illustrate one of the underlying issues when a couple decides to divorce. Although the judicial system is prepared to cope with the legal issues faced by the couple while divorcing, it neither tackles nor trains them to cope with the social and emotional problems.

When personal or societal issues are resolved, it makes it far harder to fix the legal problems. When one step forward is taken, what most people complain over is not legal or financial concerns but instead claims motivated by the need to get vengeance for another person’s alleged error. Mediation reduces the quality of the court cycle. It is a confidential and ethical process that does not harm either party ‘s feelings.

SIGNIFICANCE OF MEDIATION PROCEEDINGS

Specific benefits of mediation should be seen for divorces, contract agreements, and other conflicts, with a view of stopping the matter from being taken to trial. These are charges, secrecy, monitoring, reciprocity, enforcement, and assistance.

When a mediator pays a fee close to that of a prosecutor, the mediation phase typically requires far less time than bringing a lawsuit through normal legal networks.

Although it can take months or years for a judge to settle a dispute in the custody of a prosecutor, mediation typically finds a settlement in a matter of hours. Taking less time allows us to waste less money on work hours and expenses. Confidentiality- mediation remains strictly confidential while court hearings are public. Nobody but the dispute parties and only the mediators know what happened. Mediation confidentiality is so important that, in most cases, the legal system cannot force a mediator to state the contents or progress of the mediation in court. Many mediators also delete their notes made during the meeting when it is completed. Below are a few ways how mediators fix problems. [1]

Control – Mediation enhances the authority over the resolution by the parties. The parties seek a settlement in a legal dispute, but the power lies with the judge or jury. A lawyer or jury also cannot provide substantive remedies in mediation. Mediation is most likely to achieve a mutually beneficial outcome for the parties.

Compliance – As the outcomes are reached together by the participants and mutually agreed, compliance with the negotiated arrangement is generally strong. It also eliminates expenses, as the parties will not have to hire a prosecutor to deal with the arrangement. Nevertheless, the negotiated deal should be implemented entirely in a court of law.

Mutuality – Mediation participants are usually expected to work closely towards a settlement. In certain situations, the very fact that the parties can mediate implies that they are prepared to “move.” The sides are also more inclined to consider the other party ‘s perspective and thus more likely to compromise on the fundamental problems. It has the additional benefit of preserving the partnership between the parties until the confrontation,

Support – Mediators are trained in working with difficult circumstances. As a neutral facilitator, the mediator guides the parties through the proceedings.

SOME DISADVANTAGES OF MEDIATION

1) The opposite spouse may not act together and you can’t force him/her.

2) The other party will seek to control you and a prosecutor can only account for the difference here.

3) The other spouse can fear or intimidate you, and if a spouse becomes frightened of personal protection, confidence in involvement drops drastically.

4) Others claim that the decrease in the importance of counseling and the high cost of lawyers is attributed to their good business experience and can, therefore, forecast the correct result of the case more precisely.

Every divorcing pair will then seek to fix their marital problems inside themselves. If they can’t do that, at the very least they need nothing from each other and should bear the mediation process that leads to a conclusion. The typical adversarial method can be a final recourse (taking into consideration the prices) in certain conditions where the two partners cannot achieve an agreement.

IMPACT OF MEDIATION PROCEEDINGS

Mediation is used to reduce the consequences of an adversarial divorce. When parties contest each issue with tenacity and carefully discuss each procedure, both lawyers and court charges accrue. Mediation tries to avoid this ruinous dispute. Furthermore, when partners efficiently agree with themselves, they are much more likely to respect the agreement so that relitigation or modification costs are avoided. It further reduces the responsibility of proceedings, which protects the economy.

A further advantage typically attributed to mediation is that it allows parties to control their destiny and to find solutions more suitable for their unique needs. The benefit of mediation can also be the reduction of mental trauma, as the judicial system is not intended to serve emotional needs. The consultation also refers in turn to the breakup of the marriage. The severance of a close relationship such as marriage can cause considerable anxiety, which can exacerbate the procedure later unanswered. Mediation enables relational problems to be addressed by honoring one another and eliminating responsibility.

STATUTORY PROVISIONS

Several provisions in the legislation provide for conciliation and settlement before litigating in the Court.

Section 89 of the Civil Procedure of Code[2] provides “for alternative dispute resolution mechanism to be followed in the cases where there is a possibility of a settlement”.

Mediation is one of the methods for finding a peaceful compromise specified in section 89. However, in this segment, agreement of all parties is required and sometimes one party is reluctant to mediate in matrimonial disputes.

In Section 23(2)[3] and 23(3)[4] of the Hindu Marriage Act, “A court is directed to try reconciliation between the divorce-seeking parties, depending upon the nature and circumstance of a case”. The same is laid down in Section 34(3)[5] and 34(4)[6] of the Special Marriage Act, “making reconciliation as the option to be opted by Court at first instance in divorce cases”.

Family Courts try and bring about a settlement in the family disputes if possible. The principle of compulsory mediation was adopted for the first time in 2003 under the Civil Procedure-Mediation Law. Compulsory mediation allows the Courts to send mediation cases without the consent of both parties, where an element of settlement exists and where connections between the parties are such that they must be maintained.

Family and matrimonial conflicts are subject to formal mediation because it is in the scope of the law to preserve connections between the parties.

Mediation is the most popular procedure in divorce cases and multiple mediation centers are developed across the country for the fast disposal of cases.

CASE LAWS

Some case laws related to mediation proceedings are:-

a) In V. Rao v L.H.V. Prasad,[7] the Court held that marriage has a rather important meaning and is an essential precondition for bringing a family into being. In our society, marriage is also a child-centered heterosexual institution. Nevertheless, if marriage as a unit breaks down, the integration of a separate partnership is required to move free from the normal arrangement and harmony of the family. Family law and courts therefore primarily promote mediation and resolution through mutual consent of matrimonial conflicts rather than lawsuits of tribunals.

b) In S. Krishna Murthy & Anr. v B. S. Nagaraj & Ors,[8] the Court found that in particular, when relationships such as family and business are engaged, the lawyers must advise their clients to attempt to mediate for solving disputes. Otherwise, the litigation will often ruin both parties for years and decades. Therefore, both lawyers and litigants should take Mahatma Gandhi‘s advice in this matter and try to arbitrate/mediate. The disagreement, in this case, was between spouses, and they were ordered to testify before the Bangalore mediation center for settlement of the dispute.

c) In Aviral Bhatla v Bhavana Bhatla,[9] the Supreme Court confirmed the resolution of the dispute, appreciating the successful way that the Delhi High Court helped the parties to find a compromise through the Delhi Mediation Centre.

d) In Srinivas Rao v D.A.Deepa,[10] the court was of the view that the mediation would be rendered mandatory only in criminal non-compoundable situations where the parties want to negotiate so that divorce proceedings are resolved in these situations where there is a region of resolution between the parties. It also commanded all mediation centers to have disks/clinics and to publicize them in the masses so that matrimonial disputes can be resolved without the stage of the proceedings.

e) In Gaurav Nagpal vs Sumedha Nagpal, [11] the Hon’ble supreme court noted that the flooding of courts in divorce and legal separation is a very distressing phenomenon. The divorce clauses in Hindu Marriage Act, 1955 categorizes circumstances in which a divorce order can be sought. Only when such a path is open, people would generally not be allowed to pursue a divorce, until marriage has irreparably broken down.

ANALYSIS

A number of them, faced with a breakdown of their closest relation, could reopen their forms of communication by the suitable dispute resolution method, analyze their misunderstandings, investigate whether there is any life left in marriage and examine whether the petition for divorce is simply a way of teaching the other spouse a lesson. Where promises have been made before death and sacred knots are attached and unexpected events leading to divorce have occurred, the couple has to face several complex choices. How can lifestyles be maintained and assets divided? How will the children properly be looked after? An opponent’s environment could be counterproductive in exploring such problems. Mediation may help address the main party’s desires and fears and consider innovative approaches to improve the wellbeing of all parties and their children. We are too fixated to be right to not achieve the true objective in conflict resolution. The winner of a fight does not support the partnership at all. Getting to a level playing field and understanding the view of the other person can help both individuals to figure out how to correctly resolve the problem. Within a partnership, the aim of overcoming confrontation is not victory or loss. It hits awareness and allows our desire to be correct.

CONCLUSION

Mediation is a method of discussion. The individuals participating in the consultation process engage in this procedure implicitly and with full agreement. Disputes are resolved through a process supervised by a mediator. The object of mediation is to provide the parties with a reasonable, impartial, timely judgment, or conclusion. For some matter, meditation may be performed. [12] Today, however, the subject concerned is divorce. Divorce mediation is a necessary process and must be carried out before going to trial. The pressure of the court declines by mediation, and the sides will make their argument known to each other firmly. Mediation is a non – legal and informal method for divorcing couples. Meditation centers do not move the view but provide couples ways to reparate their marriage breaks easily. During the counseling procedure, the divorcing spouses can offer their partnership another chance or file a divorce petition within the court. The divorce becomes a consensual divorce with the consent of both of the spouses following the mediation procedure. Section 9 of the Family Court Act, 1984 also requires that the couples have to go through the consultation process before they proceed to the trial. Mediation is also a must for all divorcing partners to give their marriage another chance.

REFERENCE

[1] Dinesh Singh Chauhan, “Mediation: Clearing the Minefield of Matrimonial Disputes” http://www.legalserviceindia.com/legal/article-620-mediation-clearing-the-minefield-of-matrimonial-disputes.html

[2] “provides for alternative dispute resolution mechanism to be followed in the cases where there is a possibility of a settlement”.

[3] “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] “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] “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”

[6] “In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.”

[7] V.Rao v L.H.V. Prasad (2000) 3 SCC 693.

[8] S Krishna Murthy & Anr. v B.S. Nagaraj & Ors. (2011) 15 SCC 464.

[9] Aviral Bhatla v Bhavana Bhatla (2009 SCC (3) 448).

[10] K Srinivas Rao v D.A. Deepa (2013) 5 SCC 226.

[11] Gaurav Nagpal v Sumedha Nagpal (2005) 140 PLR 636.

[12] Saakshi Jain, “Use of Mediation During Divorce Proceedings in India”(2019) https://www.mediate.com/articles/jain-use-of-mediation.cfm