India is the second most populated country in the world, and its large population results in numerous conflicts and ongoing cases, which take time and overwhelm the courts. Mediation may be empowering and beneficial while maintaining privacy, as it focuses on an amicable settlement rather than right and wrong, and it opens up new possibilities in the best interests of both parties. When a couple divorces, the problem of child custody arises. The child is an innocent party in the disagreement and, if not protected, takes the brunt of the parents’ hostility. Custody of the child entails more than just physical custody; it also opens several auxiliary obligations, such as schools, sports, religion, holidays, and lifestyle, all of which must be determined in the child’s best interests. Under child custody, the parents must agree jointly and calmly, putting aside their grievances against one another and focusing entirely on the wellness of their child. The laws pertaining to child custody and guardianship are inextricably interlinked. Guardianship is a broad term that relates to an adult’s rights and powers concerning a minor’s person and property, however, custody is a more specific term that refers to the minor’s upbringing and day-to-day care and protection. Mediation can help to find a solution without jeopardizing the child’s well-being due to a disagreement between his/her parents. The custody of the child through mediation is a collaborative procedure aimed at achieving a common goal that is in the best interests of the child. It is a procedure in which both parents are actively involved and responsible for the child’s well-being. When family issues are resolved through mediation, the child can maintain a regular lifestyle regardless of the collapse of his or her family.
When it comes to child custody, the goal of mediation is not to determine who is right or wrong, but to find a solution that fulfills the requirements of the family while also being in the best interests of the child. Both parents have a say in deciding custody and access arrangements for their children when a child custody issue is resolved through mediation. Children feel safer knowing that their parents are willing to work together to overcome family issues. Parents are in the best position to determine what their children require. It assists in the development of trust between parents, allowing for future negotiations on difficulties that emerge. It is indeed simpler to work with a plan that parents devised together rather than one imposed by the court, and it can prevent the parties from getting a long and expensive court battle. Mediation reportedly produces better outcomes for children after divorce.
Importance of Mediation in Child Custody
Divorce has both short- and long-term consequences for children. It is critical to ensure that the child suffers as little harm as possible during the divorce. A bad divorce does not necessarily have to be the case. A good divorce is very likely if the parents divorce amicably and take an active role in choosing their child’s wellbeing. A healthy divorce results in both the child and the parents being emotionally distressed, but not to the extent which they were facing before the divorce. There are various benefits of mediation in child custody cases, underlining the need for mediation. They are:
- Mediation reduces the impact of parental conflict on children.
- The intensity of the antagonism between the competing parents is reduced by mediation.
- Mediation helps in reducing the duration of the conflicts.
- Mediation produces better and more beneficial outcomes than the confrontational method.
- Mediation agreements are more tailored to the requirements of the family.
- Mediation agreements are more accurate since they are tailored to the parties involved.
- In mediation, the interests of the child are of utmost importance.
- Due to enhanced parental cooperation, mediation benefits the child.
- In circumstances of mediation, the financial interests of the child are more protected.
- Due to the friendly character of the mediator, relationships with children are better preserved.
- Mediation creates a more conducive climate for the child to participate actively in choices affecting his or her custody.
- Mediation can be more child-centered and inclusive of children.
Mediation allows for the involvement of a professional neutral person with the knowledge and skill to guide and aid the couple in resolving their mutual differences and arriving at a constructive solution for the child. Mediation promotes more pleasant post-divorce relationships, as well as financial settlements for child-rearing expenses. It assists parents in focusing their attention on the child and his or her well-being. Mediation, from a psychological viewpoint, helps to make divorce procedures and their impact on the children less intrusive and potentially therapeutic. A matrimonial court should refer a child custody dispute to mediation; however, the decision to refer to mediation should be based on factors such as the child’s vulnerability, his or her ability to participate in the mediation proceedings, the nature and type of allegations made against a party, and the family dynamics.
In K.Srinivas Rao v. D.A Deepa,[i] a landmark verdict was given where the Apex Court ordered all courts dealing with matrimonial disputes to resolve the disputes through mediation in the first instance. The Supreme Court ordered that Family Courts and Criminal Courts shall refer parties to Mediation Centers to resolve their disputes through mediation. In light of section 9 of the Family Court Act, 1984 the Supreme Court of India directed Family Courts to make all reasonable efforts to resolving matrimonial disputes, particularly those involving maintenance, child custody, and other issues, through mediation, and to refer parties to mediation centres with their consent.
In Perry Kansagra v. Smriti Madan Kansagra,[ii] the court based on the desire expressed by the parties to make one more attempt to reconcile their marriage and custody matter referred the case to Mediation. It was held that child was happy enough living with her mother and enjoying timely visitation with his father and grandparents.
Mediation focuses on finding a reasonable solution rather than on right or wrong. It is a flexible kind of negotiation that assists people in resolving problems outside of the courtroom. People are slowly learning and favouring Alternate Dispute methods since it is a neutral, peaceful, and quick process. It also allows the judiciary to concentrate on more serious matters and lessen the workload for the judiciary. As a result, society requires mediators in this profession who are capable of handling these issues properly. When parents decide to separate and divorce, the consequences for their children can be heartbreaking. Parents are far too often engrossed in their quarrels to notice the impact of their actions on their children. High-conflict situations have been shown to have a particularly negative impact on children. Mediation is intended to lessen conflict by assisting the parties involved in reaching an agreement rather than litigating in court. As a result, lawyers and judges alike are increasingly urging parties to engage in mediation for the sake of the children. The 257th Law Commission Report suggests that Section 19f must be added to the Guardians and Wards Act, 1890, to cover mediation in situations of child custody. According to the report, mediation will help parents and children achieve better outcomes while also relieving pressure on the overburdened Indian courts. The Report suggests that parties involved in child custody disputes consider mediation first before starting legal proceedings or being directed to do so by the Court.
[i] K.Srinivas Rao v. D.A Deepa (2013) 5 SCC 226