Family disputes are full of chaos, and they must be handled with patience to reach a solution that benefits both parties. Mediation helps in resolving disagreements more quickly than going to court. In circumstances where a settlement is possible, Section 89 of the Civil Procedure Code mandates the use of an alternate dispute resolution procedure.
Mediation is the process where a third party interferes in a dispute between two parties. It is an attempt by a third party, referred to as a mediator. The mediator must be unbiased and neutral toward both sides. Mediators do not render a decision, but rather facilitate the resolution of disagreements or conflicts between the parties. Open communication is maintained between the parties during mediation so that both can clear their doubts and misconceptions and, with the assistance and ideas of the mediator, reach a consensual decision. Many people choose to go to the mediation facility first before going to court. Anyone can request mediation by submitting a written request ahead of time. When it comes to family law conflicts, mediation has proven to be a viable choice.
Types of Mediation
- Court Referred Mediation– Under Section 89 of the Code of Civil Procedure, 1908, the court may send a pending case for mediation in India. This sort of mediation is common in matrimonial issues, especially divorce cases.
- Private Mediation– Qualified personnel works as mediators on a fixed-fee basis in Private Mediation. Anyone can choose mediators to resolve their issue through mediation, including courts, the general public, corporations, and the government sector.
- Preparation- Before the mediation process begins; the mediator can meet with the parties and give them instructions on how to go through the processes. He also clarifies any ambiguities and answers any inquiries that may arise. This talk does not have to be held face-to-face; it can be conducted over the phone.
- Introduction- First and foremost, the mediator will make opening remarks in which he will explain his duty as a mediator. The mediator will inquire whether both parties are in agreement with the process. If both parties agree, the procedures of the mediation process are followed. If the parties decline to refer the case to mediation, the Court may impose cost fines as a result of their failure to follow the procedure.
- Statement of Problem- As part of their opening statement, the mediator allows the parties to explain their difficulties. Because of this, both the parties and the mediator should have a greater grasp of the issue by the end of these comments.
- Joint Discussion- The mediator will review the concern of both parties and will ask pertinent questions to gather additional information. He’ll also be able to figure out which concerns should be resolved first as a result of this debate.
- Private Discussion- Following the combined discussion of the issues, each party is given the option to speak privately with the mediator and, if desired, with their lawyers about their concerns. It is a crucial stage that assists the parties in preparing for negotiations.
- Negotiation- The parties will continue to negotiate until they reach an agreement that is agreeable to both parties. The mediator finds a solution that protects the interests of both parties. If the negotiations fail, the case is taken to court.
- Agreement- The parties are re-assembled once the terms of the agreement have been agreed upon. The terms of the settlement would be confirmed orally by the mediator, then written down and signed by the parties. The agreement is enforceable in a court of law and has a binding effect. In a closing speech, the mediator expresses gratitude to both parties for their involvement and cooperation throughout the process.
Advantages of Mediation
- The issues are resolved amicably without jeopardizing the people’s friendship.
- Provides quick justice while reducing the court’s workload.
- It is adaptable, allowing the parties to choose whether they want to accept or reject the outcome of the trial.
- It protects the family relationship and the family’s children from emotional problems that may arise as a result of lengthy legal proceedings. It is the most suitable option in circumstances where the parents need to stay in touch after their divorce because of their child.
- It retains privacy and anonymity, allowing parties to open up about whatever alternative they wish to consider, something that is not possible in court hearings. This strategy allows high-profile clients to keep the details of their problems hidden from the public view.
- It also saves the parties money because they have far more influence over the process than they would in a court trial.
- When it comes to family matters, court proceedings become uglier, whereas, in mediation, the parties can discuss and achieve a settlement agreement. As a result, they are more convinced of the decision taken.
- In mediation, a decision can be made based on the needs of the family, which is not always the case in court.
In K. Srinivas Rao vs. D.A.Deepa[i], 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 centers. Furthermore, it has been decided that all mediation centers shall establish their litigation clinics to address marriage problems without having to go to court.
In Mohd. Mushtaq Ahmad v. State[ii], because of the disagreements and conflicts between the couple following the birth of a girl child, the wife filed a divorce petition along with an FIR against the husband under Section 498A IPC. Under Section 89 CPC, the Karnataka High Court ordered the parties to participate in mediation. Afterwards, the dispute was settled peacefully through mediation and the wife chose to have the FIR quashed.
In a family law dispute, mediation is a safe, informal method that also protects the confidentiality of the parties. Mediation is becoming increasingly prevalent in family law cases. The parties can have the opportunity to resolve their conflicts through discussions and they can also obtain the advice of a mediator who is more familiar with similar situations. It also ensures that parties are satisfied when mediators listen to their viewpoints and attempt to find a solution that is acceptable to both of them. The goal of mediation is to give the parties a fair, neutral, and timely decision or resolution. Meditation can be practised for any reason. The court’s workload is reduced through mediation, and the parties can boldly express themselves to each other. Meditation centres do not pass judgment rather they provide couples strategies for repairing the fissures in their marriage smoothly and efficiently. In addition, if the parties are dissatisfied with the outcome of mediation, they always have the option of going to court.
[i] K. Srinivas Rao vs. D.A.Deepa AIR 2013 SC 2176.