Practical Implications of Mediation in Family Law

Abstract

This article deals with an introduction to mediation, and the necessity associated with the family law disputes to opt for mediation, as this primarily reduces the burden of the courts. Moreover, it also bring the parties to a level of calmness, and brings a possibility to resolve the disputes through an amicable manner. The article delves upon the varied aspects ranging from the introduction to mediation and family law, from which it moves to the research methodology adopted for the limited ambit of this article. Post the research methodology, the article throws light on the available suggestions as to enhancing the scope of mediation in family law. The literature review, analyzes on articles ranging from the theoretical aspects between mediation and familial disputes ( which the article predominantly covers on the limb of matrimonial disputes).The article details on the statues relevant under this topic and also touches on the aspect of link between mediation and family law, the associated benefits. 

Keywords: mediation, family law, resolution, amicable , matrimonial disputes

MEDIATION

Mediation, an alternative dispute resolution mechanism, which is a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in reaching a settlement.

In literal sense, mediation, has been prevalent in India, with gram panchayats serving as the mediators. 

Procedurally, a Mediation, has the following steps,

  • Introduction – The mediator introduces himself to the parties, and explains them the procedure followed in a mediation, thus also establishes neutrality. 
  • Joint Session – Mediator, gathers the information pertaining to the factual background and interests of the parties in order to initiate a healthy interaction, which could eventually lead to a settlement. 
  • Individual Session – When the need arises, mediator shall allow the disputing parties to further explain their grievances, which helps to gather further information, thus persuading the  individual parties to share confidential information and helps them to create options for an amicable settlement. 
  • Agreement – This, is considered to the step that concludes the mediation process, with the settlement agreement, which, being written, helps in confirming and clarifying the terms of the settlement into a complete, clear , concise and a binding agreement. 

Mediation, is an informal process, but the process is structured with an aim to ensure that the confidentiality of the parties are maintained with utmost care. The Mediation Act, 2023, defines mediation as, 

“whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person referred to as mediator, who does not have the authority to impose a settlement upon the parties to the dispute”

FAMILY LAW

This is a very crucial aspect of the legal system that prevails in India. Statutorily, there exist personal laws, but these are also considered holistic, as it does not violate the personal beliefs and sentiments of individuals belonging to any particular religion or community. 

The disputes dealt under the family law shall include, matrimonial disputes, child-custody oriented disputes, inheritance, post-divorce issues, parenting, extended family concerns and even elderly care ( as governed under the Maintenance of Parents and Senior Citizens Act, 2007 ). 

MEDIATION & FAMILY LAW

The affairs are dissolved neatly without damaging the bond between individuals. Administers quick justice, which also eliminates the pressure from the court. Is readily adaptable and provides the defendants the right to determine whether or not they want to accept or reject the trial’s decision. Thus, it protects the bond and, as a result, the children of the family from serious emotional problems they could face from time to time of court trials. It is also a convenient idea to understand for cases where the two involved parents still need to come into contact occasionally after separating due to their offspring. Maintains privacy and confidentiality, which gives defendants the power to express an opinion about which option they need to consider, which rarely happens during court trials. 

In the case of S.Thankikodi v. Ramuthayee, The Court, in dealing with matrimonial cases, was required by section 23(2) of the Hindu Marriage Act, 1955 to attempt reconciliation between the parties to a matrimonial case as the first step. Still, the court claims that it can engage in conciliation only if it sees a chance of saving the marriage and not otherwise.

STATUTORY APPLICATION

 The family law, in specific can be dealt under is bound by the acts as follows:

  • the Hindu Marriage Act of 1955
  • the Special Marriage Act of 1954
  • the Family Courts Act of 1984
  • Hindu Minority and Guardianship Act, 1956
  • the Family Court Act of 1984, 
  • the Civil Procedure Code, 1908 
  • the Legal Service Authority Act of 1987
  • the Mediation Act, 2023

RESEARCH  METHODOLOGY 

The research has been primarily occurred covering the aspect of the practical implications of mediation in family law. The scope or the ambit of research is not limited to the country of India. The article delves upon the literature review, to understand the interpretation adopted in India, Australia, Kolkata ( within India). Beyond the geographical aspect it also seeks to explore on family mediation from the lawyer’s and client’s angle. 

The main methodology adopted for research being, secondary research, by way of using varied existing research papers, resources, reports, judicial precedents amongst others. 

REVIEW OF LITERATURE 

The article titled, Mediation in  Family and Matrimonial Disputes: A Critical Study, authored by Karthik Arora, enumerates varied suggestions on mediation. Moreover, the article gives an in depth analysis on the matrimonial disputes in India, and the role played by the mediator in resolving such disputes. The article finds mediation to be appropriate for divorce and for other cases of family law. The author identifies mediation to be a fruitful exercise, as he quotes on how mediation has also allowed couples to escape the possibility of the facing the court in matters of litigation. This also helps them in learning to understand as to how to resolve their future disputes. The author also explores the role played by the legal services authority in laying down the concept[t of arbitration, conciliation and mediation and agreement, as an alternative to the generally form of dispute resolution, which is approaching the court. The offences under section 498 of the Indian Penal Code, 1890, generally attract criminal sanctions and it is not compoundable. But the apex court had ordered that the parties could explore the possibility of bringing a settlement through mediation. 

The research paper titled, Judges of Normality: Mediating Marriage in the Family Courts of Kolkata, India , written by Srimati Basu,  is a classic piece where the author explores on whether there could be an enactment of a feministic reform, which could remove the agents, or the gaps which may be providing resistance to the feminist critiques on the topic of marriage. It aims to analyze on bringing forth a reform around marriage by profiling independent of a lawyer, and a mediation based family court in Kolkata. This article plays a crucial role. As Srimati Basu points out in her essay, family courts that prioritise alternative dispute resolution (ADR) have a highly skewed and conflicted understanding of marriage, divorce, the power dynamics that exist within marriage, the unequal distribution of resources, and the violence that is inflicted upon women.

The article “Family Mediation: Good for clients, good for lawyers” by Nancy S. Palmer and William D. Palmer explores the advantages that family mediation has on both clients and attorneys. It concentrates on the pros of family mediation over litigation, which include economy, confidentiality, and non-adversarial aspects among others. The authors also note that it is necessary to know more about how family mediation works in general context before discussing its possible applications beyond divorce (as well as prenuptial agreements, adoptions or custody or support modifications). Moreover, the paper considers such issues as gender bias in mediation. According to the writers, if conducted properly by experienced mediators it doesn’t hurt women but rather allows them to gain new strength and become more self-sufficient after conflict resolution. The authors underline the importance of lawyers’ appreciation of family mediation as well as its benefits to clients and legal professionals alike. This involves lawyers developing a practice centered around family mediation and understanding that one needs a proper training for certification in order to mediate family disputes effectively.

Richard E Crouch, through his article Divorce Mediation and Legal Ethics, explored about the substantive benefits of mediation, like how it avoids unnecessary hostility to how a mediation approach aids to avoid traditional two-attorney fight. Mediation, in the view of the author, touches on free advertising handled for most commonly two satisfied clients , unlike whereas the lawyer who “successfully” litigates a divorce or negotiates a separation agreement is very lucky if his one client goes away satisfied. One of the crucial aspects that the author focuses on being “what exactly would representation be?”. 

The author, Laurence Bouelle, by way of the article , ‘Minding the Gaps – Reflecting on the Story of Australian, touches  a trend in most jurisdictions (including the Study Jurisdictions), where certain identified areas such as family and matrimonial cases are understood to be as “mediate-able” cases.Legal systems all over the world have realised a pattern of such types of cases that should be specially labelled as type of proceeding that can be used more frequently in order to reduce the burden on the justice system. On the other hand, the Australian tribunals implemented a “referral criteria” to establish mediation feasibility instead. It is here that we are different from other nations. Apart from the UK, their history of geography gives another degree of cultural and historical uniqueness. When it comes to mediation referrals, for instance, the National Native Tribe Tribunal, which handles a lot of ownership and property issues because of the large number of aboriginal people, must evaluate the following: (i) the type of non-Indigenous title; (ii) its multiplicity with the same agent; (iii) its duration or timeframe; (iv) the size of the land area; (v) its extinguishment; or other conditions under which it exists; and (v) the kind of other circumstances that should come into the equation. When it comes to issue that substantive justice, judiciary power select the goals are consisted of the balance in justice standard.

The article “Mediation And Family Dispute Resolution Mechanism: “A Case Study On Clinical Legal Education” Outlines How Mediation is vital in the Conflict Resolution Process, authored by Ritu Gautam, Avinash Krishna Goswami and Pradeep Kulshreshtha, touches on how there is a paradigm shift in the Legal System Approach to Family Disputes Over the Two Last Decades. The writing does not only emphasize the use of mediation as a non judicial and alternative dispute resolution method, but also other factors such as the fact that mediation is flexible and speedy when compared to the use of other mechanisms of dispute resolution. Highlighting the mediation as another step to solving the family problems also the context is involved that Indian civil justice system has to face the burden of a huge number of cases. The authors demonstrate the journey of the FDRC, that is the leading example in India at 88 of success at the pre-FIR stage through explaining its procedure, methodology, and approach. The document details out the particular steps comprising the mediation system at the FDRC as well as unique features of the FDRC like day-night round the clock personalized strategy for each case, professionals from different fields and areas of expertise, and post-mediation follow up and wrap up. Moreover, it indicates an essential element of preventive accuracy in family conflict is explained, and the creation of a healthy environment is very important. Furthermore, many of the cases are free legal aid of the needy. The mentioned document also accentuates the supply of follow-up services after mediation has been concluded, resources utilisation and the unique mediative phase for conflict resolution. The article further analyses fairly effectively the role and importance of mediation in family disputes and lauds the FDRC which is based in India as among the most successful Family Dispute Resolution Clinics (FDRCs). It presents some useful advice, recommendations about techniques of increasing the share of family issues, which were resolved in court, and access to justice, attracting attention to the problems of current approach in dealing with family issues.

The article, Mediating Matrimonial Disputes in India: Trends from the Bangalore Mediation Centre, authored by Kritika Vohra, elaborates on the existing trends and challenges in mediating matrimonial disputes in India, throwing special light on the Bangalore Mediation Centre. The article highlights the historical relevance of the dispute resolution through alternative dispute resolution mechanisms in India. This paper also delves upon the challenges which are faced  while resolving matrimonial disputes through mediation and these includes:

  • inadequate training of the mediators
  • gender imbalances in the representation
  • prioritization given to the institution of marriage over the best interests of the individuals or the client in hand

Moreover, the paper features a chronology of key events about legal separation arbitrations, with a focus on important statutory and judicial interventions that have affected the structure of court-annexed mediation centres in India. It examines how gender, social obligations, economic reliance, education levels and presence of children influence the process of mediation and settlement rates. In addition, this write-up highlights what are seemingly non-starters in divorce matters and thus suggests the need to evaluate the effects of mediations on their parties. In sum, this paper is an all-inclusive analysis of trends, problems and factors that affect dispute resolution in India; stressing that an evidence-based approach is needed as well as reforms in court-connected mediation framework for efficient and fair dispute resolutions.

SUGGESTIONS 

  • Firstly, there is a need to establish a settled position on whether there is a need for pre-litigation mediation in India. This, has been taken up by the Madras High Court in  M/s. Micro Labs Limited V. A Santhosh and Junior Kuppanna Kitchens Private Limited v. Kuppanna Foods, in reference to the commercial litigation. Even in regard to the family law, there can be law on the pre-litigation mediation.
  • Mediators, should be provided training , in order to ensure that they are in a position to identify and handle the matters in a suitable manner. 
  • This needs to be brought to the attention of the public, as the ADR mechanisms are often mistook to be costly and thus awareness campaigns needs to occur, especially in reference to the families coming from the lower income strata as they possess less knowledge. 
  • All the members of the legal fraternity must participate and contribute for the advancement of mediation. These stakeholders include, advocates, judges, law students, law clerks, volunteers, individuals employed in judicial & quasi-judicial forums.  
  • It is advised that family mediators receive specialised training in areas such as domestic abuse recognition, mediation techniques, substantive family law, and rules and strategies to prevent power imbalances in mediation. 
  • Certain non-legal professions, such as mental health specialists, accountants, and clergy, may be qualified to act as certified family mediators, contingent on the requirements for certification.
  • In order to ensure that family mediators are capable of managing the intricacies of family conflicts and offering efficient mediation services, this training is necessary. 
  • Judge-led mediation, which is common in Singapore is a problematic topic because accreditation is not required. In fact, NADRAC has noted that it is improper for judges, judicial registrars, or other court officials to mediate cases through alternative dispute resolution (ADR) unless a formal mechanism of establishing impartiality or neutrality (as applicable) is established. This has been a contentious issue. There is still disagreement on this point. 

CONCLUSION

In conclusion, a wider assessment of mediation in family and matrimonial disputes in India has revealed various difficulties, patterns and elements touching on the dispute settlement process. The study established the significance of an evidence-based approach and reforms within court-connected mediation framework to enhance efficient and fair dispute resolution mechanisms. On one hand, the piece justifies the necessity to have a settled stand on pre-litigation mediation in India, while at the same time, there prevails a need to bring forth a comprehensive training for mediators so that they can handle issues effectively. 

In addition, this research focused on gender disparity with regard to representation; emphasizes on how the institution of  marriage is considered  more significant  than what is best for individuals; and insufficient training of mediators. It also examined historical context of the Indian alternative dispute resolution mechanisms that would be relevant to this area as well as challenges encountered while solving matrimonial disputes through mediation.

Moreover, it investigated the practical implications of family law mediation by stressing out that awareness campaigns should be conducted so that misconceptions concerning costliness of alternative dispute resolution methods should be eradicated particularly in cases where families are from low income backgrounds. Moreover, it underpinned specialized training for family mediators required such as domestic violence removals according.