‘Family’ is a body of law regulating relationships like marriage, treatment of children and economic matters, also being the functional unit of society. According to a UNESCO report, ‘family’ is a kinship unit existing even when its members do not share a common household[1]. A family may be defined as a unit of two or more persons brought together by marriage, blood, adoption, consensual union, in a single household interacting with each other.[2] In the wider sense, ‘family’ is a unit which comprises people living under the same roof unless because of any work, confinement, imprisonment, study or any other inevitable task.
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Mediation
Mediation is a process related to Alternative Dispute Resolution to settle disputes outside the court, which is generally settled by a trained person (mediator) who helps the parties settle their disputes without reaching out to the court. Mediation could be done either when the suit is pending in the court or before the filing of the suit in the court. It is a non-binding procedure which is solely dependent on the parties through an agreement regarding the same.
A mediator is a patient person with some special training which helps the parties to reach mutual satisfaction but, unlike a judge, a mediator is not a decision maker and his decisions are not binding if either of the parties is not satisfied with the outcome of the case, nor can the mediator force the parties to follow the decision rendered by him. The Arbitration and Conciliation Act, 1996 and the Code of Civil Procedure, 1908 mark out the duties of mediators to never impose settlements, maintain confidentiality and avoid improper conduct. The PIMS[3] rules also impose particular ethical duties on mediators. Moreover, before the commencement of the mediation process, the mediator has to consider certain issues:
- The mediator must ensure that he/she does not have any personal interest in the dispute between the parties, and if there is any then he/she must immediately withdraw from the case..
- An agreement of confidentiality must be signed between the mediator and the parties.
- The fees and other expenses of the mediation process must be pre-decided by the parties.
Historical Aspects
The process of mediation has been in practice for a long time. Before British rule, communities used to resolve their disputes by taking them to the panchayats, the sarpanch being the head assisting the parties to negotiate a settlement.
Commercial mediation in India started in 1996 when the Indian Parliament amended the Code of Civil Procedure, 1908 and introduced Section 86[4] which gave power to the court to direct suits to settle by mediation. The Arbitration and Conciliation Act was also introduced in the year 1996, the provisions of which governed private mediation in India.
Role of Mediation in Family Disputes
The process of mediation in family-related matters serves a predominant role as family disputes are not only a matter of fact or matter of law but a matter of emotions and feelings too. The main focus of this process is to tie back the bonds which were broken rather than to tear them apart in a go, unlike in courts where the focus is to decide in favour of any one party which may not necessarily sustain the relationships of the parties.
Moreover, the Family Courts Act, 1984[5] and Section 89 and Order XXXII of the Code[6] make it incumbent on the behalf of courts to give a chance to negotiate a settlement before the decision of the court. Further, Section 23 of the Hindu Marriage Act, 1955 focuses on settling the dispute first. The Commercial Courts Act, 2015 also covers mediation under which the parties must exhaust the remedy of mediation before instituting any suit before the court.
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The most suitable and desirable way of resolving a family dispute is by the process of mediation by catering to the needs of both parties and providing satisfaction on their terms without the involvement of any third party. Moreover, the needs and perceptions of both the parties are kept in mind and a negotiation is initiated which often resolves the dispute without taking it to the court.
Divorce is one of the leading causes of family disputes. According to a recent census, in India, about 1.36 million people are divorced and by a clear estimation it is calculated that 0.5 marriages end up in divorce and for that, people prefer to file suits in family courts. Due to the growing number of divorce cases, there are many suits piled up in courts which leads to delayed judgment due to the parties having to suffer. The desirable option for alternative dispute resolution is mediation in the aforesaid cases. But the process of mediation has some disadvantages too:-
- The opposite party may not cooperate in the process of mediation.
- If any of the spouses is not ready to resolve the issue through mediation he/she cannot be forced to attend them.
- Without any formal proceeding, the spouse may also threaten the other party.
Though there are some disadvantages mediation is a better choice than formal proceedings of courts for resolving divorce disputes as generally the suits in courts end up in the separation of the spouses but in most of the cases which take the help of mediation end up being together by settling based on some negotiations and understanding.
Advantages of Mediation in Family Disputes
- The foremost advantage of switching to mediation instead of courts in family disputes is the confidentiality of the information of parties. If any of the parties to the dispute opt to keep certain facts confidential, then the mediators cannot compel them to disclose such facts, which is unlikely in court proceedings because where the parties have to be very certain about every fact and have to provide information which the court asks for to adjudicate on the dispute.
- It is less stressful than the bothersome environment of courts, as it is generally organized in a room or mediator’s office. The atmosphere being so appeasing is less likely to cause hassle among the parties and allows them to feel free to talk about their issues. Especially in family law cases people often need some privacy to explain certain facts and are uncomfortable to open up in front of other people as marriages and family have several personal facts revolving around the issue.
III. Courts decide the matters based on facts and law which is mostly unfitting for the parties whereas in mediation the mediator must look upon not only factual matters but also the emotional aspects of the parties because, in family disputes, matters are less about the facts and more about the emotions of the parties.
- Generally both the parties of the disputes are satisfied from the result of mediation because it is more about the satisfaction and settlement of both parties and not only one. People negotiate on their terms which are assisted and moulded by the mediator and are well pleased by the parties, unlike in court proceedings.
Conclusion
Globally, alternate dispute resolutions are leaping resolving disputes. Even many business conglomerates are adopting this mode of resolution rather than switching to formal proceedings of the court owing to several reasons. Mediation, conciliation, arbitration and judicial settlement are becoming the preferred mode to settle disputes because they are less time-consuming and inexpensive. Though the technique used by mediators may vary from case to case yet once he/she is well versed with the facts and information he may assist the parties to an extent where they may negotiate and settle for the benefit of their relationship. Therefore every authority is now focused towards making mediation popular among the people so they can get easy settlements with trained mediators.
Especially in family matters where privacy is the main concern, mediation is the best option for parties so that any third party does not invade their privacy and the dispute is settled without any external interference.
Marital disputes are the most confidential ones, so these are advised to be solved through mediation as the mediator only has to communicate the result of the mediation, not the proceedings, which keeps the facts confidential. Because most of the issue of family disputes arises either due to a spouse’s extramarital affair, excessive alcohol consumption, problematic in-laws or psychological aggression (verbal aggression and nonverbal aggressive behaviours that are not directed at the partner’s body), these issues have to be dealt with proper confidentiality and with emotions for which mediation serves the purpose well.
REFERENCES
[1] UNESCO Principal Regional Office for Asia and Pacific. Bangkok, Thailand: UNESCO.The changing family in Asia: Bangladesh, India, Japan, Philippines and Thailand, 1992.
[2] Sonawat R. Understanding families in India: A reflection of societal changes. Psicologia: Teoria e Pesquisa. 2001;17:177–86.
[3] The Commercial Courts (Pre-Institution Mediation And Settlement) Rules, 2018.
[4] Code of Civil Procedure, 1908 (Act 5 of 1908).
[5] The Family Courts Act, 1984 (Act 94 of 1984), s 9.
[6] Code of Civil Procedure,1908 (Act 5 of 1908).
BY DAMINI SINGH | JAIPUR NATIONAL UNIVERSITY