This article has been written by Pandey Sumit Vijay, a law student from Amity Law School, Lucknow.
ABSTRACT
Family-related conflicts are complex, sensitive, and frequently difficult for the legal system to handle fully. The effectiveness of mediation as an alternative dispute resolution process to lessen the load on the court system and encourage peaceful, long-lasting remedies to family disputes is examined in this abstract. A neutral third party, the mediator, assists contending parties in achieving a mutually agreed solution. Mediation is a voluntary, confidential procedure. Mediation provides a collaborative and adaptable approach to family disputes, addressing a wide range of issues including property distribution, spousal support, divorce, and child custody. It has been demonstrated that mediation gives participants greater control over the process by allowing them to actively develop their own solutions, promote communication, and maintain relationships—all of which are vital in family dynamics. The report also looks at how using mediation to settle family disputes may greatly lessen the burden on the courts. Mediation reduces court backlog, lowers litigation expenses, and maximizes judicial resources by rerouting cases from the traditional court system. This change guarantees that families have a quicker and more affordable settlement procedure while allowing the judiciary to focus on more difficult issues. Policymakers, solicitors, and members of the public are urged to acknowledge that mediation has the capacity to improve the general well-being of families dealing with difficult situations in addition to relieving the court’s workload. The results highlight the significance of elevating mediation to the forefront of family law conflict resolution, therefore fostering a more effective, fair, and empathetic legal framework.
Keywords: Mediation, Family Related Disputes, Judicial, Policy maker, Litigation
INTRODUCTION
“Mediation is an Alternative dispute resolution in which the parties voluntarily come to a settlement with the assistance of the skills of negotiation and communication that the third party possesses and then puts a decision into writing, which becomes a contract”. In an era marked by increasing complexities in legal disputes and a growing recognition of the importance of alternative dispute resolution mechanisms, the Mediation Bill of 2023 emerges as a significant legislative initiative poised to reshape the landscape of conflict resolution. Mediation through Panchayats has long been used to resolve communal conflicts and is still widely preferred. “Mediation became less popular during British control, resulting in more disagreements and delays in the adversarial court system. Section 89(1) of the Code of Civil Procedure, 1908, authorizes courts to recommend arbitration, conciliation, judicial settlement, or mediation for conflict resolution. This is widely recognized and adopted by the courts. Mediation centers have been established across India. Despite this, private mediation lacked structure and legal legitimacy, which discouraged participation. To remedy this, the Mediation Bill 2021 was suggested to improve mediation’s efficacy while also providing a thorough legal framework”. ‘Under the Act, Mediation is defined expansively to include any process where parties request a third person (mediator) to assist them in reaching an amicable settlement and includes (a) pre-litigation mediation; (b) online mediation; (c) community mediation; (d) conciliation; or any other expression having a similar meaning’. “Mediation is a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in reaching a settlement. A mediator does not impose a solution but creates a conducive environment in which disputing parties can resolve all their disputes. Mediation is a tried and tested alternative method of dispute resolution. It has proved to be a great success in the cities of Delhi, Ranchi, Jamshedpur, Nagpur, Chandigarh and Aurangabad. Mediation is a structured process where a neutral person uses specialized communication and negotiation techniques. Litigants participating in the mediation process have unequivocally endorsed it”. The role of the mediator is to assist the parties to a dispute in coming to a voluntary agreement. This entails helping them pinpoint the issue, enhancing their comprehension of the circumstances, highlighting the crucial elements, investigating possible agreements, and reiterating that they have the last say over any claims they make. “Importantly the mediator must not force a resolution upon the parties or guarantee that mediation will lead to a settlement”. The mediation process must be completed within 120 days from the mediators first appearance, but this can be extended up to 60 days if both parties agree. “The Mediation Bill, 2021 was tabled in the Rajya Sabha on 20 December 2021 and was referred to the Standing Committee on Personnel, Public Grievances, Law & Justice for review on 21 December 2021 (“Standing Committee”). The Standing Committee issued its 117th Report on the Mediation Bill (“Report”) making certain recommendations to the provisions on 13 July 2022. The Union Cabinet approved some of these recommendations and the Mediation Bill 2023 (“Mediation Bill”) was passed by the Rajya Sabha on 02 August 2023 and by the Lok Sabha on 07 August 2023. The Mediation Bill received presidential assent on 15 September 2023”, to be known as the “Mediation Act 2023”.
HISTORICAL EMERGENCE OF MEDIATION
Mediation In India
In the past time, it was customary in our community to get together and conduct talks to settle disputes amongst relatives. When issues raised at the village level were often also brought before the panchayats, which heard arguments from both sides before making a judgment. Also, Members of family who disagree might try to resolve their disagreements via discussion and the mediation process rather than going to court. It is impossible to stress the significance of sustaining family peace and harmony.
Mediation In United States of America
The notion of mediation originated in California, which was the first place in the US and the globe to explicitly acknowledge mediation as a court function. ‘O.J. Coogler’, an ‘Atlanta lawyer’, made a significant contribution by structuring the mediation process such that it could be readily copied and taught. By the end of the 1980s, the technique had expanded throughout America and beyond due to its structure. “The creation of a mediation structure and format allowed the process to be used and altered beyond divorce and family affairs to a variety of different dispute situations, and the core of the model is still in use today”.
Mediation In Israel
“Around 960 B.C., in ancient Israel, the king Solomon served as a go-between for two ladies. This is the most well-known childhood conflict in history”. In this instance, two ladies disagreed about child custody. King Solomon intervened and suggested an equitable solution for both ladies. Because of this neutral approach to dispute resolution, a mediator is practically essential in cases settled outside of court. This shows that the practice of mediator was started early in Israel also.
Mediation In China “Confucius was a philosopher who believed that respect for one another was more essential than the supremacy of the law and the disputes that arise from it. Some experts believe China strongly promoted mediation during its rule from 551 to 479 B.C.” The philosopher suggested that ethical restoration was the most beneficial method for resolving disputes. Confucius felt, however, that the arguing parties must willingly consent to this reunion. For thousands of years, mediation has served as one of the most widely utilized methods for resolving disputes in China.
MEDIATION IN THE CASE OF DOMESTIC VIOLENCE
Mediation in the context of domestic violence involves ethical and practical challenges. Domestic violence is a serious and sensitive subject with a balance of power and safety considerations. Traditional mediation, where both parties voluntarily get together to discuss disputes with a neutral third party, may be insufficient or unsafe when dealing with situations involving domestic violence. To address such issues, several jurisdictions have set up trained mediation programs or altered the mediation procedure. Here are some concerns for using mediation in situations of domestic abuse.
Specialized Domestic Violence Mediation Programs:
Some jurisdictions have established trained mediation programs for circumstances involving domestic violence. These programs frequently involve a professional mediators who are experienced in dealing with power imbalances and safety problems.
Screening and evaluations:
Before initiating any mediation process in situations involving domestic violence, extensive screening and evaluation protocols should be in place. This helps determine if mediation is suitable, taking into account the parties’ safety and well-being.
Consent that has been informed:
It is essential to acquire informed consent in cases of domestic violence. The nature of the mediation process, its constraints, and the parties’ ability to withdraw at any moment should all be clearly understood by the parties. This is to guarantee that consent is given voluntarily and not under duress.
Legal representation:
Parties in domestic violence circumstances should have access to legal representation. Legal professionals can safeguard their clients’ rights and ensure that any settlements agreed during mediation are fair and just.
Establish Safety Measures:
Mediation sessions should be conducted in an environment that is secure and safe. This may involve separate sessions, shuttle diplomacy (in which the mediator goes between the parties), or additional precautions to avoid possible harm.
CONFIDENTIALITY AND PRIVACY:
In order to protect the parties’ privacy and safety, strict confidentiality measures should be implemented before and after mediation sessions.
Compliance with Applicable Law:
Mediation techniques in domestic violence circumstances have to conform to relevant laws and regulations. This includes implementing orders of protection and other legal processes that are in place that guarantee survivors’ safety.
It is essential to proceed with the greatest caution when employing mediation in situations of domestic abuse, putting survivors’ safety and well-being first. Mediation should not be viewed as a replacement for the legal system’s protective mechanisms, but rather as a complementary option with adequate protections in place.
Key features of Mediation bill 2023
Section 89 of the Code of Civil Procedure,1908, protect the idea of alternative dispute settlement. The Arbitration and Conciliation Act, 1996 and the Legal Services Authority Act, 1987 appropriately codify the other platforms for alternative conflict resolution, which include arbitration, conciliation, and Lok Adalat. These platforms have also seen substantial development and evolution. But as of late, the government has passed the Mediation Act, 2023, in an effort to encourage and ease the use of mediation as a means of resolving conflicts. The Standing Committee on the Mediation Bill released its 117th Report on July 13, 2022, with several recommendations for improving its provisions. Consequently, on August 2, 2023, the Rajya Sabha and the Lok Sabha passed the Mediation Bill 2023.
The Act consists of 65 Sections and ten schedules. And the key and salient features of the Act can be categorised as follows:
Section 2. “This Act shall apply where mediation is conducted in India, and— (i) all or both parties habitually reside in or are incorporated in or have their place of business in India; or (ii) the mediation agreement provides that any dispute shall be resolved in accordance with the provisions of this Act; or (iii) there is an international mediation; or (iv) wherein one of the parties to the dispute is the Central Government or a State Government or agencies, public bodies, corporations and local bodies, including entities controlled or owned by such Government and where the matter pertains to a commercial dispute; or (v) to any other kind of dispute if deemed appropriate and notified by the Central Government or a State Government from time to time, for resolution through mediation under this Act, wherein such Governments, or agencies, public bodies, corporations and local bodies including entities controlled or owned by them, is a party”.
Section 3. “In this Act, unless the context otherwise requires,— (a) “commercial dispute” means a dispute defined in clause (c) of sub-section (1) of section 2 of the Commercial Courts Act, 2015; (b) “community mediator” means a mediator for the purposes of conduct of community mediation under Chapter X; (c) “Council” means the Mediation Council of India established under section 31; (d) “court” means the competent court in India having pecuniary and territorial jurisdiction and having jurisdiction to decide the disputes forming the subject matter of mediation, if the same had been the subject matter of a suit or proceeding; (e) “court-annexed mediation” means mediation including pre-litigation mediation conducted at the mediation centres established by any court or tribunal; (f) “institutional mediation” means mediation conducted under the aegis of a mediation service provider; (g) “international mediation” means mediation undertaken under this Act and relates to a commercial dispute arising out of a legal relationship, contractual or otherwise, under any law for the time being in force in India, and where at least one of the parties, is— (i) an individual who is a national of, or habitually resides in, any country other than India; or (ii) a body corporate including a Limited Liability Partnership of any nature, with its place of business outside India; or (iii) an association or body of individuals whose place of business is outside India”.[1]
Section 9. “The mediation service provider shall, while appointing any person from the panel of mediators maintained by it, consider his suitability and the preference of the parties for resolving the dispute”.[2]
Section13. “Every mediation under this Act shall be undertaken within the territorial jurisdiction of the court or tribunal of competent jurisdiction to decide the subject matter of dispute: Provided that on the mutual consent of the parties, mediation may be conducted at any place outside the territorial jurisdiction of the court or tribunal, or by way of online mediation”.[3]
JUDICIAL DECISIONS
The court encourages parties to use a number of historic decisions for mediation. A few of these decisions are as follows:
“In the case of Dr. Jaya Sagade v. The State of Maharashtra SOM.PIL.104/2015-DB, a bench comprising of Hon’ble Chief Justice Mohit Shah and Justice RS Dalvi set aside the circular circulated by the state government that prohibited mediation and counseling in domestic violence cases without the court’s permission. The Court additionally ruled that a victim must be advised of her legal options and guided as to her rights under the Act and that she must not be under any pressure to resolve her claim or grievance”.[1]
“Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005) 6 SCC 344, is a landmark judgment in the history of the Indian Judiciary. The foundation for delivering prompt, just, and affordable justice has been established by these two instances, the first of which established amendments and the second of which provided a report on the viability of the amendments. In essence, this aims to lower the number of lawsuits submitted to the courts each year. Following the revisions made by the Act of 1999 and 2002, the case has been cited in many civil proceedings. Additionally, the model suggested for the trial court to use is simply implementable and does demonstrate “the bright light of proper and fast justice in the darkness of numerous cases.” The guidelines stated in the model should be strictly adhered to since they are suitable for the Indian judicial system”[2]
“In the case of Manas Acharya v. State & Anr CRL.M.C. 2090/2012, the court took a position that was even more supportive of mediation, emphasizing that any settlement reached through mediation or decision made by the mediator is legitimate and legal and that any decision made during the mediation process is binding on both parties”. [3] “In the case of B. S Joshi & Ors v. State of Haryana & AnrAIR (2003) SC 1386, the court held that by using the authority granted to the court by Section 482 of the Criminal Procedure Code, the High Court may decide to halt the criminal proceedings. The Supreme Court received a petition for appeal on it. The wife filed an FIR against the husband but afterward claimed that there was no such issue in their relationship and that the FIR was submitted rashly and without thought. Therefore, the Supreme Court has ruled that courts should support or encourage mediation or reconciliation, particularly in matrimonial disputes of this nature.
CONCLUSION
In conclusion, the advantages of mediation in family-related issues are manifold, and the impact of these benefits cannot be overstated. The ability of mediation to provide a confidential and private setting for parties to discuss their issues is a fundamental aspect of its effectiveness. Unlike court proceedings, which are public, mediation allows families to address sensitive topics without the fear of public disclosure, thereby safeguarding their privacy and maintaining the confidentiality of their personal matters.
Furthermore, the empowerment and control that mediation affords to the involved parties are essential components of its success. By actively participating in the mediation process and reaching a mutually agreeable settlement, individuals are more likely to adhere to the terms of the agreement, as it reflects their own choices and preferences. This sense of ownership over the resolution process can lead to more sustainable and enduring agreements, particularly in the context of family disputes, where the outcomes can have a profound and lasting impact on the lives of those involved.
Mediation offers a more accessible and less expensive option for families seeking to resolve their disputes without incurring exorbitant expenses, while also providing a time-bound process that can help mitigate the emotional strain and uncertainty associated with prolonged legal battles.
Moreover, the potential of mediation to preserve relationships is a critical consideration in the realm of family law. By fostering a collaborative approach to resolving disputes and promoting mutual understanding, mediation can help mitigate the emotional toll of family disputes and lay the groundwork for healthier interactions in the future. This emphasis on relationship preservation and long-term results makes mediation a valuable and transformative method of dispute resolution in the context of family-related issues. In summary, the holistic and effective approach offered by mediation in family-related issues, from its emphasis on confidentiality and empowerment to its cost-effectiveness, time-efficiency, and relationship-preserving nature, underscores its significance as a preferred method of resolving family disputes. By providing a supportive and private environment for parties to address their concerns and reach mutually agreeable solutions, mediation has proven to be a valuable and transformative method of dispute resolution in the realm of family law.
Refrences
- https://ibclaw.in/mediation-act-2023-section-wise-bare-act/
- http://Nishithdesai.com
- http://Prsindia.org
- Dr. Jaya Sagade Vs the State of Maharashtra SOM.PIL.104/2015-DB,
- Salem Advocate Bar Association, Tamil Nadu V. Union of India, (2005) 6 SCC 344 [1]
- Manas Acharya Vs State & Anr, CRL.M.C. 2090/2012
- B. S Joshi & Ors Vs State of Haryana & Anr, AIR (2003) SC 1386