Abraham Lincoln said; ‘discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.’
Mediation as a mechanism of 'Alternative Dispute Resolution' can be very effectively used. The litigation proceedings in respect of matters like family, divorce, maintenance and alimony or custody, the trial of Juvenile Offenders or any other matrimonial cause are seen in legal terms. They need to be viewed as a social issue requiring therapeutic approach. Winning or losing is not the prima facie concern in these cases. The important part here is an amicable settlement between people who are/were bound by family. Professional assistance in this area will help them to deal with their issues and resolve their differences. The activity of mediation appeared in very ancient times. The practice developed in Ancient Greece (which knew the non-marital mediator as a proxenetas), then in Roman civilization. (Roman law, starting from Justinian's Digest of 530–533 CE) recognized mediation. The concept of amicable settlement of disputes is not new to India. In olden days, the disputes were used to be resolved by Panchayat where elder people used to resolve the dispute. In “tales of Maryada Ramanna” people used go to a gentleman, who heard their disputes and settled amicably by applying common sense. The traditional 'Justice Delivery System' all over the world has come over burdened, due to explosion of litigation which necessitated again to search for 'Alternative Dispute Resolution' System. There are several reasons for this, such as urbanization and waning of non-judicial traditional dispute resolution institutions. This has resulted delay in disposal of cases. Mediation is a remedial supplementary process for amicable resolution of disputes between disputants within reasonable time with no additional costs. 'Alternative Dispute Resolution', began in industrial relations in Australia long before the arrival of the modern ADR movement. One of the first statutes passed by the Commonwealth Parliament was the Conciliation & Arbitration Act, 1904. This allowed the Federal Government to pass laws on conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. Since the early 1980s a number of institutions in South Africa have championed mediation. The Independent Mediation Service of South Africa (IMSSA) was established in 1984. In Canada, Codes of Conduct for mediators are set by professional organizations. In France, professional mediators have created an organization to develop a rational approach to conflict resolution. This approach is based on a "scientific" definition of a person and a conflict. In Germany, due to the Mediation Act of 2012, mediation as a process and the responsibilities of a mediator are legally defined. Within the United States, the laws governing mediation vary by State. LEGAL RECOGNITION OF MEDIATION IN INDIA Arbitration, as a dispute resolution process was recognized as early as 1879 and also found a place in the Civil Procedure Code of 1908.
The concept of mediation received legislative recognition in India for the first time in the Industrial Disputes Act, 1947. The conciliators appointed under Section 4 of the Industrial Disputes Act, 1947 are "charged with the duty of mediating in and promoting the settlement of Industrial disputes.” Detailed procedures were prescribed for conciliation proceedings under the Act.
There are several provisions in the legislation that provides for conciliation and settlement before litigating in the Court.
Section 89 of Civil Procedure of Code, 1908 and Order XXXII-A of the Code of Civil Procedure, 1908 focuses on judge's role in attempting a reconciliation. provides for 'Alternative Dispute Resolution' mechanism to be followed in the cases where there is a possibility of a settlement. Mediation is one of such techniques prescribed in Section 89 for reaching an amicable solution. However, under this section consent of both parties is necessary and many times in matrimonial disputes one party is unwilling to go for mediation.
In Section 23 (2) and 23 (3) of the Hindu Marriage Act, 1955, the Court is directed to try reconciliation between the divorce-seeking parties, depending upon the nature and circumstance of a case. Same is laid down in Section 34 (3) and 34 (4) of the Special Marriage Act, 1954 making reconciliation as the option to be opted by Court at first instance in divorce cases.
Family Courts Act, 1984 obliged the Courts to try and bring about a settlement in the family disputes if possible.
The Indian Legislature made headway by enacting 'The Legal Services Authorities Act, 1987' by constituting the National Legal Services Authority as a Central Authority with the Honb'le Chief Justice of India as its Patron-in-Chief. The Indian Parliament enacted the Arbitration & Conciliation Act in 1996, making elaborate provisions for conciliation of disputes arising out of legal relationship, whether contractual or not, and to all proceedings relating thereto. In 1999, the Indian Parliament passed the CPC Amendment Act of 1999 inserting Section 89 in the Code of Civil Procedure 1908, providing for reference of cases pending in the Courts to ADR which included mediation. The Amendment was brought into force with effect from 1st July, 2002. Section 89 provides for Arbitration, Conciliation, Judicial Settlement through Lok Adalat and Mediation. These methods help in quick disposal of the cases and less expensive, time-saving and reduces the burden of the Courts. On the basis of the report submitted by the Hon'ble Justice Jagannath Rao Committee (which was issued by the Hon'ble Supreme Court after Salem Advocates Case No.1, 2002), wherein, the Hon’ble Supreme Court of India stated the modalities to be followed.
In India, a family is considered as the basic unit of society and marriage as the most important relationships within family influencing morality and civilization.
Problems in Matrimonial Disputes
In matrimonial disputes, what are the real problems that confront a divorcing couple? Begin with the definition of divorce. Black Law Dictionary defines divorce as “a complete legal dissolution of a marriage”. Interestingly, however, marriage has a much broader definition. Brittanica – Webster defines marriage as “the institution whereby a man and a woman are joined in a special social and legal relationship for the purpose of making a home and raising a family.”
Thus, it is interesting to see that marriage is viewed as a legal and social union of two people, however, divorce is merely viewed as the legal termination of said marriage. These definitions in and of themselves highlight one of the basic problems that occur when a couple chooses to divorce. Namely, although the legal system is equipped to deal with the legal problems to divorce. Namely, although the legal system is equipped to deal with the legal problems that the couple faces when divorcing, it does not address nor it is equipped to deal with the social and emotional issues that confront the couple.
Once the emotional or social issues are dealt with, it makes the resolution of the legal issues much easier. Taking it a step further, what most people are arguing about is not legal or financial issues, but rather arguments fuelled by their desire to get some form of revenge for a perceived wrong by the other spouse. Mediation cuts the price and the long process of litigation. It is a confidential and ethical process and does not harm the sentiments of either party.
Mediation in Divorce Cases
Marriage holds a very sacred concept and is an ideal pre-requisite to bringing a family into its existence. Also, Marriage is a child-centric heterosexual institution in our society. However, if marriage as a unit breaks down, then adjustment of various relations is required rupturing the usual structure and peace of the family. So, the family laws and Courts mostly encourage in matrimonial disputes for reconciliation and settlement by amicable agreement instead of litigating in Courts. [G. V Rao v L. H. V. Prasad, (2000) 3 SCC 693]
Now comes the question “What is mediation?”
Mediation is a settlement process in which either parties or Courts appoint a mediator who helps both the parties on reaching an amicable solution or agreement. Mediator is a neutral third person who helps parties to compromise by facilitating discussion between the parties: directly, by helping them in communication, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options to solve the dispute and emphasizing that it is the parties’ own responsibility for making decision which affects them; without imposing any terms of settlement on either party. [The Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003]
The same functions Court asked to follow if Mediator is someone who after the parties play a major role in settling the dispute. Therefore, in a whole mediation process, the role of a mediator is of great significance. The basic difference among the Police, the Judge and the mediator is that, the Police is trained to frame or prove a charge, a Judge is to focus his attention on right or wrong doing but a mediator / counselor is to focus on restoration of equilibrium and remain non-judgmental all through. The mediator remains on guard against his temptation to belittle or give lift to one or other party.
India is a common law country that follows an adversarial system of justice. In recent years, the role of the judiciary has expanded and has become more complex in nature. The increasing role of the judiciary has resulted in huge expenditures and undue delays in delivering justice to the seeker of justice. The number of courts has increased the recent years, but the problem still exists because of the likewise increase in the number of cases.
One of the methods to deal with the problem of increasing number of cases is, resolving disputes through the method of arbitration. 'Alternative Dispute Resolution' shows the importance of Article 21 of Constitution of India, which stands for right to life, includes right to have a speedy trial. By adopting arbitration methods, one can have an efficient and timely disposal of his dispute.
Effectiveness of mediation proceedings
The growing cost of civil litigation and the excessive delays in dispensing judgments is causing a huge backlog of cases in courts. Mediation, as an alternative remedy has proven to be successful and effective in many situations. Currently, mediation has grown up to be the most preferred way of alternative dispute resolution, especially amongst foreign entities. The reasons include less expenditure and informal and flexible rules. Mediation is often used as the first step to resolve any dispute and failing any resolution under mediation, parties agree that disputes will be referred to arbitration. Now most commercial contracts first refer the dispute to mediation, and if the proceedings are not successful, then the matter is referred to arbitration.
In words of Justice Markanday Katju, [B. S. Krishna Murthy & Anr. Vs B. S. Nagaraj & Ors., S. L. P (Civil) No. (s) 2896 of 2010], ‘In our opinion, the lawyers should advise their clients to try for mediation for resolving the disputes, especially where relationships, like family, business, are involved. Otherwise, the litigation drags on for years and decades often ruining both the parties. Hence, the lawyers as well as litigants should follow Mahatma Gandhi’s advice in the matter and try for arbitration/mediation. This is also the purpose of Section 89 of the Code of Civil Procedure.’ The dispute in the case was between brothers, and they were directed to appear before Bangalore Mediation Centre for resolution of the dispute. In a very recent case titled ‘Aviral Bhatla Vs Bhavana Bhatla’, 2009 (3) SCC 448, the Supreme Court has upheld the settlement of the case through the Delhi mediation centre, appreciating the effective manner in which the mediation centre of the Delhi High Court helped the parties to arrive at a settlement.
In 2013, Supreme Court in the case of ‘K. Srinivas Rao V D. A. Deepa’, AIR 2013 SC 2176 opined that even in criminal non-compoundable cases where parties want to settle should be sent for mediation, making it necessary for divorce cases to have mediation if there is a scope of the settlement between parties. It also ordered all mediation centres to have pre-litigation disks/clinics and publicise it amongst the masses so that matrimonial disputes can be solved without reaching the stage of the litigation.
In the case of ‘Gaurav Nagpal vs Sumedha Nagpal;, AIR 2009 SC 557, the Hon’ble Supreme Court observed: ‘It is a very disturbing phenomenon that large numbers of cases are flooding the courts relating to divorce or judicial separation. The provisions relating to divorce in HMA categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Efforts should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings. People rushing to courts for breaking up of marriages should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving of marriage and not breaking it. As noted above it is more important in cases where the children bear the brunt of dissolution of marriage.’
With the changing scenario, a number of cases involving matrimonial disputes are coming forward. The number of petitions involving such disputes leads to a judicial backlog. 'Alternative Dispute Resolution' provides for a legal structure for resolving issues involving private parties. Matrimonial litigation is disproportionately burdensome to our Courts. Marriage in India is considered as a sacrament and not a contract. Mediation is a mere facilitator that helps the parties to reach for a settlement in dispute. Here parties get more flexible because of the friendly environment unlike courts, which are not so friendly in nature, it is free from complex procedures, easy to understand and, therefore, parties cooperate pleasantly. Mediation serves as very helpful dispute mechanism in the case where, divorce is due to cruelty, unsound mind, some communicable or dangerous diseases etc. in cases like these, such matter can be communicated and confessed easily and effectively because their confessions will not go outside the room. It is a private and confidential mechanism, unlike Courts which are open to the public. Mediation provides the best platform in divorce cases as it helps parties in arriving at a settlement peacefully.
Divorce is a potential minefield in terms of the impact it can have on the parties, their children and their extended families. Getting divorced is one of the most painful events in one’s life, and if not handled carefully and sensitively, it could lead to severe distress. For children, the divorce of their parents can be devastating, particularly if the intensity and duration of parental conflict is high. The legal system should aim to minimize the possibly traumatic fallout of a divorce. When parties approach the courts in matrimonial matters, their emotional scars are often deepened by the adversarial process; parties are unable to voice their emotional grievances and there is not much scope for empathy. Lawyers need to highlight the other side’s faults, leading to a rupture in communication between parties and hardening of 2 parties and their families could end up enduring high levels of stress and hostility for considerable periods. Healing the scars As a couple faces the rupture of their most intimate relationship, the appropriate dispute resolution mechanism would re-open their channels of communication, explore their misunderstandings, investigate if there is any life left in the marriage and examine if the divorce petition is merely a ploy to teach the other spouse a lesson. Where vows have been taken ‘until death do us part’ and sacred knots have been tied, and unforeseen circumstances occurred leading to divorce, the couple faces a number of complex decisions. How can lifestyles be sustained and how are assets divided? How best can the children be cared for? An adversarial setting could be counter-productive for exploring such issues. Mediation can help explore the core interests and concerns of the parties and find creative options that maximize the welfare of both the parties and their children. We are too hung up on being right that we don't realize the true goal in resolving conflict. Being the winner of a fight isn't going to help the relationship at all. Coming to even ground and understand the other person's point of view can help the two of you figure out how to correctly solve whatever the issue is. The goal of resolving conflict in a relationship is not victory or defeat. It's reaching understanding and letting go of our need to be right.