INTRODUCTION

Mediation is the upcoming trend in the resolution of the family disputes which is most effective and has thus helped in reducing the burden on the Courts as well, since the Family Disputes are lengthy and it consumes a lot of time in conducting the cases especially for concluding the evidence and other documentary evidence.

Mediation simply means to resolve the dispute between two conflicting parties with the help of a third neutral person between them. Such arrangement helps the parties to vent out the differences in a peaceful manner before a Mediator who is equipped with such skills. In more than 90% of cases, the matters have reached in amicable settlement when mediation has been resorted to during the matrimonial or family disputes between the husband and wife or say between the wife and the in-laws family. Below points would through light on the effectiveness of the Mediation in the Family Disputes.

MEDIATION FOR FAMILY DISPUTES

1. COST AND TIME EFFECTIVE: Mediation is the less expensive and less time consuming way to resolve the disputes between two parties. The relation of husband and wife is a very sensitive relation and the more it is stretched, more sourness increases between the parties. Mediation helps to reduce the time taken to settle the dispute either ways and where a child is involved in such disputes, it is recommended that the parties to the litigation do not drag the child into the litigation as that would have a very bad impact on the mental health and growth of the child. Further, litigation is always expensive because of the multiplicity of cases involved in such kind of disputes which are filed now a days by both the parties against each other for creating pressure on the other party thus, when mediation is resorted, all these multiple litigation started by the parties can be settled once and for all in the mediation.
2. CONFIDENTIAL INFORMATION MAINTAINED: Confidentiality holds paramount importance during mediation in dispute settlement for family matters. The need for confidentiality has also been raised by various Courts while dealing with the cases related to matrimonial disputes as well. Thus it is necessary that the Online Lawyer one selects understand this important aspect of the case when it comes to seeking legal advice online. The Supreme Court in the case of Moti Ram (D) Through LR’s & Anr. versus Ashok Kumar & Anr. (2011) 1 SCC 466 has stressed that the proceedings for mediation are to remain strictly confidential, and if successful, the mediator should send the settlement agreement signed by the parties without giving details or mentioning as to what happened during the mediation proceedings and whatever talks go on inside the four walls of the mediator room stays confidential between the three parties involved in the mediation i.e. the mediator, the petitioner and the respondent. The Courts have also stressed upon the idea of keeping the information confidential even if the mediation between the parties have failed. In such a scenario as well, the Mediator merely has to mention that there can be no conciliation at this stage and refer the case back to the Courts for adjudication on merits of the case. Seeking the right legal advice online is the first key to ensuring a successful mediation process. The Central Information Commission was dealing with one such matter in the case of Rama Agarwal v. PIO CIC/SA/A/2015/000305, wherein it was held that the information regarding the Mediation proceedings cannot be supplied taking recourse of Right to Information Act, 205 since the same is protected under the Act as an exception. The CIC further observed that “Information regarding negotiation, mediation, conciliation and counselling will fall under exempted clause of information of another spouse, being personal and given in fiduciary capacity and, no public interest is established in disclosure, while there is larger public interest in protecting that information as that would help mediation to flourish, hence such information shall not be disclosed.”
3. NO STRICT PROCEDURE: Since in a mediation proceedings, it is the Mediator who presides over the meetings, it is the Mediator who decides to proceed in a procedure more comfortable and flexible to him. No Civil Procedure or Criminal Procedure is required to be applied on the mediation proceedings. This makes the process very easy and hassle free and the freedom which a mediator enjoys makes the proceedings easy for the mediator to carry on.
4. MISCELLANEOUS: Besides the above benefits, such kind of dispute resolution result not only in speedy disposal of cases but it also helps the couple to get counselling at the appropriate stage and remedy the relationship into a healthy one because the indirect counselling resulting in the success of mediation whereby parties decide to forego the criminal proceedings as well gives a sanctity to the marriage in a way that the family is not fallen apart. Furthermore, the Courts have been compounding the offences which are non-compoundable i.e. the offence of Section 498-A. The High Courts in India have been quashing the FIR in such cases in the interest of justice by invoking their inherent powers. This may have a negative impact inasmuch as the offender is being set free without letting him know the pain suffered by the victim only because the victim has compromised with the situation and allowed one more chance to her marital life to become peaceful only for the sake of the children in the marriage. Yet there are cases where the mediation has rendered separation agreed mutually by settling the terms and conditions between the parties with regard to the amount of alimony, maintenance, property, etc.

CIVIL COURT POWER TO DIRECT MEDIATION

Under the Indian Law, there are various provisions provided under different laws which has incorporated Mediation as the first step to resolve the dispute between the parties. The provisions are provided under the Family Court Act, Civil Procedure Code, Hindu Marriage Act, etc which we are going to elaborate further in this piece. The Courts get their required power to refer the case to Mediation or other conciliatory process under these provisions itself. Let us have a look at all the varied provisions.

Section 89 r/w Order 32A of Code of Civil Procedure,1908

Section 89 was amended due to the heavy pendency of cases which also included the matrimonial cases which outnumbered other kinds of cases. Under this new amended section 89, it was made obligatory for the Courts to refer the dispute to other modes of resolution after framing of issues i.e. Mediation, Conciliation, arbitration, etc. The Court referred mediation is specifically embodied under this section which covers all kind of civil disputes to be referred to alternate mode of resolution which also includes mediation. This option given to the parties at dispute before the Court to settle their difference outside the realm of Court gave the parties a self content feeling because instead of their lawyers voicing their intention and suffering before the Court, they could present their side to a neutral person having a face to face interaction. Since Order 32A of CPC specifically provides for settlement of the Family related disputes by way of alternate mode of resolution, it has become mandatory on the Courts to send the case for mediation before getting into the merits of the case.

Section 9 of the Family Court Act,1984

When the Family Court Act was enacted, the main objective behind establishing the Family Courts as provided in the Preamble of the Act itself was to establish the Family Courts for promoting conciliation and securing speedy settlement of the disputes concerning family and other matters connected therewith. In furtherance to this objection, Section 9 of the Family Court Act specifically provided it as a Duty of the Courts to make efforts for settlement in the family matters.

Section 23 of the Hindu Marriage Act, 1955

Under the Hindu Marriage Act, 1955 it is provided that it is the duty of the Court to make all possible efforts towards reconciliation between the parties if they are seeking divorce under fault grounds provided in Section 13 of the HMA Act. According to Clause clause (3) of the Section, for the purpose of the reconciliation, the court has full discretion to adjourn the case and refer it to the mediator – either appointed by the parties themselves or appointed by the court. Besides the above, even if the parties are seeking mutual consent divorce between them, it shall be the endeavour of the Court to refer the case to mediation or conciliation between the parties outside the Court.

Section 34 of the Special Marriage Act, 1954

This section of Special Marriage Act, 1954 is in pari materia with the provisions of Section 23 of the Hindu Marriage Act. Section 34 also provides mandatory reference of the case to mediation at the first instance for couples seeking divorce and other connected matters therewith.

CONCLUSION

A clear analyses of the above provisions and the benefits which are quite in number, it can be safely concluded that mediation is an effective remedy for resolution of matrimonial disputes. It is the solemn duty of the Family Courts and other Courts dealing with the matters concerning family and matters connected therewith to follow the provisions in its strict sense and implement them sternly for effective implementation of the Mediation provided under various provisions. The main effort of the Courts should be to settlement of the family dispute in the most effective and quick manner.